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Marsh Halberg

Marsh Halberg

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Tina Appleby

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Christina Zauhar

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Felony Sentencing Part III


HomePractice AreasBlogs - Felony Sentencing 3

Felony Sentencing in Minnesota – Part III: Mandatory and Presumptive Sentences

In Part I of our blog on felony sentencing in Minnesota, we looked at the differences between those states which use a determinate sentencing structure – such as Minnesota – and ones that have an indeterminate sentencing system.

In Part II, we examined the Minnesota Sentencing Guidelines and how they apply to almost every felony conviction in the state.

In Part III we will discuss cases involving mandatory and presumptive sentencing. Although this can include minimum fines, mandatory treatment and other sentencing measures, this article will address specified lengths of incarceration – mandatory prison or local jail time – in felony cases.

There are two situations where the typical presumptive sentence required by the Minnesota Sentencing Guidelines (based on severity level and criminal history) will not apply:

(1) Mandatory minimum sentences established by the Legislature. These can affect the disposition and/or the duration of incarceration; and

(2) Presumptive sentences for certain repeat offenses. These are sentences found in the Guidelines or in statute. They will affect the disposition (whether the sentence is executed or stayed) but not the duration (amount of time) of the sentence and incarceration period.

The following is a list of felony crimes in Minnesota where the legislature has required courts to apply mandatory minimum imprisonment penalties:

1. Controlled Substance Crimes

Upon a conviction for either a first-degree controlled substance crime under Minn. Stat. § 152.021 or a second-degree felony-controlled substance crime under Minn. Stat. § 152.022 within ten years after completing a sentence for a previous first-degree or second-degree felony-controlled substance crime, pursuant to Minn. Stat. § 152.01, subd.16a, the court must impose a mandatory minimum sentence of either 48 months for a first-degree conviction or 36 months for a second-degree conviction.

2. Felony DWI

A person convicted of a first-degree (felony) DWI under Minn. Stat. § 169A.24 must be sentenced by the court to a prison term of not less than 36 months. Pursuant to the Sentencing Guidelines, the court may stay execution of the minimum sentence and impose a sentence of up to 12 months in a local jail facility but may not stay imposition or adjudication of the sentence. Minn. Stat. § 169A.276

Further, the Sentencing Guidelines direct that if the current conviction is for a felony DWI and if, prior to the present offense, the person had a previous conviction for a felony DWI under Minn. Stat. § 169A.24 or Criminal Vehicular Operation as defined in Minn. Stat. § 169A.24 subd. 1(3), the presumptive sentence is a prison commitment.

As an alternative to a mandatory minimum sentence where the offender is not sentenced to prison, a court may instead order participation in an intensive probation program (DWI Court) as described in Minnesota Statutes § 169A.74, so long as the program requires that at least six consecutive days be served in a local jail or correctional facility.

3. Violation of the Predatory Offender Registration Act

Under Minn. Stat. § 243.166 (5), a sex offender or other predatory offender who knowingly violates any provision of the Predatory Offender Registration Act or intentionally provides false information under the Act to any Department of Corrections agent, law enforcement, or agent with the Bureau of Criminal Apprehension (BCA) must be sentenced to prison for at least one year and one day for a first-time offense and at least two years for repeat offenders. The court may waive the mandatory minimum sentence on either the prosecutor’s motion or on its own motion as a departure from the sentencing guidelines and, therefore, must be supported by mitigating factors.

4. Domestic Abuse Order for Protection (OFP) and No Contact Order Offenses

An offender convicted of a felony-level Order for Protection (OFP) or no contact order violation is subject to a mandatory minimum 30-day probationary jail term which may not be stayed unless the court executes a prison sentence.

Minn. Stat. § 518B.01, subd. 14; Minn. Stat. § 629.75.

