Opinion
No. A04-1068.
Filed November 23, 2004.
Appeal from the District Court, Clay County, File No. K9-03-1860.
Mike Hatch, Attorney General and
Lisa Borgen, Clay County Attorney, (for respondent).
John Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, (for appellant).
Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Forsberg, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
On appeal, Joseph Schiele challenges the district court's imposition of a consecutive sentence for his second conviction of violation of an order for protection against his ex-wife. Because the consecutive sentence was not permissive under the guidelines, we reverse and remand with instructions to impose the presumptive sentence under the guidelines, an 18-month concurrent sentence with stayed execution.
FACTS
Joseph Schiele appeals the second of two sentences imposed for violation of an order for protection. In the first violation, Schiele arrived at the school where his ex-wife worked and threw their daughter's bag into the classroom. The order provided that he must not enter her workplace. Upon his conviction, the district court sentenced Schiele to a year-and-a-day sentence with execution stayed, the presumptive sentence under the guidelines.
In the second violation, Schiele dropped their daughter off within a block of his ex-wife's house. This conduct violated the order for protection, which prohibited Schiele from coming within a block of her home. A jury found him guilty of violating the protective order.
The district court arrived at its sentence for this second violation by using a criminal history score of two, one for a prior felony and one for Schiele's probationary status. A severity level of four has been assigned to the offense of violation of an order for protection. Minn. Sent. Guidelines V. In accord with the presumptive sentence articulated in the PSI, the district court then imposed an 18-month sentence with a stay of execution. It ruled that this sentence was to run consecutively to the previous sentence. In imposing this sentence, the district court indicated: "This is a guideline sentence. There's no reason to depart that's been presented." This appeal follows.
DECISION
An appellate court will not interfere with the district court's decision regarding sentencing unless there has been a clear abuse of discretion. State v. Lundberg, 575 N.W.2d 589, 591 (Minn.App. 1998), review denied (Minn. May 20, 1998). Whether the imposition of consecutive sentences is proper is a question within the discretion of the district court. State v. Allen, 482 N.W.2d 228, 231 (Minn.App. 1992), review denied (Minn. Apr. 13, 1992). When "the underlying issue . . . is how to calculate the presumptive disposition for a sentence made consecutive to another sentence, [it] involves the interpretation of the sentencing guidelines, and, therefore, presents a question of law subject to de novo review." State v. Watkins, 650 N.W.2d 738, 741 (Minn.App. 2002) (citing State v. Roloff, 562 N.W.2d 29, 30 (Minn.App. 1997)). "[T]he guidelines explicitly provide that sentencing consecutive to a prior unexpired sentence is permissive only when `the presumptive disposition for the current offense(s)' is an executed sentence." Id. at 743 (quoting Minn. Sent. Guidelines II.F). Therefore, consecutive sentencing is only permissible when the guidelines presumptively require commitment to the Commissioner of Corrections unless the judge explicitly chooses to depart. State v. Munger, 597 N.W.2d 570, 573 (Minn.App. 1999), review denied (Minn. Aug. 25, 1999).
Violation of an order for protection is a severity level four offense. Minn. Sent. Guidelines V. With a point for a prior felony conviction as well as one for his probation, Schiele had a criminal history score of two. The presumptive sentence for a person with a criminal history score of two and an offense with a severity level of four is an 18-month sentence with a stay of execution. Id. at IV. This sentence does not involve commitment to the Commissioner of Corrections. Id. at II.E.02.
Because the presumptive sentence does not require commitment to the Commissioner of Corrections, a consecutive sentence is not permissive. An imposition of a consecutive sentence that is not permissive constitutes a departure from the sentencing guidelines. Id. at II.F. The district court clearly indicated that it did not intend to depart from the guidelines, and no findings supported such a departure. Thus, the district court erred in imposing a consecutive sentence. See generally State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003) (holding that no departure will be allowed if reasons for departure are not placed on the record at the time of sentencing).
Concluding that the consecutive sentence was not permissive under the guidelines because it presumptively involved a stay of execution, we need not consider appellant's alternative argument as to why the sentence was not permissive. Similarly, we do not reach the issue of whether the duration of the consecutive sentence was proper.
Accordingly, we reverse and remand with specific instructions that the district court, on remand, impose a concurrent sentence of 18 months with a stay of execution, the presumptive guidelines sentence.