State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1202

State of Minnesota,
Respondent,

vs.

Marin Parpaut,
Appellant.

Filed June 17, 2019
Reversed and remanded
Johnson, Judge

Hennepin County District Court
File No. 27-CR-17-13535

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O . Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Johnson,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Marin Parpaut rear-ended a full minivan when he drove his car at an extremely high
speed while he was extremely intoxicated. One of the minivan passengers died, and two

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were seriously injured. Parpaut pleaded guilty to multiple charges of criminal vehicular
homicide and criminal vehicular operation. The district court imposed three consecutive
sentences of 70, 28, and 17 months of imprisonment , for a total duration of 115 months .
We conclude that the district court erred by entering three convictions with respect to each
of the three victims. We also conclude that the district court erred by making multiple
departures from the presumptive sentences without making separate findings to support
each departure. Therefore, we reverse and remand for resentencing.
FACTS
On February 5, 2017, at approximately 1:45 a.m., Parpaut was driving south on
interstate highway 35W in south Minneapolis at approximately 90 miles per hour in a 55-
miles-per-hour zone. Near the 46th Street exit, he rear-ended a minivan that had seven
persons inside. The three passengers in the third row of the minivan bore the brunt of the
collision. H.B. died eight days after the collision from multiple blunt -force injuries. K.J.
suffered multiple spinal injuries, a skull fracture, and permanent hearing loss in her right
ear. N.R. suffered a moderate -to-severe traumatic brain injury and a scalp laceration. A
state trooper who gave first aid to Parpaut detected “an overwhelming odor of an alcoholic
beverage.” A blood sample was drawn from Parpaut within two hours of the collision, and
subsequent testing showed that Parpaut’s alcohol concentration was 0.239.
In June 2017, the state charged Parpaut with nine criminal offenses—three offenses
for each of the thr ee victims mentioned above. In counts 1, 2, and 3, the state charged
Parpaut with criminal vehicular homicide, in violation of Minn. Stat. § 609.2112, subds.
1(a)(4), 1(a)(2)(i), and 1(a)(1) (2016), for the death of H.B. In counts 4, 5, and 6, the state

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charged Parpaut with criminal vehicular operation causing great bodily harm, in violation
of Minn. Stat. § 609.2113, subds. 1(4), 1(2)(i), and 1(1) (2016) , for the injuries sustained
by K.J. And in counts 7, 8, and 9, the state charged Parpaut with criminal vehicular
operation causing substantial bodily harm , in violation of Minn. Stat. § 609.2113, subds.
2(4), 2(2)(i), and 2(1), for the injuries sustained by N.R.
In September 2017, the state gave notice of its intent to seek upward departures from
the presumptive sentences on the grounds that Parpaut was driving at an extremely high
rate of speed, that he was driving on a revoked driver’s license, that he had recently been
convicted of driving while impaired, and that he had an extreme ly high a lcohol
concentration.
In January 2018, on the day set for trial, Parpaut pleaded guilty to all nine charges.
He waived his right to have a jury find the aggravating factors necessary for a sentencing
departure. The district court conducted a hearing i n M arch 2018 at which the parties
stipulated to the introduction of a packet of exhibits. Neither party presented any
testimony. The district court allowed the parties to submit memoranda of law concerning
the order in which the offenses should be sentenced and whether the district court should
depart from the presumptive sentences based on the aggravating factors alleged by the
state. The district court also allowed Parpaut to file a memorandum in support of his
motion for a downward departure from the presumptive sentences.
The sentencing hearing was held i n April 2018 . At the outset of the hearing, t he
district court stated that it did not need to hear oral arguments concerning the order of
sentencing but that it wished to receive arguments concerning wh ether the district court

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should depart from the presumptive sentences and, if so, what sentences should be
imposed. The state presented five victim-impact statements from K.J ., K.J.’s father, and
members of H.B.’s family. The state argued for an upward d urational departure of 180
months of imprisonment on count 1 and presumptive stayed sentences on counts 4 and 7.
Parpaut’s counsel argued for a lengthy period of probation. Parpaut spoke briefly in
allocution, expressing remorse for his conduct.
After a recess, the district court found that the state had proven all four of the alleged
aggravating factors. The district court noted that the combination of the aggravating factors
“make this crime more onerous than usual ” and noted that there were multiple victims.
The district court also stated that, with respect to the order of sentencing, it would impose
a sentence on the criminal -vehicular-homicide offenses before the criminal -vehicular-
operation offenses. For counts 1, 2, and 3, the district court imposed an executed sentence
of 70 months of imprisonment, an upward durational departure , based on the f our
aggravating factors. For counts 4, 5, and 6, the district court imposed an executed sentence
of 28 months of imprisonment, w hich the district court described as an upward
dispositional departure, without reference to the four aggravating facto rs or any other
factors. And for counts 7, 8, and 9, the district court imposed a n executed sentence of 17
months of imprisonment, which the district court described as an upward dispositional
departure, with reference to the four aggravating factors. The district court stated that the
total duration of Parpaut’s imprisonment would be 115 months. On the following day, the
district court filed a departure report stating that it had made a durational departure on count
1 and dispositional departures on counts 4 and 7. Parpaut appeals.