5. First-Degree Murder

Persons convicted of first-degree murder under Minn. Stat. § 609.185 are subject to a mandatory life sentence. Courts must impose a sentence of life without possibility of parole where the conviction was proven to have occurred under the following circumstances:

• Premeditated murder (Minn. Stat. § 609.185(a)(1));

• Rape-murder (Minn. Stat. § 609.185(a)(2));

• Murder committed during the course of a kidnapping Minn. Stat. § 609.185(a)(3));

• Murder of a peace officer, prosecuting attorney, judge or correctional officer (Minn. Stat. § 609.185(a)(4));

• Murder conducted during the course of a felony crime to further terrorism if death occurred under circumstances where the offender manifested an extreme indifference to human life (Minn. Stat. § 609.185(a)(7)); or

• First-degree murder by an offender with one or more prior convictions for a “heinous crime” as defined in Minn. Stat. § 609.106, subd. (Minn. Stat. § 609.185(a)(3),(5),(6)).

6. Second- or Third-Degree Murder

Under Minn. Stat. § 609.107, a person convicted of second- or third-degree murder must be sentenced to the statutory maximum sentence if that person was previously convicted of a “heinous crime” as defined in Minn. Stat. § 609.106, subd. 1, within 15 years of discharge from the earlier sentence.

7. Dangerous Repeat Offenders

Under Minn. Stat. § 609.1095 (3), offenders convicted of a third violent felony must be sentenced to prison at a minimum to the presumptive sentence duration applicable under the sentencing guidelines. In cases where the presumptive guidelines sentence disposition would be a stayed sentence, the court must still execute the sentence.

8. Crimes Committed with a Firearm or Other Dangerous Weapon

Under Minn. Stat. § 609.11, subd. 4, courts must impose and execute the following minimum prison sentences for certain specified crimes involving weapon possession and/or use other than a firearm:

• One year and a day where the conviction involved a weapon (other than a firearm) that is an element of the crime or was otherwise established prior to sentencing;

• Three years where the current conviction involved a dangerous weapon (other than a firearm) where the person was convicted of a prior dangerous weapon offense (other than a firearm) or otherwise established prior to sentencing;

Under Minn. Stat. § 609.11, subd. 5(a), courts must impose and execute the following minimum prison sentences for offenses involving a firearm:

• Three years where the conviction involved a firearm that is an element of the crime or otherwise established prior to sentencing;

• Five years where the current conviction involved a firearm where the person was previously convicted of a prior firearm offense and the firearm is an element of the offense or otherwise established prior to sentencing.

Minn. Stat. § 609.11, subd. 5(b), requires the court to sentence an offender convicted possessing firearms or ammunition when legally ineligible to do under either Minn. Stat. § 609.165, or Minn. Stat. § 624.713, subd. 1(2), to a mandatory minimum prison sentence of five years.

9. Convictions for Assaults Against Peace Officers, Correctional Employees, or Secure Treatment Facility Personnel

Under Minn. Stat. § 609.221, subd. 2(b), an offender who assaults a peace officer or a correctional officer with deadly force while the officer or employee is engaged in the performance of his/her official duties is subject to a mandatory minimum sentence of ten years in prison.

Under Minn. Stat. § 609.22231, subd. 3a, a person convicted of assaulting a secure treatment facility employee who is engaged in the performance of a duty must be sentenced to a minimum term of one year and a day.

10. Repeat Domestic Assault

Under Minn. Stat. § 609.2243 (2), a person convicted of a repeat (felony) domestic assault must be sentenced to a minimum 45-day probationary jail sentence, at least 15 days of which must be served consecutively.

11. Crimes Committed for Benefit of a Gang

Under Minn. Stat. § 609.229, subd. 4, courts must impose a minimum prison sentence of one year and one day to any person convicted of a felony-level crime conducted for the benefit of a criminal gang.

12. First-Degree Sex Crimes

Under Minn. Stat. § 609.342, subd. 2, the district court is required to impose and execute a prison sentence of 144 months to any person convicted of first-degree sexual assault unless a longer sentence is required by law or if the sentencing guidelines provide that a longer sentence is appropriate. Any sentence below 144 months is a departure from the sentencing guidelines and must be supported by mitigating factors and placed on the record by the sentencing judge.

13. Second-Degree Sex Crimes

A person convicted of second-degree criminal sexual conduct that involves force or violence under Minn. Stat. § 609.343, subd. 2, is subject to a mandatory minimum executed sentence of 90 months, unless a longer sentence is required by law or if the sentencing guidelines indicate that a longer sentence is appropriate. Any sentence below 90 months is a departure from the sentencing guidelines and must be supported by mitigating factors and placed by the sentencing judge on the record.

