Criteria for Imposing a Permissive Consecutive Sentence. Consecutive sentences are permissive (may be given without departure) only in the situations specified in this section.
(1) Specific Offenses; Presumptive Commitment.
Consecutive sentences are permissive if the presumptive disposition for the current offense(s) is commitment, as outlined in section 2.C, and paragraph (i), (ii), or (iii) applies. If the court pronounces a consecutive stayed sentence under one of these paragraphs, the stayed sentence is a mitigated dispositional departure, but the consecutive nature of the sentence is not a departure. The consecutive stayed sentence begins when the offender completes the term of imprisonment and is placed on supervised release.
(i) Prior Felony Sentence. ․
(ii) Multiple Current Felony Convictions. If the offender is being sentenced for multiple current felony convictions for crimes on the list of offenses eligible for permissive consecutive sentences in section 6, the convictions may be sentenced consecutively to each other.
(iii) Felony Conviction After Escape (Non-Executed Sentence).
Minn. Sent'g Guidelines 2.F.2.a. (emphasis added).
Arola Johnson relies on the first sentence of 2.F.2.a.(1) italicized above. He contends that
permissive consecutive prison sentences are not authorized in this case because the presumptive sentence for each of his offenses is a stayed sentence, not an executed sentence that would require his commitment. In response, the state relies on the second sentence of 2.F.2.a.(1) italicized above. The state contends that the second sentence authorizes permissive consecutive sentences in this case because it provides that a consecutive sentence is “not a departure” and, thus, it is unnecessary for the district court to state reasons for a departure.
We interpret section 2.F.2.a.(1) in the manner urged by Arola Johnson. The general rule of section 2.F.2.a.(1) is contained in its first sentence, which has two requirements: first, that the presumptive sentence is an executed sentence and, second, that one of the three following paragraphs applies. Id.
The first requirement of the first sentence is not satisfied because the presumptive sentence for each of Arola Johnson's offenses is a stayed sentence, not commitment. The second sentence of section 2.F.2.a.(1), on which the state relies, would apply only if the requirements of the first sentence were satisfied and only if the district court actually imposed consecutive permissive sentences. The second sentence does not limit or qualify the applicability of the first sentence and does not contain an independent authorization for permissive consecutive sentences; the second sentence merely determines the character of a stayed nature and the consecutive nature of consecutive permissive sentences.
State v. Arola Johnson, A23-0134 (Minn. Ct. App. December 4, 2023)