State of Minnesota v. Johnathan Richard Beying

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1708

State of Minnesota,
Respondent,

vs.

Johnathan Richard Beying,
Appellant

Filed September 2, 2014
Affirmed in part and reversed in part
Peterson, Judge

Washington County District Court
File No. 82-CR-12-865

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

Peter James Orput, Washington County Attorney, Robin Michelle Wolpert, Assistant
County Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and

Schellhas, Judge.
 UNPUBLISHED OPINION

PETERSON, Judge

In this sentencing appeal, appellant argues that (1) the district court had no

authority to impose a no-contact order as part of his sentence and (2) his top-of-the-box

sentence is excessive. We affirm in part and reverse in part.

FACTS

Appellant Johnathan Beying pleaded guilty to one count of first-degree criminal

sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (2010). Under the

sentencing guidelines, the presumptive sentence range for this offense is 144 months to

187 months. At the sentencing hearing, appellant asked the district court to impose the

bottom-of-the-box sentence, and respondent State of Minnesota asked the court to impose

a sentence of 156 to 187 months. The district court sentenced appellant to 187 months

and ordered him to have no contact with the victim. Appellant argues that the district

court erred by imposing the no-contact order as part of his sentence and by imposing the

top-of-the-box sentence without stating its reasons for doing so.

DECISION

I.

This court reviews a sentence imposed by the district court “to determine whether

the sentence is inconsistent with statutory requirements, unreasonable, inappropriate,

excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the

district court.” Minn. Stat. § 244.11, subd. 2(b) (2010). This court has explained that

because Minnesota courts

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 do not have inherent authority to impose terms or conditions
of sentences for criminal acts and must act within the limits of
their statutory authority when imposing sentences[,] . . . a
district court may not impose a no-contact order as part of an
executed sentence unless the order is expressly authorized by
statute.

State v. Pugh, 753 N.W.2d 308, 311 (Minn. App. 2008), review denied (Minn. Sept. 23,

2008).

Appellant pleaded guilty to first-degree criminal sexual conduct in violation of

Minn. Stat. § 609.342, subd. 1(a), which is a felony offense, see Minn. Stat. § 609.02,

subd. 2 (2010) (defining felony). The sentence expressly authorized by statute for a

person convicted of violating Minn. Stat. § 609.342, subd. 1(a), is imprisonment for not

more than 30 years or payment of a fine of not more than $40,000, or both. Minn. Stat.

§ 609.342, subd. 2(a) (2010). In addition to imprisonment and a fine, a person convicted

of violating Minn. Stat. § 609.342, subd. 1(a), may be sentenced to pay court-ordered

restitution and a local correctional fee. Minn. Stat. § 609.10, subd. 1(a) (2010). We have

not found any statute that expressly authorizes a district court to impose a no-contact

order as part of a sentence for violating Minn. Stat. § 609.342, subd. 1(a).

Respondent acknowledges that, under Pugh, a district court may not impose a no-

contact order unless it is expressly authorized by statute. But respondent argues that this

case “is distinguishable from Pugh because the purpose of the [no-contact order] here is

not to punish Appellant by adding a term or condition of confinement—it is to protect

[the victim] and the administration of justice.”

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 Regardless of the purpose of the no-contact order, it was imposed as part of

appellant’s sentence; the only basis for imposing the order was that appellant was found

guilty of violating Minn. Stat. § 609.342, subd. 1(a). Therefore, because no statute

expressly authorizes a district court to impose a no-contact order as part of a sentence for

first-degree criminal sexual conduct and district courts do not have inherent authority to

impose sentences for criminal acts, the district court did not have authority to impose a

no-contact order as part of appellant’s sentence, and we reverse the no-contact order

imposed by the district court.

II.

Appellant argues that the district court imposed an excessive sentence when it

sentenced him to the maximum presumptive term of imprisonment allowed under the

sentencing guidelines without addressing any of the factors discussed in State v. Trog,

323 N.W.2d 28, 31 (Minn. 1982) (discussing mitigating sentencing factors).

This court reviews sentences imposed by the district court for an abuse of

discretion. State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn.

July 20, 2010). Sentence ranges in the sentencing guidelines are presumed appropriate

for the crimes to which they apply. Minn. Sent. Guidelines 2.D (Supp. 2011). “All three

numbers in any given cell [on the sentencing guidelines grid] constitute an acceptable

sentence . . . .” State v. Jackson, 749 N.W.2d 353, 359 n.2 (Minn. 2008). “[A]ny

sentence within the presumptive range for the convicted offense constitutes a

presumptive sentence.” Delk, 781 N.W.2d at 428.

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 Absent “identifiable, substantial, and compelling circumstances to support a

sentence outside the range on the grids,” the district court must impose the presumptive

guidelines sentence. Minn. Sent. Guidelines 2.D. A district court is not required to

explain its reasons for imposing a presumptive sentence, and we may not interfere with

the district court’s exercise of discretion so long as “the record shows the sentencing

court carefully evaluated all the testimony and information presented before making a

determination.” State v. Van Ruler, 378 N.W.2d 77, 80-81 (Minn. 1985). “[I]t would be

a rare case which would warrant reversal of the refusal to depart.” State v. Kindem, 313

N.W.2d 6, 7 (Minn. 1981).

This case is not the rare case that warrants reversal of the district court’s refusal to

depart. The record demonstrates that the district court carefully reviewed the information

presented before imposing a sentence within the guidelines range. The district court was

not required to explain its reasons for imposing a guidelines sentence. Therefore, we

affirm the 187-month sentence.

Affirmed in part and reversed in part.

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