Opinion
No. A04-1683.
Filed July 5, 2005.
Appeal from the District Court, Ramsey County, File No. K6-02-3876.
Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, (for appellant)
Considered and decided by Schumacher, Presiding Judge; Peterson, Judge; and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
In this appeal from a sentence imposed for convictions of one count of third-degree controlled-substance crime, three counts of second-degree controlled-substance crime, and one count of racketeering, appellant argues that the district court erred in using the Hernandez method when sentencing. We reverse and remand.
FACTS
Between July 29, 2002, and August 31, 2002, the St. Paul Police Department conducted a surveillance operation of controlled-substance purchases in St. Paul. As a result of the operation, appellant Eric Troy Ballard was charged by complaint with (1) three counts of third-degree controlled-substance crime for selling cocaine on three separate occasions; (2) three counts of second-degree controlled-substance crime for selling cocaine in a school zone on three separate occasions; (3) six counts of committing the controlled-substance offenses for the benefit of a gang; and (4) one count of racketeering.
Appellant pleaded guilty to one count of third-degree controlled-substance crime, three counts of second-degree controlled-substance crime, and the racketeering count. In exchange for his pleas, the state agreed to dismiss the remaining counts and recommend a 90-month sentencing cap.
The district court sentenced appellant to 21 months on the third-degree controlled substance crime and to concurrent terms of 58 months, 78 months, and 88 months for the three second-degree controlled-substance crimes. The 21-month sentence was based on a criminal-history score of zero, and the criminal-history points for each offense were added to appellant's criminal-history score to determine the sentence for the next offense. After imposing the sentences for the controlled-substance crimes, the district court imposed a concurrent 21-month sentence for the racketeering offense. This sentence was based on a criminal-history score of zero. The remaining counts in the complaint were dismissed.
DECISION
Appellant argues that the district court impermissibly used the Hernandez method to calculate his criminal-history score when sentencing. Under the Hernandez method, a district court sentencing a convicted defendant on one day for multiple offenses that were not part of a single behavioral incident and that occurred at different times and involved different victims may increase the defendant's criminal-history score for each offense before sentencing the next offense. State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981).
Appellate courts will not interfere with the district court's exercise of its discretion in applying the sentencing guidelines. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983); see also State v. Taylor, 670 N.W.2d 584, 588-90 (Minn. 2003) (discussing application of and departure from guidelines). Minnesota provides by statute that "if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses." Minn. Stat. § 609.035, subd. 1 (2002). "The purpose of this statute is `to limit punishment to a single sentence where a single behavioral incident result[s] in the violation of more than one criminal statute.'" State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995) (quoting Minn. Stat. Ann. § 609.035 advisory comm. cmt. (West 1987)). If section 609.035 applies, any multiple sentences, including concurrent sentences, are barred. Id.
But there is a statutory exception from the rule set forth in section 609.035 that applies to a person who is sentenced for a racketeering conviction. A sentence for a racketeering conviction under Minn. Stat. § 609.903 "does not preclude the application of any other criminal penalty . . . for the separate criminal acts." Minn. Stat. § 609.910, subd. 1 (2002). Appellant concedes that this exception permitted the district court to sentence him for the controlled-substance offenses and the racketeering offense, but he argues that the district court could not use the Hernandez method when sentencing. We agree.
The supreme court addressed a similar sentencing issue in State v. Hartfield, 459 N.W.2d 668 (Minn. 1990). In Hartfield, the defendant was convicted of burglary and first-degree criminal sexual conduct after he unlawfully entered the victim's apartment and sexually assaulted her. Id. at 669. The defendant was sentenced first for the burglary, and then under the Hernandez method, the criminal-history point for the burglary conviction was used to determine the defendant's criminal-history score for the criminal-sexual-conduct conviction. Id. There was a statutory exception from Minn. Stat. § 609.035, that allowed sentencing for both a burglary and one of the offenses committed during a burglary even if both offenses were committed as part of a single behavioral incident. Id. at 670. The supreme court explained that it was permissible under this statutory exception to sentence the defendant "for both the burglary and the rape, but the Hernandez method could not be used to increase the criminal history score for the second offense being sentenced, rape, unless it can be said that the two offenses arose from a different course of conduct under section 609.035." Id. (emphasis in original). The supreme court then determined that the two offenses were part of a single behavioral incident and held that the Hernandez method should not have been used in sentencing. Id. at 670-71.
