State v. Banks

331 N.W.2d 491, 1983 Minn. LEXIS 1098
CourtSupreme Court of Minnesota
DecidedApril 1, 1983
DocketC5-82-1214, C7-82-1215
StatusPublished
Cited by27 cases

This text of 331 N.W.2d 491 (State v. Banks) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Banks, 331 N.W.2d 491, 1983 Minn. LEXIS 1098 (Mich. 1983).

Opinions

KELLEY, Justice.

This is a sentencing appeal. At issue is the computation of the defendant’s criminal history score. This in turn involves determining whether two offenses, for which defendant was sentenced using the so-called Hernandez method of computing the criminal history score,1 were committed as part of a single behavioral incident or course of conduct. A related issue is whether the prosecutor breached a promise not to make any recommendation as to the sentence defendant should receive or as to the computation of defendant’s criminal history score and, if so, what relief would be justified on that ground.

Defendant is 26 years old. His prior felony record consists of burglary convictions in 1973 and 1976. He also had three prior misdemeanor convictions for which a sentence was stayed or imposed.

On December 21, 1981, defendant was charged in a three count complaint with having committed three offenses on December 20, 1981: L, unlawful possession of a pistol by a felon, II., possession of a pistol without a permit, and III., fleeing a police officer in a motor vehicle.

On January 21, 1982, defendant was charged in a four count compláint with having committed four offenses on October 13, 1981: I., aggravated forgery, II., uttering a forged instrument, III., aggravated forgery, IV., uttering a forged instrument.

On April 12, 1982, defendant entered guilty pleas to Count II of the complaint filed on January 21, 1982, and to Counts I and III of the earlier complaint. In other words, he pleaded guilty to one count of uttering a forged instrument on October 13, 1981, and counts of being a felon in possession of a pistol and fleeing a police officer in a motor vehicle on December 20, 1981. Defendant’s attorney stated that the parties had agreed that all three counts would be sentenced concurrently and that the prosecutor would make no recommendation as to sentence and no recommendation concerning the aggregation of criminal history points under the so-called Hernandez method and no objection to defendant receiving credit for time served. The prosecutor stated that this was his understanding of the agreement.

The matter came on for sentencing on May 24, 1982, following the completion of the presentence investigation report, which recommended that the Hernandez method be used, with defendant being sentenced first for the uttering, then for the fleeing, then for the possessory offense. Defense counsel argued that the possessory offense and the offense of fleeing the police officer were committed as part of a single behavioral incident and that therefore defendant could be sentenced only for one of them. The prosecutor argued that the incidents were separate. Defense counsel reminded the prosecutor of the terms of the agreement, but the prosecutor claimed that there was nothing in the agreement barring him from speaking to this issue. The court at first sided with the prosecutor, saying that the prosecutor had a right to say what he had said. Defense counsel then had the court reporter read back the terms of the agreement as read into the record on April 12. The court then apparently agreed with defense counsel’s interpretation of the agreement. However, the prosecutor later argued that the offenses were not part of a single behavioral incident.

The trial court sentenced defendant as recommended by the person who prepared the presentence investigation report. That is, the court sentenced defendant to 14 months stayed for the uttering (severity level II, criminal history score of two), 1 [493]*493year m the workhouse for the gross misdemeanor offense of fleeing the police, and 22 months in prison for possession of the pistol (severity level III, criminal score of four). The criminal history score of four was based on three felony points (the two priors and the uttering) and one gross misdemean- or/misdemeanor point (based on three prior misdemeanor points and two gross misdemeanor points for the fleeing). The trial court made the sentences concurrent. The court executed the sentence for the posses-sory offense because he believed that defendant was not amenable to probation. The court stated that even if the two offenses committed on December 20, 1981, were not part of the same behavioral incident it still felt that the 22-month sentence was valid because there were aggravating circumstances present, “namely, that the defendant not only unlawfully possessed a pistol but that he actually drew that pistol from his holster during the course of a scuffle with a St. Paul Police Officer.” Defense counsel contested this characterization.

Defense counsel concedes on appeal that the defendant was not amenable to probation and that therefore the refusal to stay the sentence was proper. However, he argues, as he did in the trial court, that the offense of fleeing the police officer was committed as part of the same behavioral incident as the possessory offense and that therefore the sentence for the possessory offense should have been 19 months, not 22. The effect of reducing defendant’s sentence to 19 months would be that he would get out of prison 2 months earlier, assuming good time.

1. If the two offenses committed on December 20,1981, were part of a single behavioral incident, then under Minn.Stat. § 609.035 (1982), the defendant should have been sentenced only for one of them and he would be entitled to have the gross misdemeanor sentence vacated and the sentence for the possessory offense reduced to 19 months.

Minn.Stat. § 609.035 (1982) provides, in relevant part:

[I]f a person’s conduct constitutes more than one offense under the laws of this state he may be punished for only one of such offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.

In deciding whether nonintentional crimes or a mixture of nonintentional and intentional crimes were part of the same course of conduct, one must analyze the facts and determine whether the offenses “[arose] out of a continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.” State v. Sailor, 257 N.W.2d 349, 352 (Minn.1977); State v. Johnson, 273 Minn. 394, 405, 141 N.W.2d 517, 525 (1966). In deciding whether two or more intentional crimes were part of the same course of conduct, one must focus on the factors of time and place and also consider whether the segments of conduct involved were motivated by an effort to obtain a single criminal objective. State v. Johnson, 273 Minn, at 404, 141 N.W.2d at 525.

This is not a mechanical test but one which involves an examination of all the facts and circumstances of the case. We explained this as follows in State v. Zuehlke, 320 N.W.2d 79, 82 (Minn.1982):

That there is a factual nature to the determination by the trial court — something which we explicitly recognized in State v. Kemp, 305 N.W.2d 322, 326 (Minn.1981) — is illustrated by considering the case of State v. Finn, 295 Minn. 520, 203 N.W.2d 114

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Bluebook (online)
331 N.W.2d 491, 1983 Minn. LEXIS 1098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-banks-minn-1983.