State v. Doherty

419 N.W.2d 624, 1988 Minn. App. LEXIS 60, 1988 WL 9929
CourtCourt of Appeals of Minnesota
DecidedFebruary 16, 1988
DocketNo. CX-87-1566
StatusPublished
Cited by1 cases

This text of 419 N.W.2d 624 (State v. Doherty) is published on Counsel Stack Legal Research, covering Court of Appeals 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. Doherty, 419 N.W.2d 624, 1988 Minn. App. LEXIS 60, 1988 WL 9929 (Mich. Ct. App. 1988).

Opinion

OPINION

HUSPENI, Judge.

Appellant, William Doherty, pleaded guilty to escape in violation of Minn.Stat. § 609.485, subd. 2(1) (1986); and to unauthorized use of a motor vehicle in violation of Minn.Stat. § 609.55, subd. 2 (1986). The trial court sentenced him to an executed sentence of thirteen months for unauthorized use of a motor vehicle consecutive to one year and one day for escape; both sentences were consecutive to the unexpired sentence for burglary being served by appellant at the date of the escape. The sentence was a dispositional departure from the presumptive sentence authorized by the Minnesota Sentencing Guidelines. The trial court granted jail credit for time served after the supervised release date for a burglary conviction. Appellant argues that the trial court erred in departing from the presumed sentence for unauthorized use of a motor vehicle; in imposing consecutive sentences; and in calculating jail credit. We affirm in part and reverse in part.

FACTS

On August 13, 1985, appellant was sentenced to probation of one year and one day for third degree burglary. Appellant’s probation was revoked after he committed a second burglary in October of 1985. On December 11, 1985, appellant was sentenced for second degree burglary to the Commissioner of Corrections for a period of twenty-seven months. (He also served a year and a day on the revoked third degree burglary conviction.) It was while appellant was serving the final portion of his second degree burglary sentence in the Minnesota Correctional Facility at Willow River Camp, that the incidents giving rise to this appeal occurred.

On February 13, 1987, appellant accompanied by another inmate left Willow River Camp without permission. The two men took bicycles from the Camp workshop and rode to Sturgeon Lake, a nearby town. There they went to the Squirrel Cage Bar [626]*626to purchase vodka so that they could “get drunk” after returning to the correctional facility. Upon leaving the Squirrel Cage, they came upon a flatbed truck with its engine running parked outside the bar. The men decided that rather than ride into a head wind, they would drive the truck back to Willow River Camp. Approximately one mile from the Camp, they drove the truck off the road into the woods. They abandoned the truck and walked back to Willow River Camp.

Upon their return, appellant and his companions drank the vodka and appear to have become intoxicated. In the early hours of February 14,1987, appellant and a second inmate absconded from the Camp. They hitched a ride into the Twin Cities and visited with a girlfriend. The next day they moved to a second girlfriend’s home.

On February 14, 1987, Deputy Sheriff Grinde discovered the flatbed truck in the woods, smashed into a tree. The truck body was damaged and the windshield was shattered. Two chain saws and two 5-gal-lon gas cans had disappeared from the cab.

Appellant was arrested in Ramsey County on February 19,1987. The owner of the Squirrel Cage identified appellant as visiting the bar at the time the truck was reported stolen. On February 25, 1987, appellant was charged with escaping from Willow River Camp. He was later charged with UUMV, theft and aggravated criminal damage to the truck.

On April 23, 1987, appellant entered guilty pleas to the UUMV and escape charges. The plea agreement recommended dismissal of the theft and criminal damage charges; imposition of the presumptive sentence for the UUMV charge; a one year and one day concurrent sentence for the escape charge; and credit for time served. After a brief hearing, the trial court referred the matter to the department of corrections for a presentence investigation.

The presentence report was prepared by Willow River Camp personnel and recommended:

[T]hat subject be committed to the Commissioner of Corrections for a period of 13 months for the UUMV and given a consecutive sentence of 12 months and 1 day on the Escape. The UUMV sentence is a departure from the guidelines, but the offense was committed while he was an inmate at a state correctional institution, thus it seems absurd he should be able to commit a felony and not receive additional time.

Appellant had a criminal history score of 3 at the time of sentencing on the escape and UUMV convictions; the severity levels for these offenses are III and I, respectively. The presumptive sentence for escape is 17 months executed; the presumptive sentence for UUMV is a 13 month stayed sentence. The sentence on appellant’s third degree burglary conviction expired on October 30,1986, while the sentence on the second degree burglary will expire on January 28, 1988. Appellant’s scheduled supervised release date for the burglary offense was May 5, 1987.

On May 14, 1987, appellant appeared before the trial court for sentencing. The trial court considered the presentencing report prepared by the department of corrections, and stated:

It’s my understanding [the department of corrections’] recommendation would be that 13 month sentence be executed, which would be a dispositional departure. State would agree with that, in part due to what has occurred with regards to the other two defendants in this matter, * * * with regards to the unauthorized use and * * * to the escape charge.
Mr. Doherty is the only individual involved in both charges. Therefore, we would concur in the recommendation of [the department of corrections.]

In executing the sentence for UUMV, the trial court stated:

What I’m going to do in the unauthorized use of a motor vehicle is — I should note for the record that this will be arguably departure, so I will need a departure report, although it is my conclusion that it is probably not actually a departure, based on a conversation I had with the executive director of the sentencing [627]*627guidelines commission in connection with a companion case * * *.
At any rate, the sentencing worksheet does recommend a stay of the 13-month sentence based upon a criminal history score of three, for this theft. The conversation I had with the director of the sentencing guidelines commission had to do with her telling me that the guidelines commission had just adopted a new provision relating to departures, and that provision, as I understand it, from what she told me, is that it is not a departure to execute a sentence for an offense that occurred while a defendant was on escape status, separate and apart from the charge of escape itself.

Appellant was sentenced to 13 months executed for the UUMV with jail credit for time served after May 5, 1987, the supervised release date for the burglary offense.

In addition, appellant was sentenced to a consecutive sentence of one year and one day for the escape. After passing sentence, the trial court stated:

[A] total of 25 months and one day for this event * * * is a rather lengthy sentence. On the other hand, each of these offenses occurred when you were in custody of the commissioner of corrections and to sentence concurrently I think would minimize the criminality of your conduct, due to the fact you were a prisoner when you committed those offenses and hopefully in the process of being corrected at that time.

Appellant requests that he be resen-tenced to concurrent terms of fifteen months for escape and seventeen months for unauthorized use of a motor vehicle.

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Related

State v. Schenk
427 N.W.2d 12 (Court of Appeals of Minnesota, 1988)

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Bluebook (online)
419 N.W.2d 624, 1988 Minn. App. LEXIS 60, 1988 WL 9929, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-doherty-minnctapp-1988.