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D E C I S I O N
I. Multiple Convictions and Sentences

Parpaut argues that the district court erred by entering three convictions with respect
to each victim and by imposing three sentences with respect to each victim , for a total of
nine convictions and sentences . He requests that this court reverse and remand with
instructions to vacate the convictions and sentences on counts 2, 3, 5, 6, 8, and 9.
We first consider Parpaut’s argument concerning multiple convictions. A defendant
“may be convicted of either the crime charged or an included offense, but not both.” Minn.
Stat. § 609.04, subd. 1 (2016). The supreme court has interpreted section 609.04 to “bar[]
multiple convictions under different sections of a criminal statute for acts committed during
a single behavioral incident.” State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985) (citing
cases); see also State v. Folley, 438 N.W.2d 372, 373 (Minn. 1989); State v. Grampre, 766
N.W.2d 347, 353-54 (Minn. App. 2009), review denied (Minn. Aug. 26, 2009).
Parpaut contends that the district court erred by entering three convictions on counts
1, 2, and 3, all of which concern the death of H.B., because the three convictions are based
on a single behavioral incident and three subdivisions of the same statute, specifically,
subdivision 1(a)(4), subdivision 1(a)(2)(i), and su bdivision 1(a)(1) of section 609.2112.
Parpaut makes essentially the same contentions concerning the convictions on counts 4, 5,
and 6, which concern the injuries suffered by K.J., and the convictions on counts 7, 8, and
9, which concern the injuries suffered by N.R. The state concedes that the district court
erred by entering three convictions with respect to each victim. The state ’s concession is
consistent with the applicable caselaw, which we have cited above.

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Thus, the district court erred by enter ing multiple convictions with respect to each
victim. On remand, the district court shall vacate the convictions and resulting sentences
on counts 2, 3, 5, 6, 8, and 9. The district court shall not disturb the finding s of guilt on
counts 2, 3, 5, 6, 8, and 9 but shall leave those six counts unadjudicated. See State v.
Hallmark, ____ N.W.2d ____, ____, 2019 WL 2128253 , at *11 (Minn. May 15, 2019);
State v. Walker , 913 N.W.2d 463, 467 (Minn. App. 2018). In light of our resolution of
Parpaut’s multiple-convictions argument based on section 609.04, we need not consider
his multiple-sentences argument based on section 609.035.
II. Multiple Sentencing Departures

Parpaut also argues that the district court erred by making multiple departures from
the presumptive sentences on counts 4 and 7 without stating separate reasons for each
departure.
A.
Parpaut explains the district court’s error as follows. The district court stated its
intention to impose an upward durational dep arture on count 1 by imposing a 70 -month
prison sentence instead of a presumptive sentence of between 50 and 69 months of
imprisonment and by referring to the four aggravating factors as the reasons justifying that
departure. The district court stated its intention to impose an upward dispositional
departure on count 4 by executing that sentence rather than staying it. Similarly, the district
court stated its intention to impose an upward dispositional departure on count 7 by
executing that sentence rather than staying it. The district court’s departure report confirms
its intention to impose an upward durational departure on count 1 and upward dispositional

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departures on counts 4 and 7. But, Parpaut contends, the district court also effectively
imposed (apparently without intending to do so) upward durational departures on counts
4 and 7, in two ways: first, by ordering the sentences on counts 4 and 7 to run consecutively
to (rather than concurrently with) the sentence on count 1 and, second, by not usin g a
criminal-history score of 0 when imposing consecutive sentences. Parpaut contends that
the district court erred by not stating additional reasons to justify the additional departures
on counts 4 and 7. Parpaut relies on a provision of the sentencing guidelines that provides
as follows:
Departures with respect to disposition and duration are
separate decisions. A court may depart from the presumptive
disposition without departing from the presumptive duration,
and vice versa. A court departing from t he presumptive
disposition as well as the presumptive duration has made two
separate departure decisions, each requiring written
departure reasons.

Minn. Sent. Guidelines 2.D.1.a. (2016) (emphasis added).
In response, the state argues that the district court did not err because consecutive
sentences may be combined with upward durational departure s. For this argument, the
state cites Rairdon v. State, 557 N.W.2d 318 (Minn. 1996). But Rairdon is distinguishable
because the district court in that case expressly stated reasons for both types of departures.
See id. at 326-27. The state also cites State v. Anderson, 361 N.W.2d 896 (Minn. App.
1985), a case involving convictions of criminal vehicular homicide and criminal vehicular
operation, for the proposition that a district court may depart both dispositionally and
durationally. But , again, Anderson is distinguishable because the district court stated
reasons for both types of departures. See id. at 897-99.

