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This opinion will be unpublished and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
A18-1338

State of Minnesota,
Respondent,

vs.

Rashad Ramon Ivy,
Appellant.

Filed May 20, 2019
Reversed and remanded
Slieter, Judge

Ramsey County District Court
File No. 62-CR-15-4420

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

John Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke , Presiding Judge; Slieter, Judge; and Klaphake,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant challenges his resentencing on remand from this court, arguing that the
district court impermissibly imposed two upward durational departures. We reverse and
remand for resentencing.
FACTS
In February 2016, a jury found appellant Rashad Ramon Ivy guilty on a total of ten
counts: three counts of aiding and abetting second -degree solicitation to practice
prostitution (counts 3, 4, and 5), four counts of aiding and abetting second-degree engaging
in sex trafficking (counts 1, 8, 9, and 10), one count of third-degree criminal sexual conduct
(count 6), one count of conspiracy to engage in second -degree sex trafficking (count 7),
and one count of domestic assault by strangulation (count 2). In a separate Blakely phase
of the trial, the jury found 15 aggravating factors. See State v. Shattuck, 704 N.W.2d 131,
141 (Minn. 2005) (holding imposition of presumptive sentence mandato ry absent
additional findings).
On March 20, 2016, the district court sentenced appellant to 700 months. In
determining appellant’s sentence, the district court applied a statutory aggravating factor
that resulted in 48 additional months being added to each of appellant’s prostitut ion and
sex-trafficking counts.1

1 See Minn. Stat. § 609.322, subd. 1(b) (2014); see also Minn. Sent. Guidelines 2.G.9
(2014) (stating that the “presumptive sentence is determined by locating the duration in the
appropriate cell on the applicable Grid” and adding “48 months, if the u nderlying crime
was completed”).

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In the direct appeal, this court held that , because the state charged appellant with
multiple counts—each with a single victim—for soliciting prostitution and sex trafficking,
“appellant’s sentence is inconsistent with Minn. Stat. § 609.322 and the sentencing
guidelines because the multiple -victims aggravating factor set forth in section 609.322,
subdivision 1(b)(4), was not applicable to any of appellant’s convictions.” State v. Ivy, 902
N.W.2d 652, 666 (Minn. App. 2017). This court also determined that the sentence imposed
by the district court was not a departure. Id. at 665. Ultimately, this court concluded that
“because the district court declined to depart from the sentencing guidelines, and the
sentence imposed is inconsistent with section 609.322, we reverse appellant’s sentence and
remand for resentencing.” Id. at 667.
On remand , the district court sentenced appellant to a total of 581 months , as
follows, in the following order:
Count 8 (sex trafficking): 182 months, representing a doub le-
upward durational departure. The district court based this
departure on the aggravating factors found by the jury.

Count 9 (sex trafficking): 57 months, representing a top-of-the-
box term to run consecutively to Count 8.

Count 10 (sex trafficking): 57 months, representing a top -of-
the-box term to run consecutively to Counts 8 and 9.

Count 5 (solicitation of prostitution): 57 months, representing
a top-of-the-box term to run consecutively to Counts 8, 9, and
10.

Count 3 (solicitation of prostitution): 57 months, representing
a top-of-the-box term to run co nsecutively to Counts 8, 9, 10,
and 5.

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Count 6 (criminal sexual conduct): 57 months, representing a
top-of-the-box term to run consecutively to Counts 8, 9, 10, 5,
and 3.

Count 1 (sex trafficking): 114 months, representing a double
upward durational departure from the top -of-the-box
presumptive term of 57 months to run consecutively to Counts
8, 9, 10, 3, 5, and 6. The district court based this departure on
the “incredibly egregious conduct” that appellant eng aged in
with one of the victims.

The district court did not impose sentences on counts 2, 4, and 7 because they were
based upon the same behavioral incidents as other counts.
This appeal follows.
D E C I S I O N
Appellant contends that Williams v. State and its progeny preclude imposition of an
upward departure on resentencing. 361 N.W.2d 840 (Minn. 1985). We agree.
District courts have broad discretion in imposing sentences. State v. Soto , 855
N.W.2d 303, 307-08 (Minn. 2014). We review a district court’s decision to depart for an
abuse of discretion. Dillon v. State, 781 N.W.2d 588, 595 (Minn. App. 2010).
In Williams, the supreme court stated:
In order to ensure future compliance . . . with the sentencing
guidelines requirements, we prospectively adopt, effective the
date this opinion is filed, the following general rules:

1. If no reasons for departure are stated on the record at
the time of sentencing, no departure will be allowed.

2. If reasons supporting the departure are stated, this
court will examine the record to determine if the reasons
given justify the departure.

