2011-M-176             Clemmie Howard Tucker, Jr., Appellant, vs. State of Minnesota, Respondent.

MAJORITY:  Appellant Clemmie Howard Tucker pleaded guilty to second-degree unintentional felony murder.  Under the terms of the plea agreement, the district court sentenced Tucker to 225 months in prison.  The sentence represented an upward durational departure from the presumptive sentencing range of 128 to 180 months for a defendant convicted of second-degree unintentional murder with Tucker ‘s criminal history score.  Tucker filed a petition for post-conviction relief in which he claimed the sentencing court abused its discretion when it imposed an upward departure based on particular cruelty to his victim. 

The court of appeals affirmed the denial of post-conviction relief on the ground that Tucker ‘s failure to render aid to his victim constituted particular cruelty.   We granted Tucker ‘s petition for review, and now reverse and remand for further proceedings.

We conclude that Tucker ‘s petition for post-conviction relief and the files and records of the proceedings conclusively show that Tucker is entitled to post-conviction relief because the sentencing court ‘s reason for departure was improper.  Accordingly, we reverse the post-conviction court ‘s denial of relief and remand for further proceedings consistent with the opinion.  

CONCUR:  Justice Page opined: “Although I join in the reasoning and analysis of the court ‘s opinion authored by Justice Stras as it relates to the inapplicability of the aggravating factor of particular cruelty to this case, I write separately because I believe Tucker ‘s upward departure fails for a more fundamental reason:  Tucker ‘s failure to aid Garley constituted an uncharged offense and thus is an invalid ground for any upward departure.

CONCUR:  Justices Barry Anderson, Gildea and Dietzen opined: “I concur in the result.  I write separately because the court of appeals invented and applied an objective “reasonable person” rule that has no support in the Minnesota Sentencing Guidelines or in our jurisprudence.  In my view, the approach taken by the court of appeals in this case is an error of law that must be corrected, and the majority opinion glosses over the error and opens the door to similar errors in other sentencing cases.

Stras (Paul Anderson and Meyer)

               Concur:  Page

               Concur:  Barry Anderson, Gildea and Dietzen

[MURDER]