How Bad Can My Criminal Sentence Be in Minnesota? Think Upward Departures

The vast majority of criminal cases in Minnesota resolve in negotiated pleas. This means that an experienced criminal defense attorney negotiates with the prosecutor to come up with a plea agreement. This is a complicated process that can include a specific charge or amount of time. It may include what’s called a floor, a cap or more. These may leave discretion to the Court as well. As you can see, this is not simple and just winging it if you are charged with a crime is never a good idea. Regardless, plea negotiations happen for a whole series of reasons including: 

  • Certainty;

  • The evidence is too strong;

  • The evidence might be weak but there is still exposure;

  • There was an offer you couldn’t refuse;

  • You don’t want to go through the trial;

  • You don’t want others to go through the trial;

  • You just want it done.

All of these and many more reasons may be driving factors behind plea negotiations and agreements here in Minnesota courtrooms.  Generally, these negotiations may involve downward durational or downward dispositional departures. While, there are still other things to worry about including consecutive sentencing, Hernandizing, etc. in Minnesota, there is one area that many people forget to think about:  Upward departures.  

What is an Upward Departure?

Many serious criminal offenses, I.e. murder, rape, serious assaults, criminal vehicular homicide, serious domestic assaults, drugs, have presumptive prison commits in Minnesota.  These are based upon the seriousness of the charges as well and prior criminal record.  Typically, these charges fall within a range or box that provide presumptive amounts of time in prison.  This generally gives you a notion of just how ugly things might get.  That being said, there a very particular circumstances when Minnesota prosecutors will seek a so-called upward departure.  An upward departure is when the Judge could sentence you above the presumptive sentencing guidelines.  

Are There Circumstances When Prosecutors Would Seek Upward Departures in Minnesota?

In order to face an upward departure in Minnesota, the prosecutor must convince the Judge that the conduct in the particular case was significantly more serious than the average case. In other words, the facts of your case must be worse than usual.  The problem with this analysis in that some charges are always emotional, brutal and difficult. As a result, some prosecutors will almost knee-jerk seek upward departures on certain charges every single time and Judges may look at it the same way. Of course, this cuts goes against the concept of, “a particular case must be significantly more serious” analysis.  That is the concern with upward departures.

What Factors May Justify an Upward Departure?

While the list can be unlimited, there are frequently trigger points for prosecutors and judges when they decide whether to seek or grant an upward departure.  Frequently, they will look at multiple areas including:

  • Multiple victims;

  • Multiple penetrations in criminal sexual conduct cases;

  • Serious physical injury to a victim, both short and long term;

  • Serious mental injury to a victim, both short and long term;

  • Presence of children;

  • Particular cruelty;

  • Lack of remorse;

  • Targeting based upon a protected class, i.e. race, gender, orientation;

  • Similar priors convictions or acts;

  • Extensive planning and premeditation.

Just How Bad Can Upward Departures Get?

Generally, the upper limit of a departure is double the presumptive term in the sentencing guidelines.  Hence, in a 1st degree rape charge in Minnesota, the presumptive prison commit is 144 months or 12 years.  If the prosecutor successfully gets a double upward departure, that person could receive 288 months or 24 years.  That being said, in order to get even more than double, and it can happen, even more severe aggravating facts must be at play.  However, remember how much emotion plays into these.  That is always one of the concerns.

What Kinds of Charges Risk the Potential for Upward Departures

While any criminal charges risk the possibility for volatile sentencing, there a certain charges in Minnesota that more frequently face the potential for upward departures. These may include:

If you are facing any charges here in Minnesota similar to those listed above, it is important to understand what you may face. Knowing how bad things could get is a small piece of the larger puzzle. An experienced criminal defense attorney can show you where the pitfalls are as well as the opportunities.

You Need to Have a Conversation With the Best Criminal Defense Attorney

If you are facing serious criminal charges in Minnesota and there is the potential for an upward departure, you desperately need to have an experienced criminal defense attorney by your side who understands what you might face. Jack Rice is a former prosecutor, a Board Certified Criminal Law Specialist and the Founder of Jack Rice Defense

Sit down with Jack for a free confidential consultation.  Jack can listen to your circumstances and start to determine exposure and establish a game plan.  Only then can you start making decisions on the best way to move forward with any case. Contact us directly or call 651-447-7650 or 612-227-1339.

Previous
Previous

So What Can a Good Minnesota Criminal Lawyer Do in Trial? - Video

Next
Next

Can I Use the Insanity Defense in Minnesota?