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3. If the reasons given justify the departure, the
departure will be allowed.

4. If the reasons given are improper or inadequate, but
there is suffic ient evidence in the record to justify
departure, the departure will be affirmed.

5. If the reasons given are improper or inadequate and
there is insufficient evidence of record to justify the
departure, the departure will be reversed.

361 N.W.2d at 844.

In State v. Thieman, the supreme court determined the appropriate remedy when a
district court imposes what it mistakenly believes is a guidelines sentence, but which is in
fact a sentencing guidelines departure. 439 N.W.2d 1, 7 (Minn. 1989) ; see also State v.
Foreman, 680 N.W.2d 536, 540 -41 (Minn. 2004). It is Thieman which best informs our
decision.
Thieman involved an erroneous application of the sentencing guidelines that
resulted in a 108-month executed prison sentence when the actual presumptive executed
prison sentence was 60 months. Thieman, 439 N.W.2d at 6. The defendant discovered the
sentencing error and requested resentencing. The district court, upon resentencing,
articulated departure reasons and re -imposed the 108 -month sentence as an upward
durational departure. The supreme court reduced the sentence to the correct presumptive
60-month sentence, concluding:
At the time of sentencing, both attorneys and the trial judge
assumed that t he presumptive sentence for attempted second -

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degree murder would be given. All three were under the
impression that the presumptive sentence was 108 months
when, in fact, it was 60 months. It is impossible to predict what
the court would have done had it known then that the
presumptive guideline sentence was 60 months. We do know
that the court intended to issue the presumptive sentence, and
to allow it now to amend retroactively its reasons and depart
from the guidelines is contrary to Williams.
Id. at 7 (citing Williams, 361 N.W.2d at 844).
In State v. Geller, the supreme court reaffirmed the Williams rule. 665 N.W.2d 514,
517 (Minn. 2003). There, “the state ask[ed] that [the supreme court] warn district cour ts
that failure to comply [with Williams] in the future will result in imposition of a guideline
sentence.” Id. The supreme court noted that “the first rule we set out in Williams is clear:
absent a statement of the reasons for the sentencing departure placed on the record at the
time of sentencing, no departure will be allowed.” Id. Because the district court “did not
state the reasons for departure on the record at the time of s entencing,” the supreme court
remanded for imposition of the presumptive guidelines sentence. Id.
Here, as this court noted in appellant’s first appeal, the district court did not
knowingly impose a sentencing guidelines durational departure. Ivy, 902 N.W.2d. at 667.
Instead, the district court attempted to impose a sentence pursuant to a statutory
aggravating factor which, if applicable, would have increased appellant’s presumptive
sentence. See Minn. Sent. Guidelines 2.G.9 (stating that the “ presumptive sentence is
determined by locating the duration in the appropriate cell on the applicable Grid” and
adding “48 months, if the underlying crime was completed” (emphasis added)). This court
ruled that application improper. Ivy, 902 N.W.2d. at 666-67.

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Pursuant to the sentencing guidelines, “[a] pronounced sentence for a felony
conviction that is outside the appropriate range on the applicable Grid, including a stayed
or imposed gross misdemeanor or misdemeanor sentence, is a departure from the
Guidelines.” Minn. Sent. Guidelines 2.D.1 (2014). Thus, appellant’s initial sentence
became a sentencing departure due to the incorrect application of the statutory aggravating
factor. However, because the district court did not knowingly depart, it did not articulate
reasons supporting a departure. Williams, therefore, precludes imposition of a departure
on resentencing.
We recognize that the record supports the jury’s findings regarding the 15
aggravated factors and the judge’s use of those findings to impose a n upward durational
departure on remand. Supreme court precedent, however, is clear that the remedy for an
incorrect presumptive sentence result ing in an unsupported departure is remand for
resentencing within the presumptive range. Foreman, 680 N.W.2d at 540; Thieman, 439
N.W.2d at 7. We are bound by supreme court precedent. State v. Curtis, 921 N.W.2d 342,
346 (Minn. 2018).
Because we conclude that the district court’s upward departure s must be reversed,
it is unnecessary to address appellant’s argument regarding the district court’s altering of
unchallenged sentences on remand. However, we discern no error in resentencing all
counts upon remand. Sentencing is a “package,” and when “a defendant attacks a portion
of a judgment, he is reopening the entire judgment and cannot selectively craft the manner
in which the court corrects that judgment.” State v. Hutchins, 856 N.W.2d 281, 285 (Minn.
App. 2014) (quotation omitted), review granted (Minn. Dec. 30, 2014) and order granting

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review vacated (Minn. July 20, 2015). We reverse and remand for resentencing within the
presumptive guidelines.
Reversed and remanded.