In State v. Huynh, 504 N.W.2d 477, 483 (Minn.App. 1993), aff'd 519 N.W.2d 191 (Minn. 1994), this court applied the supreme court's reasoning in Hartfield to a defendant who received separate sentences under the Hernandez method for five coercion offenses and one racketeering offense. This court recognized that although section 609.035 precluded sentencing for the coercion offenses and the racketeering offense, section 609.910 permitted sentencing for all of the offenses. Id. at 484. But this court also determined that "[u]nder Hartfield, the Hernandez method cannot be used to increase a defendant's criminal history score unless sentencing for more than one offense is permitted under section 609.035." Id. This court concluded that because the offenses were part of a single behavioral incident, sentencing for more than one offense was not permitted under section 609.035, and, therefore, the Hernandez method should not have been used in sentencing. Id. Consequently, this court vacated the defendant's sentence and remanded for resentencing. Id. at 485.
Under Huynh, the Hernandez method should not have been used when sentencing appellant if appellant's controlled-substance offenses and his racketeering offense were part of a single behavioral incident. "Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of the particular case." Bookwalter, 541 N.W.2d. at 294. When an offense is committed with the intent of facilitating another offense or is but a means toward committing another offense, the offenses are part of the same behavioral incident. Hartfield, 459 N.W.2d at 670; see also Bookwalter, 541 N.W.2d at 294 (explaining that when arson is the means by which defendant commits murder, defendant may not be sentenced for both offenses). To determine whether multiple offenses arose from a single behavioral incident, this court examines whether they were motivated by a single criminal objective and whether they were unified in time and place. Bookwalter, 541 N.W.2d at 294.
Appellant pleaded guilty to racketeering. "A person is guilty of racketeering if the person: (1) is employed by or associated with an enterprise and intentionally conducts or participates in the affairs of the enterprise by participating in a pattern of criminal activity." Minn. Stat. § 609.903, subd. 1(1) (2002). A "pattern of criminal activity" is defined as "conduct constituting three or more criminal acts that: . . . are neither isolated incidents, nor so closely related and connected in point of time or circumstance of commission as to constitute a single criminal offense." Minn. Stat. § 609.902, subd. 6(2) (2002). The criminal acts must also be "either: (i) related to one another through a common scheme or plan or a shared criminal purpose or (ii) committed . . . by persons acting with the mental culpability required for the commission of the criminal acts and associated with or in an enterprise involved in those activities." Id., subd. 6(3) (2002).
Appellant contends that although his controlled-substance offenses occurred at different places and times, they were motivated by and committed to sustain the narcotics enterprise, and the racketeering offense could not have been sustained without the controlled-substance offenses. Therefore, appellant argues, his conduct constituted a single behavioral incident. We agree.
The controlled-substance offenses were committed with the intent of maintaining the narcotics enterprise and were the means of committing the racketeering offense. See Huynh, 504 N.W.2d at 483 (defendant's five coercion offenses, which occurred at different times and places, were means of sustaining racketeering enterprise and means toward committing racketeering offense, and, therefore, were part of a single behavioral incident). Therefore, appellant's controlled-substance offenses and his racketeering offense were parts of a single behavioral incident, and multiple sentences were not authorized by section 609.035. See id. at 483. Because multiple sentences were not authorized by section 609.035, the Hernandez method should not have been used in sentencing. We, therefore, reverse appellant's sentence and remand for resentencing.