2012-M-201       State of Minnesota, Appellant/Cross-Respondent, vs. Tito Fonzio Campbell, Respondent/Cross-Appellant.

The Court reversed the Court of Appeals and restored the sentencing of a drunk driver who killed the other driver’s wife and maimed the other driver while fleeing police.

MAJORITY:  On April 18, 2009, Campbell drove after drinking alcohol and despite his cancelled driver’s license.  Campbell saw police and fled with his 10-year-old son in the car.  After driving at a high rate of speed, Campbell ran a red light and crashed into another car, injuring the driver, and killing the driver’s wife.  Within two hours of the accident, a test of Campbell’s blood revealed a blood alcohol level of 0.15. 

After a jury trial, Campbell was found guilty of gross misdemeanor driving after cancellation, Minn. Stat. § 171.24, subd. 5 (2010); felony first-degree driving while impaired, Minn. Stat. §§ 169A.20, subd. 1(1), 169A.24, subd. 1(1) (2010); gross misdemeanor endangerment of a child, Minn. Stat. § 609.378, subd. 1(b)(1) (2010); gross misdemeanor criminal vehicular operation resulting in bodily harm, Minn. Stat. § 609.21, subds. 1(4), 1a(d) (2010); and felony fleeing a police officer in a motor vehicle resulting in death, Minn. Stat. § 609.487, subd. 4(a) (2010).

On January 12, 2010, the district court imposed five sentences in the order in which the offenses occurred.  The court imposed a 12-month sentence on the gross misdemeanor criminal vehicular operation conviction.  Based on a criminal history score of three and a severity level of ten, the court imposed a permissive consecutive sentence of 234 months on the felony fleeing conviction, to be served consecutive to the 12-month gross misdemeanor sentence.  The court justified the consecutive sentence based on the multiple victim exception,

Campbell appealed to the court of appeals on multiple issues and asserted that the district court erred by failing to use a criminal history score of zero to calculate the duration of the permissive consecutive felony fleeing sentence.  The court of appeals determined that the duration of Campbell’s permissive consecutive felony fleeing sentence must be calculated using a criminal history score of zero, and reversed and remanded for resentencing.  We reverse.

HELD:  First, the phrase “another offense” as used in Minn. Sent. Guidelines 2.F.2.

means felony offense.

Second, the purpose of Minn. Sent. Guidelines 2.F.2. is to count an offender’s criminal history score once and only once.

Third, when sentencing a felony offense permissively consecutive to a gross misdemeanor offense, a district court should not reduce the offender’s criminal history score to zero before calculating the presumptive sentence for the felony offense.

DISSENT:  Justices Stras, Page, and Paul Anderson opined: “I respectfully dissent.  The court unnaturally reads the phrase “another offense” in Minn. Sent. Guidelines 2.F.2. to refer only to felony offenses.  In doing so, the court relies on the underlying policies and objectives of the Minnesota Sentencing Guidelines.  In my view, resort to such evidence is neither necessary nor appropriate because the plain and ordinary meaning of the phrase “another offense” broadly encompasses any other crime committed by a defendant, whether a felony, gross misdemeanor, or misdemeanor. 

Because the language of the provision at issue in this case is clear and unambiguous, I would reverse Campbell’s sentence and remand to the district court for resentencing.

Meyer (Gildea, Barry Anderson, and Dietzen)

Dissent:  Stras, Page, and Paul Anderson

[MURDER] [DWI]]