                         This opinion will be unpublished and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
                                     A15-1418

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                  Glenn Kevin Hazley,
                                      Appellant.

                                 Filed March 14, 2016
                                Reversed and remanded
                                  Rodenberg, Judge

                             Hennepin County District Court
                               File No. 27-CR-14-25709

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and

Hooten, Judge.

                        UNPUBLISHED OPINION

RODENBERG, Judge

       On appeal from his probation revocation, appellant Glenn Kevin Hazley

challenges his underlying sentence, arguing that the district court erred by sentencing him
to a 24-month upward durational departure under Minn. Stat. § 609.1095, subd. 4 (2014),

while at the same time staying execution of appellant’s sentence consistent with a plea

agreement. We reverse and remand.

                                         FACTS

       Appellant was charged with third-degree burglary in violation of Minn. Stat.

§ 609.582, subd. 3 (2014), for an August 31, 2014 incident. The state gave notice that it

intended to seek an aggravated sentence under the repeat-offender statute, Minn. Stat.

§ 609.1095, subd. 4. In a negotiated plea agreement, appellant pleaded guilty and agreed

to be sentenced under the repeat-offender statute, with the understanding that his

sentence, an imposed but stayed 60-month term of imprisonment, would be both an

upward durational departure and a downward dispositional departure. As part of the

agreement, appellant agreed that the district court could impose the statutory-maximum

term of imprisonment under Minn. Stat. § 609.1095, subd. 4.

       In a presentence-investigation report, the reporting probation officer expressed

doubt concerning the district court’s authority “to sentence beyond the presumptive

sentence when the court is not imposing an executed sentence,” citing the language of

Minn. Stat. § 609.1095, subd. 4. The district court, recognizing that the sentence was a

downward-dispositional and upward-durational departure, sentenced appellant to 60

months in prison, stayed execution of the sentence for five years, and ordered appellant to

serve 365 days in jail. The district court based the upward departure on the repeat-

offender statute, Minn. Stat. § 609.1095, subd. 4.




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       On June 4, 2015, the district court revoked appellant’s probation and executed

appellant’s 60-month prison sentence. This appeal followed.

                                      DECISION

       Appellant appeals from the revocation of his probation. He does not dispute the

district court’s decision to revoke his probation. Instead, for the first time on appeal,

appellant challenges his underlying sentence. The Minnesota Supreme Court has held

that a defendant may challenge the underlying sentence on appeal from an order revoking

probation. State v. Hockensmith, 417 N.W.2d 630, 632 (Minn. 1988); State v. Fields, 416

N.W.2d 734, 736 (Minn. 1987).

       A. Appellant’s sentence was unauthorized.

       We review a district court’s departure from the sentencing guidelines for an abuse

of discretion. State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003). Whether the district

court’s departure violated Minn. Stat. § 609.1095, subd. 4, is a legal question that we

review de novo. Vickla v. State, 793 N.W.2d 265, 269 (Minn. 2011). “If reasons

supporting the departure are stated, this court will examine the record to determine if the

reasons given justify the departure.” Williams v. State, 361 N.W.2d 840, 844 (Minn.

1985). “If the reasons given are improper or inadequate and there is insufficient evidence

of record to justify the departure, the departure will be reversed.” Id.

       The parties agree that the district court’s sentence was not authorized by Minn.

Stat. § 609.1095, subd. 4. The statute provides:

              Whenever a person is convicted of a felony, and the judge is
              imposing an executed sentence based on a Sentencing
              Guidelines presumptive imprisonment sentence, the judge


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              may impose an aggravated durational departure from the
              presumptive sentence up to the statutory maximum sentence
              if the factfinder determines that the offender has five or more
              prior felony convictions and that the present offense is a
              felony that was committed as part of a pattern of criminal
              conduct.

Minn. Stat. § 609.1095, subd. 4 (emphasis added). Here, the district court imposed the

statutory-maximum sentence, but stayed execution of the sentence.

       At sentencing, the district court’s sole reason for the upward durational departure

was appellant’s status as a repeat offender under Minn. Stat. § 609.1095, subd. 4. The

district court did not “impose an executed sentence.” Id. Instead, it granted a downward

dispositional departure, staying execution of the sentence. Under its plain language, the

repeat-offender statute does not apply to appellant’s sentence.          The sentence was

therefore unauthorized.

       B. The invited-error doctrine does not apply.

       Although the state agrees that the district court erred in applying the

repeat-offender statute, it asks us to affirm by applying the invited-error doctrine. Under

the invited-error doctrine, “a party cannot assert on appeal an error that he invited or that

could have been prevented at the district court.” State v. Carridine, 812 N.W.2d 130, 142

(Minn. 2012). No Minnesota case applies the invited-error doctrine to an unauthorized

sentence.

       The Minnesota Supreme Court has held “that plea agreements cannot form the

sole basis of a sentencing departure.” State v. Misquadace, 644 N.W.2d 65, 71 (Minn.

2002). Misquadace implicitly rejects that a plea agreement permits application of the



                                             4
invited-error doctrine to sentence departures. Id. Here, the district court sentenced

appellant according to the plea agreement, and the only reason it gave for the upward

departure was the repeat-offender statute.       Because the repeat-offender statute is

inapplicable, only the plea agreement remains to support the departure.              Under

Misquadace, that is insufficient. Id.

       C. Remand.

       Appellant asks us to direct the district court to impose a sentence within the

presumptive guidelines range. Generally, we must “remand to the district court for

imposition of the presumptive guidelines sentence” when the district court fails to state a

reason for supporting a departure. State v. Rannow, 703 N.W.2d 575, 580 (Minn. App.

2005) (citing Geller, 665 N.W.2d at 517). But when, as here, the error results from a plea

agreement, the district court on remand is “‘free to consider the effect that changes in the

sentence have on the entire plea agreement’ and could entertain motions to vacate the

conviction and the plea agreement.” State v. Montermini, 819 N.W.2d 447, 455 (Minn.

App. 2012) (quoting State v. Lewis, 656 N.W.2d 535, 539 (Minn. 2003)). We decline to

direct the district court concerning appellant’s sentence on remand, as doing so would be

beyond our proper role as an error-correcting court. Sefkow v. Sefkow, 427 N.W.2d 203,

210 (Minn. 1988).      On remand, the district court has discretion to determine the

appropriate lawful sentence.

       Reversed and remanded.




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