2009-M-106             State of Minnesota, Respondent, vs. Steven Douglas Stanke, Appellant.

Appellant pleaded guilty to both fleeing a peace officer resulting in death (of an officer) and fleeing a peace officer resulting in great bodily harm.  Stanke waived his right to a Blakely sentencing jury.  The Anoka County District Court found nine aggravating factors and one severe aggravating factor—that the peace officer was particularly vulnerable.  The court then sentenced Stanke to more than double the presumptive sentence.  The district court imposed the maximum sentence of 480 months (40 years). 

The Minnesota Court of Appeals held that the district court erred in finding the severe aggravating factor but upheld the sentence on other grounds. 

On appeal to our court, Stanke asserts that after Blakely v. Washington, 542 U.S. 296 (2004), the court of appeals is not permitted to uphold a greater-than-double-durational sentence on alternative grounds.  The State urges us to reject the court of appeals’ analysis and uphold the district court’s sentence on its original grounds. 

We conclude that the district court erred in using the peace officer’s particular vulnerability to be a severe aggravating factor, but we nevertheless uphold the district court’s original sentence on other grounds.  

The district court  found nine "substantial and compelling” aggravating factors which justified a double durational departure.  These factors included:  that Stanke had been using methamphetamine for two weeks before the chase and had not slept during that time;  the high speeds at which Stanke drove up to 110 miles per hour on metro streets and highways; that the chase occurred during rush hour; that Stanke injected himself with methamphetamine during the chase; that Stanke was talking on a cell phone during the chase; and that Stanke, at some point, was steering the car with his knee.  The court also found one ‘severe aggravating circumstance” that justified sentencing Stanke to the statutory maximum of 480 months⎯that Officer Silvera was particularly vulnerable.

Although Officer Silvera’s particular vulnerability as a peace officer cannot be used as an aggravating factor, the circumstances surrounding his death were properly considered by the district court.  The admitted facts are so extreme that we are convinced that they support a greater-than-double-durational departure and that the absence of the aggravating factor of Officer Silvera’s particular vulnerability would not change the district court’s sentence on remand.  Therefore, to remand this case to the district court would not be a prudent use of the time and resources of the judicial system.  Thus, given the atypical and particularly egregious facts of this case, we affirm the district court’s sentence.  

               Paul Anderson  Magnuson, Page, Meyer, Barry Anderson, Gildea, and Dietzen)

[MURDER]