                          This opinion will be unpublished and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
                                     A14-0844

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                               Raheem Michael Kemokai,
                                     Appellant.

                                  Filed June 15, 2015
                                Reversed and remanded
                                    Hudson, Judge

                               Clay County District Court
                                File No. 14-CR-13-2696

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

Brian Melton, Clay County Attorney, Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Renee Bergeron, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Smith,

Judge.

                         UNPUBLISHED OPINION

HUDSON, Judge

         In this appeal following his convictions of second-degree aggravated robbery,

fleeing a police officer in a motor vehicle, and criminal damage to property, appellant

challenges the district court’s decision to impose sentences that constitute upward
durational departures from the presumptive guidelines sentences. Because we conclude

that the district court’s grounds for the departures are not justified by the record, we

reverse and remand for the imposition of the presumptive sentences.

                                         FACTS

       In August 2013, appellant Raheem Michael Kemokai entered a service center

located in Moorhead, Minnesota, told the attendant that he had a gun, and demanded that

the attendant give him money from the cash register. He later fled from responding law

enforcement officers in a motor vehicle, driving at a high rate of speed for several blocks

before crashing into a residential yard after a police officer placed “stop sticks” in his

path. The state of Minnesota subsequently charged appellant with first-degree aggravated

robbery, second-degree aggravated robbery, fleeing a police officer in a motor vehicle,

and criminal damage to property. The state also filed a notice of its intent to seek an

upward sentencing departure on the grounds that appellant had two or more convictions

for violent crimes and represented a danger to public safety under Minn. Stat. § 609.1095

(2012). The jury found appellant guilty of all charges except for first-degree aggravated

robbery.

       At the subsequent sentencing trial, the state introduced into evidence certified

copies of appellant’s three previous felony convictions. The first conviction, conspiracy

to commit armed robbery, was for acts occurring on February 15, 2011; the second

conviction, robbery, was for acts occurring on March 11, 2011; and the third conviction,

conspiracy to commit armed robbery, was for acts occurring on March 12, 2011.




                                            2
Appellant pleaded guilty to each of the offenses on January 23, 2012. The jury found that

appellant was a danger to public safety.

       Based on the jury’s finding, the district court imposed a 120-month prison

sentence on the second-degree aggravated robbery offense, a 36-month-and-one-day

consecutive prison sentence on the fleeing offense, and a 24-month concurrent prison

sentence on the criminal damage to property offense. The 120-month sentence imposed

for second-degree aggravated robbery represented an upward departure from the

presumptive 57-month sentence and the 36-month sentence imposed for fleeing a police

officer in a motor vehicle represented an upward departure from the presumptive one

year and one day sentence.

       The day after the sentencing hearing, the district court reconvened the parties to

clarify its sentencing order. The district court informed the parties that it considered

appellant’s criminal history score to be zero when it calculated the consecutive sentence

that it imposed for fleeing a police officer in a motor vehicle, that the presumptive

sentence for that offense was a stayed sentence of one year and one day, and that an

upward departure was warranted based on “the exceptionally egregious nature of the

crime” and the jury’s finding that appellant was a danger to public safety. This appeal

follows.

                                     DECISION

                                            I

       Appellant argues that the district court erred in departing upward from the

presumptive sentence for second-degree aggravated robbery because the record does not


                                           3
support the district court’s application of the dangerous-offender sentencing

enhancement. A district court must order the presumptive sentence specified in the

sentencing guidelines unless there are “identifiable, substantial, and compelling

circumstances” to warrant an upward departure from the presumptive sentence. Minn.

Sent. Guidelines 2.D.1 (2014). Substantial and compelling circumstances demonstrate

“that the defendant’s conduct was significantly more or less serious than that typically

involved in the commission of the offense in question.” State v. Edwards, 774 N.W.2d

596, 601 (Minn. 2009). We review de novo whether there are valid grounds for the

district court to order an upward departure. Dillon v. State, 781 N.W.2d 588, 595 (Minn.

App. 2010), review denied (Minn. July 20, 2010).

       The dangerous-offender statute permits the district court to impose a durational

departure not otherwise authorized by the sentencing guidelines. Neal v. State, 658

N.W.2d 536, 545 (Minn. 2003); Minn. Stat. § 609.1095, subd. 2. The statute authorizes

the district court to impose an upward durational departure up to the statutory maximum

sentence if the offender is convicted of a violent crime that is a felony and the statutory

requirements are satisfied. Neal, 658 N.W.2d at 545. The three statutory requirements

are: (1) the offender was at least 18 years old when the felony was committed; (2) the

offender had two or more prior convictions for violent crimes; and (3) the fact-finder

determines that the offender is a danger to public safety. Minn. Stat. § 609.1095, subd. 2.

