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State v. Wasson12/4/2001
nd the transfer to probation. In Minnesota, an executed sentence of ten years means, without qualification, six and two-thirds years behind bars and then three and one-third years on probation. A 15-year executed sentence means 10 years behind bars, 5 years on probation, and so on and so forth. If district courts, determined to depart upwardly, could condition themselves to think of a 25% upward departure to a 50% upward departure, they would still be adding real years behind bars to the already real years behind bars called for by the presumptive sentence. Instead, unlike the 40% upward departure in Luna, it seems that on appellate review, arguments for a double upward departure are the norm and merely the starting step for even greater departures!
The judiciary often blithely adds more years behind bars for non-crime aggravating factors than the defendant gets behind bars for actually committing the crime. This happened here. Upon reflection, such a sentence is disproportionate, untenable, and not in keeping with the baseline of fairness and due process, the sine qua non of a constitution and justice.
Taking into account the record and caselaw discussing sentencing appeals, we affirm the sentencing court's decision to depart upwardly, but modify the sentence to 172 months, a double upward departure from the presumptive sentence. Appellant essentially imprisoned his stepdaughter when he forced her to accompany him on over-the-road semi-trailer trips where she had no way to flee or get help, and when he handcuffed her. These circumstances, when combined with other facts of this case, justify a double departure. See State v. Evans, 311 N.W.2d at 483 (stating where durational departure is justified, generally, upper limit is double presumptive sentence).
Affirmed as modified.
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