A Crow Wing County District Court judge will have to resentence a 27-year-old Brainerd man following a ruling made Monday, June 22, by the Minnesota Court of Appeals.

The case involves Phillip Brent Carter Jr., who was convicted in April 2019 on four counts of first-degree burglary; fourth-degree criminal sexual conduct with a helpless or mentally impaired person; fourth-degree attempted criminal sexual assault; and fifth-degree criminal sexual conduct of sexually contacting a person without consent.

The Court of Appeals agreed in part to Carter’s appeal where the district court must resentence Carter for a fourth-degree criminal sexual conduct charge.

The decision was considered and decided by Presiding Judge Carol Hooten and Judges Renee L. Worke and Lucinda E. Jesson.

Carter was convicted of breaking into two Brainerd residences during the early morning hours of August 2018. During the first break-in, Carter pulled a blanket off the victim and touched her thigh. It woke her up and she told him to leave and he ran out the front door. She was missing an Xbox gaming system. Shortly after, Carter broke into a second residence where the victim woke up when he was sexually assaulting her. The victim yelled at him and he said “Oh, wrong house,” and ran out the door. This victim was missing money and her phone.

Carter represented himself and waived his right to a jury trial. The district court sentenced Carter to 57 months in prison for first-degree burglary and 12 months and one day for fourth-degree attempted criminal sexual conduct to be served consecutively.

He also was given 69 months for first-degree burglary involving an assault, which would be served consecutively with the first sentence. The District Court did not enter sentencing for the remaining counts.

According to the unpublished appeals court opinion, Carter had three arguments in the case:

  • First: Argued his convictions for three of the seven counts — first-degree burglary, fourth-degree attempted criminal sexual assault and fifth-degree criminal sexual conduct of sexually contacting a person without consent — should be reversed as the evidence was insufficient to sustain the convictions.

  • Second: Argued the District Court erred by entering judgments of convictions for four counts of first-degree burglary arising from the same incident, “erroneously entered judgments of conviction for attempted fourth-degree and fifth-degree criminal sexual conduct arising from the same incident, and erroneously imposed consecutive sentences for counts that were not presumptive prison commitments.”

  • Third: Argued the District Court erroneously imposed an upward dispositional departure for his conviction for attempted fourth-degree criminal sexual conduct.

The Court of Appeals ruled the evidence was sufficient to support Carter’s conviction of attempted fourth-degree criminal sexual conduct. The state court stated his conduct was more than simply touching one of the victim’s thigh — he removed a blanket from her legs while she was asleep in order to touch her.

The appeals court also found that the District Court erred by entering convictions on three counts — fifth-degree criminal sexual conduct and and two counts of first-degree burglary with a dangerous weapon — because they were part of the same behavior incidents, therefore they should be vacated.

“... two different ways of committing burglary arose during the same incident, only one conviction can stand,” the document stated on the state law.

The appeals court also found the District Court erred when it imposed a consecutive sentence on attempted fourth-degree criminal sexual conduct regarding the first victim. However, the court did not abuse its discretion when it sentenced Carter to a permissive consecutive sentence on fourth-degree criminal sexual assault of the second victim.

A consecutive sentence is when a defendant serves one sentence and then serves the second sentence for the other offense. Sentences also can be concurrent, meaning the defendant serves both sentences at the same time.

If a defendant is convicted of multiple offenses, it is presumed that sentences for these offenses will be served concurrently, the court document stated. If a permissive consecutive sentence is improper, then the sentence is considered a departure, and the District Court must support the departure with written reasons to depart, the document stated.

The Court of Appeals stated the District Court must resentence Carter on the attempted fourth-degree criminal sexual conduct.