At issue here is the second requirement, whether appellant has two or more prior

convictions for violent crimes.




                                            4
       The term “prior conviction” is defined as “a conviction that occurred before the

offender committed the next felony resulting in a conviction and before the offense for

which the offender is being sentenced under this section.” Id., subd. 1(c). A conviction

is defined as “any of the following accepted and recorded by the court: a plea of guilty, a

verdict of guilty by a jury, or a finding of guilty by the court.” Id., subd. 1(b). We have

previously concluded that, to constitute a prior conviction as defined by Minn. Stat.

§ 609.1095, the first offense and conviction for that offense must both occur before the

second offense. See State v. Huston, 616 N.W.2d 282, 283 (Minn. App. 2000) (stating

that the statute requires “offense/conviction, offense/conviction, offense/conviction”).

We explained that this sequencing requirement was meant to exclude “prejudicial use of

multiple convictions resulting from a short crime spree” and to provide the offender a

postconviction opportunity for reform before the next offense. Id. at 284.

       Here, the acts underlying appellant’s previous offenses occurred on three different

dates, but his convictions for those offenses occurred on the same date: January 23, 2012,

when he pleaded guilty to each offense. Thus, those offenses can constitute only one

prior conviction for purposes of the dangerous-offender statute.1 See id. at 283. Because

the record does not establish that appellant possesses any other convictions for violent

1
  The Minnesota Supreme Court recently concluded, for purposes of determining whether
a defendant is subject to a lifetime conditional release term, that a defendant has a “prior
sex offense conviction” if the defendant’s first conviction occurred before the second
conviction, even if the defendant committed the second offense before he was convicted
of the first offense. State v. Nodes, ___ N.W.2d ___, ___, 2015 WL 2088872, at *5
(Minn. May 6, 2015). But Nodes is distinguishable because, unlike the conditional
release statute, the dangerous offender statute expressly limits a defendant’s prior
convictions to those that “occurred before the offender committed the next felony
resulting in a conviction.” Minn. Stat. § 609.1095, subd. 1(c) (emphasis added).

                                             5
crimes, we conclude that the district court erred by imposing an upward departure based

on the dangerous-offender sentencing enhancement. We therefore reverse the sentence

imposed for second-degree aggravated robbery and remand for the district court to

impose the presumptive sentence.

                                            II

       Appellant also challenges the district court’s imposition of a 36-month-and-one-

day consecutive sentence for fleeing a police officer in a motor vehicle. The state

concedes that the district court erroneously imposed an upward departure for that offense

and argues that the matter should be remanded for the district court to impose the

presumptive sentence. We agree.

       The district court imposed an upward departure on the fleeing offense based on the

jury’s finding that appellant represented a danger to public safety and “the exceptionally

egregious nature of the crime.” But the dangerous-offender statute does not apply here

because the offense for which appellant was convicted, fleeing a police officer in a motor

vehicle, is not considered a violent crime for purposes of that sentencing enhancement.

See Minn. Stat. § 609.1095, subd. 1(d) (listing offenses that constitute violent crimes for

purposes of dangerous-offender sentencing enhancement). Moreover, the state concedes

that it did not seek an upward departure on the fleeing offense and that it presented no

evidence to the jury in support of aggravating factors that would support a motion for an

upward departure. An upward departure may be based only on those factors that the

sentencing jury found to be proven beyond a reasonable doubt. Minn. Stat. § 244.10,

subd. 5 (2012). Because there are no factors that support the upward departure imposed


                                            6
by the district court for fleeing a police officer in a motor vehicle, we reverse the

sentence imposed for that offense and remand for the district court to impose the

presumptive sentence.2

      Reversed and remanded.




2
  On remand, the district court may consider whether it is appropriate to impose a
permissive consecutive sentence of one year and one day for the fleeing offense. See
Minn. Sent. Guidelines 2.F.2.a(2)(iii), 4.A, 5.A (2014) (permitting consecutive executed
sentencing for person convicted of that offense without providing reasons for departure
and providing presumptive duration of that sentence to be one year and one day).

                                           7
