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State v. Jerry

Court of Appeals of Minnesota

May 26, 2015

State of Minnesota, Respondent,
v.
Theodore Pierre Jerry, Appellant

Hennepin County District Court File No. 27CR133541.

SYLLABUS

I. When imposing consecutive sentences, the district court must sentence the offenses in the order in which they occurred.

II. Because the offense of burglary is defined in terms of entry and is complete upon entry, it necessarily occurs before a crime committed in the building and, therefore, must be sentenced first in compliance with the sentencing guidelines.

For Respondent: Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota.

For Appellant: Cathryn Middlebrook, Chief Appellate State Public Defender, Rochelle R. Winn, Assistant State Public Defender, St. Paul, Minnesota.

Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and Stauber, Judge. Concurring in part and dissenting in part, Schellhas, Judge.

OPINION

Page 366

STAUBER, Judge

On appeal from his convictions of and consecutive sentences for first-degree burglary and third-degree criminal sexual conduct, appellant argues that the district court erred as a matter of law by sentencing him for criminal sexual conduct first and burglary second because the burglary offense occurred first. We reverse and remand for resentencing.

FACTS

In February 2013, appellant Theodore Pierre Jerry was charged with first-degree burglary and third-degree criminal sexual conduct. Following a bench trial, the district court found that in the early morning hours of January 1, 2013, appellant entered S.E.'s home without her permission, " grabbed S.E. by her forearms[,] and used force to push her up against the bedroom

Page 367

wall," causing her to feel " afraid and helpless." The court also found that appellant then inserted his tongue and his penis into S.E.'s vagina without her consent. Thus, the district court found appellant guilty of the charged offenses.

A presentence investigation report was completed in which the probation agent recommended that appellant be sentenced to the " maximum [sentence] allowed by the [s]entencing [g]uidelines." Based on this recommendation, appellant, who has a criminal history score of six, would be sentenced consecutively for first-degree burglary first--a 129-month commit--and for third-degree criminal sexual conduct second--a 57-month commit--for a total sentence of 186 months. At sentencing, however, the state argued that because the burglary charge was " predicated" on the criminal-sexual-conduct charge, appellant should be sentenced on the criminal-sexual-conduct conviction first, and the burglary conviction second. Thus, the state requested that appellant receive a presumptive 180-month sentence for the criminal-sexual-conduct conviction, and a consecutive 57-month sentence for the burglary conviction, for a total sentence of 237 months. Appellant objected to the state's request, arguing that he should be sentenced consistently with the recommendation of the probation agent.

Relying on the state's sentencing memorandum, the district court found that because appellant's " 'burglary conviction was predicated or conditioned upon his completion of the criminal sexual conduct, the later conviction should be sentenced first.'" Therefore, the district court sentenced appellant to 180 months for the criminal sexual conduct and a consecutive term of 57 months for the burglary, for an aggregate sentence of 237 months. This appeal followed.

ISSUE

Did the district court err by sentencing appellant for criminal sexual conduct ...


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