                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-0368

                                 State of Minnesota,
                                      Appellant,

                                         vs.

                                Esteban J. Ramos, Jr.,
                                     Respondent

                               Filed August 24, 2015
                              Reversed and remanded
                                 Klaphake, Judge*

                           Kandiyohi County District Court
                              File No. 34-CR-14-626

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Shane D. Baker, Kandiyohi County Attorney, Stephen J. Wentzell, Assistant County
Attorney, Willmar, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant
Public Defender, St. Paul, Minnesota (for respondent)

      Considered and decided by Peterson, Presiding Judge; Stauber, Judge; and

Klaphake, Judge.




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

KLAPHAKE, Judge

       Appellant Esteban Ramos, Jr., pleaded guilty to the crime of second-degree sale of

a controlled substance in November 2014. Over the state’s objection, the district court

granted appellant a dispositional departure from the sentencing guidelines, and it ordered

him to serve a prison term of 117 months but stayed the sentence for 20 years and placed

him on probation. The state appealed. We reverse the district court’s sentence because

the court did not have the discretion to stay execution of appellant’s prison term, and we

remand to the district court for resentencing.

                                     DECISION

       The state argues that the district court was required to sentence appellant to prison

for at least three years under Minnesota Statutes section 152.022, subdivision 3(b)

(2014).1 Whether this statute requires a mandatory-minimum term of incarceration is a

question of statutory construction that this court reviews de novo. State v. Bluhm, 676

N.W.2d 649, 651 (Minn. 2004).

       Appellant was charged with second-degree sale of a controlled substance under

Minnesota Statutes section 152.022, subdivision 1(1) (2014).         Because he had two

previous controlled-substance convictions, the following provision of that section also

1
   Appellant argues that the state forfeited this argument because as part of the plea
agreement it agreed that appellant could argue for a departure. But the state clearly
opposed the departure and expressed its opposition at both the plea hearing and the
sentencing hearing. Because this issue was raised to the trial court and not just on appeal,
the state did not forfeit this argument. See State v. Sorenson, 441 N.W.2d 455, 457
(Minn. 1989) (“Usually, we will not decide issues which are not first addressed by the
trial court and are raised for the first time on appeal . . . .”).

                                             2
applied: “If the conviction is a subsequent controlled substance conviction, a person

convicted under subdivision 1 . . . shall be committed to the commissioner of corrections

for not less than three years . . . .” Minn. Stat. § 152.022, subd. 3(b). “A defendant

convicted and sentenced to a mandatory sentence under sections 152.021 to 152.025 . . .

is not eligible for probation, parole, discharge, or supervised release until that person has

served the full term of imprisonment as provided by law . . . .” Minn. Stat § 152.026

(2014).

       In State v. Adams, this court reversed a district court’s decision to stay execution

of a defendant’s sentence where the defendant was convicted of a subsequent controlled-

substance offense. 791 N.W.2d 757, 757 (Minn. App. 2010), review denied (Minn. Mar.

15, 2011).    The Adams court held: “Because Adams’s conviction in this case is a

subsequent controlled-substance conviction, we conclude that sections 152.022,

subdivision 3(b), and 152.026 mandate an executed prison sentence of three years; they

prohibit a stay of execution of sentence and probation.” Id. at 759. The court reversed

and remanded the district court’s decision to stay execution of the defendant’s sentence

because “[t]he district court lacked discretion to place Adams on probation instead of

committing her to the minimum term called for in section 152.022, subdivision 3(b).” Id.

       The district court here similarly lacked discretion to stay execution of appellant’s

sentence.    We recognize appellant’s contentions that mandatory-minimum sentences

essentially tie a district court’s hands and that there has been a societal shift from

mandatory-minimum sentencing in recent years, but we must apply the law. See State v.

McCormick, 835 N.W.2d 498, 510 (Minn. App. 2013) (stating that it is not this court’s


                                             3
role to abolish established law), review denied (Minn. Oct. 15, 2013).      Pursuant to

sections 152.022, subdivision 3(b), and 152.026, as they have plainly and consistently

been interpreted since Adams, the district court was required to sentence appellant to a

minimum of three years in prison, and it erred by failing to do so. We reverse the

sentence and remand for the district court to resentence appellant consistent with this

opinion.

      Reversed and remanded.




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