                           This opinion will be unpublished and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
                                       A15-1235

                                     State of Minnesota,
                                        Respondent,

                                              vs.

                                       Darren Clinton,
                                         Appellant.

                                 Filed March 28, 2016
                         Reversed and remanded; motion denied
                                      Ross, Judge

                               Hennepin County District Court
                                 File No. 27-CR-14-26898

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

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

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


         Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith, Tracy,

Judge.

                          UNPUBLISHED OPINION

ROSS, Judge

         Darren Clinton pleaded guilty to selling fake drugs to an undercover officer and was

conditionally released before sentencing. According to his plea agreement, if he returned
for the sentencing hearing, the district court would sentence him to a year and a day in

prison (a term that departs downward from the guidelines’ presumptive sentence), but if he

failed to appear, the district court would sentence him to 24 months in prison (a term that

departs upward from the presumptive sentence). When Clinton failed to appear, the district

court sentenced him to 24 months in prison. Clinton appeals his sentence, arguing there is

no basis for the upward departure. The state agrees, and so do we, so we reverse and remand

for resentencing.

                                          FACTS

       In September 2014, Clinton sold a substance resembling crack cocaine to an

undercover police officer. Police arrested him and he pleaded guilty to violating Minnesota

Statutes section 152.097, subdivision 1(3) (2014). Under his plea agreement with the state,

Clinton would be sentenced either to 366 days in prison or 24 months in prison, depending

on whether he appeared for his scheduled sentencing hearing. The problem is, neither the

carrot-sentence nor the stick-sentence fell within the guidelines’ presumptive sentence of

17 to 22 months.

       Clinton failed to appear. Police eventually arrested him and he appeared for

sentencing. His attorney argued that the district court could not impose a 24-month

sentence despite the plea agreement. The district court stated that Clinton had agreed to the

sentence by entering the plea agreement and by failing to appear for sentencing. Clinton’s

attorney explained that a 24-month sentence constitutes an upward durational departure

unsupported by any aggravating factors. The district court replied that its reason for




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departing was that Clinton absconded. The district court imposed the 24-month sentence.

Clinton appeals.

                                     DECISION

       We first address a motion that Clinton filed, seeking our expedited review. The

special rules of practice contemplate motions to expedite the scheduling of cases based on

a good-cause showing. Minn. App. Spec. R. Pract. 1. But Clinton does not rely on that rule,

and, in any event, he could not rely on it because he did not file his motion until only five

days before our scheduled conference—too late for him to benefit from rescheduling. His

motion seeks expedited review because he is scheduled to be released from prison before

the end of our 90-day statutory deadline for releasing decisions. His motion relies on

Minnesota Rules of Civil Appellate Procedure 102, 126.02, and 127, but none of these

rules contemplates a motion to expedite our consideration of a case that has already been

heard. Although we do not grant the motion for these reasons, we observe that the state has

responded in support of it, and we accommodate it as a reasonable request under the slightly

urgent circumstances.

       Clinton argues that the district court abused its discretion by imposing an upward

departure based only on the plea agreement. The state supports Clinton’s argument and

asks that we remand for resentencing. Clinton’s argument and the state’s concession are

well supported. We review a district court’s decision to depart from the sentencing

guidelines for an abuse of discretion. State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015).

The district court must articulate substantial and compelling reasons to support a sentence

that departs from the guidelines, establishing that the defendant’s conduct was either


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significantly more or less serious than conduct typically involved in the crime of

conviction. Id. at 156–57. A plea agreement standing alone cannot constitute a substantial

and compelling circumstance to depart. State v. Misquadace, 644 N.W.2d 65, 72 (Minn.

2002). Even when a plea agreement proposes a sentencing departure, the district court must

still determine whether the offense includes any aggravating or mitigating circumstances

warranting a departure. Id. at 71. The district court did not point to any facts indicating that

Clinton’s offense was more serious than the typical crime of simulating the sale of

narcotics.

       Although the parties agree that the district court erred, they do not agree on the

precise remedy. We turn to that dispute.

       While the state agrees that we must remand for resentencing, it implies that an

upward durational departure is supported by the record because Clinton’s absconding

before sentencing shows lack of remorse. The argument is not compelling. To impose a

durational departure, the district court may consider only offense-related factors, not

offender-related characteristics. State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995).

Remorse is generally an offender-related characteristic, though it may be a durational

consideration in situations that do not resemble the present facts. See State v. Solberg, 869

N.W.2d 66, 70 (Minn. App. 2015) (observing that remorse may be a consideration for

durational departures if it bears on the seriousness of the offense), review denied (Minn.

Nov. 17, 2015). Nothing identified by the state or apparent in the record supports a

departure from a presumptive sentence.




                                               4
       The state also suggests that we instruct the district court on remand to allow Clinton

to withdraw his guilty plea. But this is not the remedy Clinton seeks. Clinton urges that we

direct the district court to impose a 19-month prison sentence, which he maintains is the

presumptive sentence. The guidelines provide a presumptive range for Clinton’s prison

term, not a specific presumptive term. State v. Delk, 781 N.W.2d 426, 428 (Minn. App.

2010), review denied (Minn. July 20, 2010). It is true that 19 months is the center of that

range, but the district court has discretion to impose a sentence as it sees fit anywhere

within the range. State v. Starnes, 396 N.W.2d 676, 681 (Minn. App. 1986). We therefore

reverse Clinton’s sentence as constituting an unsupported upward departure, and we

remand for the district court to resentence Clinton within the presumptive range at its

discretion.

       Reversed and remanded; motion denied.




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