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State v. Bishop

Court of Appeals of Minnesota

June 3, 2013

State of Minnesota, Respondent,
v.
Frederick Neal Bishop, Appellant.

UNPUBLISHED OPINION

Stearns County District Court File No. 73-CR-10-6595.

Lori Swanson, Attorney General, St. Paul, Minnesota; and Janelle P. Kendall, Stearns County Attorney, Carl Ole Tvedten, Assistant County Attorney, St. Cloud, Minnesota (for respondent).

David W. Merchant, Chief Appellate Public Defender, Cathryn Young Middlebrook, Assistant Public Defender, St. Paul, Minnesota (for appellant).

Considered and decided by Cleary, Presiding Judge; Kalitowski, Judge; and Hooten, Judge.

CLEARY, Judge.

In this sentencing appeal, appellant Frederick Bishop argues that the district court abused its discretion when it denied his request for a minimum presumptive guidelines sentence following his conviction of a second-degree controlled-substance offense. The court instead sentenced appellant to 120 months, which is at the high end of the presumptive sentencing range on the guidelines grid, or "the box." Because the district court did not abuse its discretion, we affirm.

FACTS

Appellant has an extensive criminal history and has spent much of his adult life in prison. He was most recently released in April 2010. Two months after his release, St. Cloud police officers met with a confidential informant who made arrangements for, and successfully completed, five controlled buys of crack cocaine from appellant over the course of approximately two weeks. Appellant was charged by complaint with a second-degree controlled-substance offense for the sale of three grams or more within a 90-day period, in violation of Minn. Stat. § 152.022, subd. 1(1) (2008). The state filed a notice of intent to seek an aggravated durational departure from the Minnesota Sentencing Guidelines based on appellant's previous convictions. Appellant filed a notice of entrapment defense, posted bond, and was released from jail.

In September 2011, the state extended a plea offer to appellant reflecting a bottom-of-the-box sentence of 92 months. That same month appellant violated an order for protection. In November 2011, appellant failed to appear for his jury trial and committed a false-name offense. In January 2012, while awaiting his trial, which was set for April 10, appellant was arrested attempting to flee police in a stolen vehicle. Appellant was charged with additional felony counts and remained in custody pending trial. The state withdrew the bottom-of-the-box plea offer after appellant was charged with these additional crimes. Appellant also declined a subsequent plea offer from the state, this one reflecting a 108-month middle-of-the-box sentence.

On the date of appellant's trial, the parties settled on a plea agreement. Appellant entered, and the district court accepted, a guilty plea to one count of second-degree sale of a controlled substance. The state agreed not to argue for an upward departure at sentencing, and appellant agreed to waive his entrapment defense. The agreement also called for a presumptive guidelines sentence of no more than 129 months (the top of the box) to the Commissioner of Corrections and otherwise left sentencing discretion to the court and appellant free to argue for a lesser duration.

At the sentencing hearing held June 8, 2012, the state requested a top-of-the-box guidelines sentence of 129 months, while appellant requested a bottom-of-the-box guidelines sentence of 92 months. Appellant argued that, because law enforcement chose to set up multiple controlled-buy transactions with him instead of arresting him after the first sale, he was charged more severely than necessary and should therefore be sentenced at the bottom of the applicable guidelines range. Appellant testified that he was remorseful for his crime; that he was apologetic to his victims; and that he was tired of living the life of a drug addict.

The court sentenced appellant to 120 months to the Commissioner of Corrections, a sentence within the plea agreement and within the presumptive ...


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