State of Minnesota v. Theodore Pierre Jerry

864 N.W.2d 365, 2015 Minn. App. LEXIS 30, 2015 WL 2456987
Court of Appeals of Minnesota·Decided May 26, 2015·No. A14-1086·Published·Cited by 1 cases

Opinions

OPINION

STAUBER, Judge.

On appeal from his convictions of and consecutive sentences for first-degree burglary and third-degree criminal sexual conduct, appellant argues that the district court erred as a matter of law by sentencing him for criminal sexual conduct first and burglary second because the burglary offense occurred first. We reverse and remand for resentencing.

FACTS

In February 2013, appellant Theodore Pierre Jerry was charged with first-degree burglary and third-degree criminal sexual conduct. Following a bench trial, the district court found that in the early morning hours of January 1, 2013, appellant entered S.E.’s home without her permission, “grabbed S.E. by her forearms[,] and used force to push her up against the bedroom [367] wall,” causing her to feel “afraid and helpless.” The court also found that appellant then inserted his tongue and his penis into S.E.’s vagina without her consent. Thus, the district court found appellant guilty of the charged offenses.

A presentence investigation report was completed in which the probation agent recommended that appellant be sentenced to the “maximum [sentence] allowed by the [sentencing [g]uidelines.” Based on this recommendation, appellant, who has a criminal history score of six, would be sentenced consecutively for first-degree burglary first — a 129-month commit — and for third-degree criminal sexual conduct second — a 57-month commit — for a total sentence of 186 months. At sentencing, however, the state argued that because the burglary charge was “predicated” on the criminal-sexual-conduct charge, appellant should be sentenced on the'criminal-sexual-conduct conviction first, and the burglary conviction second. Thus, the state requested that appellant receive a presumptive 180-month sentence for the criminal-sexual-conduct conviction, and a consecutive 57-month sentence for the burglary conviction, for a total sentence of 287 months. Appellant objected to the state’s request, arguing that he should be sentenced consistently with the recommendation of the probation agent.

Relying on the state’s sentencing memorandum, the district court found that because appellant’s “ ‘burglary conviction was predicated or conditioned upon his completion of the criminal sexual conduct, the later conviction should be sentenced first.’” Therefore, the district court sentenced appellant to 180 months for the criminal sexual conduct and a consecutive term of 57 months for the burglary, for an aggregate sentence of 287 months. This appeal followed.

ISSUE

Did the district court err by sentencing appellant for criminal sexual conduct first and burglary second?

ANALYSIS

This court may review a “sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.” Minn.Stat. § 244.11, subd. 2(b) (2014). “Statutory construction and interpretation of the sentencing guidelines are subject to de novo review.” State v. Johnson, 770 N.W.2d 564, 565 (Minn.App.2009).

Generally, sentences imposed for multiple offenses committed in a single behavioral incident are presumptively concurrent. State v. Crocker, 409 N.W.2d 840, 845 (Minn.1987). But under section 609.035, subdivision 6, this presumption does not apply when, as here, one of the sentences is for criminal sexual conduct involving force or violence. See Minn.Stat. § 609.035, subd. 6 (2012); see also Minn. Stat. § 609.585 (2012) (“Notwithstanding section 609.04, a prosecution for or conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered.”). And the sentencing guidelines are consistent with this statute, providing that consecutive sentences are always permissive when sentencing for “Criminal Sexual Conduct in the First through Fourth Degrees with force or violence.” Minn. Sent. • Guidelines 2F2.a(2)(iii) (2012). The sentencing guidelines further provide that “[w]hen the court imposes consecutive sentences, the court must sentence the offenses in the order in which they occurred.” Id. 2.F. (2012); State v. Williams, 771 N.W.2d 514, [368]*368522 (Minn.2009) (stating that multiple offenses are sentenced in the order in which they occurred).

The parties here do not dispute that consecutive sentencing was permissive and not erroneous. But appellant argues that the district court “erred as a matter of law by sentencing [him] for criminal sexual conduct first and burglary second” when the burglary occurred prior to the criminal sexual conduct. We agree.

Appellant was charged with first-degree burglary under Minn.Stat. § 609.582, subd. 1 (2012). This statute provides:

Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $35,000, or both, if:
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(c) the burglar assaults a person within the building or on the building’s appurtenant property.

Id.

The state argues that because appellant was convicted of first-degree burglary under section 609.582, subdivision 1(c), “the appropriate order of sentencing was to sentence the third-degree criminal sexual conduct first and then sentence on the first-degree burglary.” The state reasons that “the burglary charge in this case was predicated on the criminal sexual conduct charge so ... in the charging clause ... the burglary required the Court to find that an assault had occurred, and the only assault that was alleged in connection with the case was the criminal sexual conduct charge.”

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State of Minnesota v. Theodore Pierre Jerry, 864 N.W.2d 365, 2015 Minn. App. LEXIS 30, 2015 WL 2456987 (Mich. Ct. App. 2015).

864 N.W.2d 365 (State of Minnesota v. Theodore Pierre Jerry) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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