State v. Johnson

316 N.W.2d 511, 1982 Minn. LEXIS 1470

Opinion

AMDAHL, Chief Justice.

This is a sentencing appeal. The defendant pled guilty to a charge of attempting to procure a controlled substance by fraud, Minn.Stat. §§ 152.09, subd. 2(1) and 152.15, subd. 3 (1980). Since these statutes treat the actor the same whether he actually procures a controlled substance or only attempts to procure a controlled substance, the “halving provision” for attempt convictions established by the Minnesota Sentencing Guidelines and Commentary, II.G. does not apply. Therefore, the presumptive sentence for defendant’s offense (a severity level I offense) by one with defendant’s criminal history score (six) was not a stayed sentence of 1 year and 1 day in prison but a stayed sentence of 24 months in prison.¹ The trial court imposed an executed prison term of 27 months in prison, thereby departing both dispositionally and durationally.

We affirm the dispositional departure because the record supports the trial court’s conclusion that defendant is una-menable to probation, State v. Park, 305 N.W.2d 775 (Minn.1981). It is unclear whether the trial court intended to depart durationally. The fact that the departure report focuses on grounds for dispositional departure suggests that the imposition of a 27-month rather than the presumptive prison term may have been inadvertent. In any event, since the record does not establish the presence of aggravating circumstances justifying a durational departure, we reduce the duration of defendant’s prison term to 24 months, the presumptive sentence duration.

Affirmed as modified.

1 . The presumptive sentence has since been amended with respect to crimes committed on or after August 1, 1981, to an executed prison term of 24 months rather than a stayed term.