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We conclude that the district court erred by not stating separate reasons for each
departure, as required by section 2.D.1.a. of the sentencing guidelines.
B.
In light of the district court’s error, this court must determine the appropriate
appellate remedy. Parpaut argues that this court should leave intact the sentence imposed
on count 1 and remand with instructions to impose concurrent prison sentences of 28 and
17 months on counts 4 and 7 , thereby preserving the dispositional departures but
disallowing the durati onal departures on those counts. Parpaut contends that this court
should not give the district court a second opportunity to state reasons for the durational
departures on counts 4 and 7. In support of that contention, Parpaut cites Williams v. State,
361 N.W.2d 840 (Minn. 1985), in which the supreme court stated, “If no reasons for
departure are stated on the record at the time of sentencing, no departure will be allowed.”
Id. at 844. Parpaut also cites State v. Geller, 665 N.W.2d 514 (Minn. 2003), in which the
supreme court applied Williams and concluded that, because “the sentencing court did not
state the reasons for departure on the record at the time of sentencing, . . . it was error for
the court of appeals to remand to allow reasons for the departure to be given after the fact.”
Id. at 517; see also State v. Rannow, 703 N.W.2d 575, 580 (Minn. App. 2005).
In response, the state argues that, if the district court erred, this court should reverse
and remand with instructions to impose a sentence that is not greater than 115 months,
which is the sum of the three consecutive sentences originally imposed. The state contends
that “there was more than one sentencing opt ion available to the district court” and notes
that the district court could have imposed sentences in a different order. See S tate v.

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Hernandez, 311 N.W.2d 478, 480-81 (Minn. 1981). In support of its argument for a less-
constrained remand, the state cites State v. Coe, 411 N.W.2d 180 (Minn. 1987); State v.
Hutchins, 856 N.W.2d 281 (Minn. App. 2014), review granted (Minn. Dec. 30, 2014), and
appeal dismissed (Minn. July 20, 2015); and State v. Nunn, 411 N.W.2d 214 (Minn. App.
1987). In both Hutchins and Nunn, the district court resentenced a defendant on remand
by reconsidering one or more of the multiple sentences that previously had been lawfully
imposed, and this court affirmed in a subsequent appeal. See Hutchins, 856 N.W.2d at 283,
286; Nunn, 411 N.W.2d at 215 -17. In Coe, this court revers ed an upward durational
departure on one of two sentences imposed and reduc ed it to the statutory maximum
without giving the district court an opportunity to resentence the defendant on that
conviction or on two other convictions . 411 N.W.2d at 181. But the supreme court
reversed this court’s opinion and remanded to the district court for an opportunity to impose
an upward durational departure on another conviction for which the district court
previously had not imposed a sentence. Id. at 182.
The various opinions cited by the parties do not appear to be intertwined and are not
easily reconciled. The 1987 opinion in Coe does not cite the 1985 opinion in Williams,
and the 2003 opinion in Geller does not cite Coe. It appears that there are two separate
lines of cases, each to be applied in its own context. The defendant in Williams received
multiple sentences, but the part of the opinion on which Parpaut relies is a general statement
of law that applies to all sentencing departures, even in cases with only a single conviction.
361 N.W.2d at 844; see also State v. Williams, 337 N.W.2d 387, 388 (Minn. 1983) . In
Geller, the district cour t did not state any reasons for departing from the sentencing

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guidelines. 665 N.W.2d at 517. In Coe, the district court entered three convictions and
imposed two sentences, and the supreme court expressly stated that, on remand, the district
court could reconsider the matter by imposing sentences on all three convictions and could
impose a durational departure on the conviction for which no sentence previously had been
imposed, so long as all sentences are authorized by law and the total duration of the
sentences does not exceed the total duration of the sentences originally imposed. See Coe,
411 N.W.2d at 181-82. The supreme court cited Coe in State v. Chaklos, 528 N.W.2d 225
(Minn. 1995), in which the defendant was convicted of criminal vehicular homicide and
criminal vehicular operation after he rear-ended a vehicle while intoxicated. Id. at 226-27.
The district court imposed consecutive executed prison sentences, which this court deemed
to be an unjustified upward dispositional departure. Id. at 226. The supreme court reversed
this court’s opinion and stated in a footnote that, if no departure is warranted in the
circumstances that were present, “the correct remedy is to remand to give the trial court an
opportunity to impose a longer sentence for the first offense ,” i.e., to impose an upward
durational departure on a conviction for which no durational departure previously had been
imposed. Id. at 228-29 n.2 (citing Coe, 411 N.W.2d at 181-82).
The circumstances of this case are more similar to the circumstances of Coe and
Chaklos than the circumstances of Williams and Geller. Thus, we agree with the state that,
at resentencing, the district court is not constrained by the sentence previously imposed on
count 1 or by the order in which it originally imposed sentences.

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In sum, we reverse and remand to the district court with instructions to vacate
Parpaut’s convictions on counts 2, 3, 5, 6, 8, and 9 and to resentence Parpaut on counts 1,
4, and 7.
Reversed and remanded.