14. Dangerous Sex Offenders

Pursuant to Minn. Stat. § 609.3455, subd. 2, courts must impose a mandatory life sentence without the possibility of release for anyone convicted of first-degree or second-degree criminal sexual conduct that involved force or violence if (1) the judge or a jury determines that at least two heinous elements exists; or (2) the offender was previously convicted for first-degree, second-degree, or third-degree criminal sexual conduct and the judge or jury determines that one heinous element existed at the time of the present offense.

Under Minn. Stat. § 609.3455, subd. 3, courts must impose a life sentence with the possibility of release to any offender convicted of first-degree or second-degree criminal sexual conduct that involved force or violence if a heinous element existed at the time of the offense.

When a court imposes an indeterminate life sentence under this provision, the offender must be sentenced to (1) a minimum term of incarceration and (2) a mandatory life sentence. The term of imprisonment will be equal to the sentence directed by the sentencing guidelines or another applicable mandatory minimum sentence. An offender will become eligible for release after serving the minimum sentence. Once released, the offender must be placed on conditional release for life.

Under Minn. Stat. § 609.3455, subd. 3a, courts must commit an offender to imprisonment to a period of time at least double the duration of presumptive sentence contained under the sentencing guidelines but not more than the statutory maximum sentence if:

(1) An executed sentence is imposed for first- through fourth-degree criminal sexual conduct or criminal sexual predatory conduct;
(2) The judge or jury determines that the offender represents a danger to public safety; and
(3) The judge or jury determines that the offender’s criminal sexual behavior is so engrained that the risk of re-offending without long-term treatment or supervision is great.

Under Minn. Stat. § 609.3455, subd. 4, courts must impose indeterminate life sentences on certain repeat offenders who commit first-degree, second-degree, third-degree, or fourth-degree criminal sexual conduct or predatory sexual conduct where:

(1) The person has two previous convictions for sex offenses; or
(2) The person has been previously convicted for a sex offense and an aggravating factor was present during the current offense to provide grounds for the court to impose an upward durational departure; or the person was sentenced to an upward durational departure for the previous sex offense conviction; or the person received a sentence either under this section or under the patterned and predatory sex offender sentencing law for the previous conviction; or
(3) the person has at least two previous sex offense convictions and the previous convictions and present offense collectively involved a minimum of three separate victims and the present offense contained an aggravating factor to provide grounds for the court to impose an upward durational departure; the person received an upward durational departure in one of the prior sex offense convictions; or the person was sentenced under either this section or the patterned and predatory sex offender sentencing law in one of the prior sex offense convictions.

Courts may not impose a life sentence if the offender’s present and prior or previous convictions are for fourth-degree criminal sexual conduct.

15. Burglary Offenses

Under Minn. Stat. § 609.582, subd. (1a), the court must sentence a person convicted of burglary of an occupied dwelling to serve a minimum of six months in a state prison or local jail for a first offense. Pursuant to Minn. Stat. § 609.11, subd. 9, the mandatory minimum sentence of incarceration under the Sentencing Guidelines must be served.

16. Other crimes.

Minn. Stat. § 609.11 subd. 9, provides that mandatory minimum sentences shall be served in cases where the crime committed involved the use of a dangerous weapon. These include kidnapping; false imprisonment; first and second-degree manslaughter; aggravated robbery; simple robbery; first-degree or aggravated first-degree witness tampering; arson in the first, second, or third degree; and drive-by shooting where the offense involved discharge of a firearm at a person, occupied dwelling, or another motor vehicle.

Given the complexity of Minnesota’s sentencing laws, it is crucial that your attorney has a thorough understanding and working knowledge of the interplay between the Minnesota Sentencing Guidelines and the current mandatory and presumptive sentencing laws.

At Halberg Criminal Defense, our team approach puts the firm’s collective knowledge and experience in your corner. Our attorneys are available 24-7 — Call us at 612-DEFENSE (612-333-3673).

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