This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota





Somboun (NMN) Kounlabout,



Filed April 25, 2000


Crippen, Judge


Hennepin County District Court

File No. 98124309


Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and


Amy Klobuchar, Hennepin County Attorney, Andrew R. Winter, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant Somboun Kounlabout disputes the second-degree assault sentence imposed by the trial court, arguing that the greater-than-double upward departure was not supported by severe aggravating circumstances.  Because we find that appellant voluntarily waived his right to be sentenced under the guidelines and the record independently sustains an upward departure, we affirm.



            Appellant was charged with attempted first-degree murder for a June 1998 assault in which he planned to “get” the victim in revenge for his having damaged appellant’s brother’s car.  Appellant pleaded guilty to second-degree assault under a plea agreement calling for a sentence in the range of 54 to 106 months.  The statutes dictate a mandatory minimum sentence of 36 months and a maximum sentence of 120 months for a second-degree assault committed with a firearm and resulting in substantial bodily harm, with 36 months being the presumptive sentence.[1]  Minn. Stat. §§ 609.11, subd. 5(a), 609.222, subd. 2 (1998).  The trial court sentenced appellant to 90 months in prison, a sentence that was within the plea-bargain arrangement but represents a more than double upward-departure from the presumptive sentence.


            An upward departure from a presumptive sentence under the sentencing guidelines may be imposed only if “substantial and compelling” aggravating circumstances are present.  State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996).  A decision to depart from the sentencing guidelines rests within the sentencing court’s discretion and will not be reversed on appeal absent an abuse of discretion.  Id. at 776.  In addition, a defendant may waive his right to be sentenced under the guidelines, although he “must have been advised of his or her right to be sentenced under the guidelines * * * and have had the opportunity to consult counsel.”  Id. at 777.  Such a waiver must be knowing, intelligent, and voluntary.  State v. Sims, 553 N.W.2d 58, 60 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).

            Appellant does not claim that his plea bargain was anything other than knowing, intelligent, or voluntary.  And the trial court did not abuse its discretion in sentencing appellant to a term that was longer than the presumptive sentence under the guidelines, because appellant waived his rights to be sentenced under the guidelines when he agreed to a sentence range of 54 to 106 months.  See State v. Wilkinson, 539 N.W.2d 249, 253 (Minn. App. 1995) (holding that while normally a court that is durationally departing from the sentencing guidelines should not impose a sentence of greater than double the presumptive sentence, where “the sentence imposed by the trial court was in accordance with [a] plea bargain,” it may be proper).

            Additionally, the record independently supports the trial court’s upward departure.  The court had discretion to depart and has adequately explained reasons for departing.  See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (a reviewing court must examine the record to determine whether it supports the trial court's stated reasons for a departure).  The trial court noted that appellant’s conduct put a large number of people at risk, as shown by the number of people who witnessed appellant’s shooting episode, see State v. Back, 341 N.W.2d 273, 277 (Minn. 1983); that appellant was a ringleader, masterminding a crime committed by a group, see State v. Kindem, 338 N.W.2d 9, 17-18 (Minn. 1983), and that appellant showed considerable lack of remorse.  See State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998) (generally, lack of remorse is an insufficient reason to depart durationally, but it may be proper in some circumstances).  Furthermore, although not noted by the trial court, the record shows that appellant attacked the victim out of revenge, which may be a reason to upwardly depart from the presumptive sentence.  See State v. Doughman, 404 N.W.2d 867, 872 (Minn. App. 1987), review denied (Minn. June 26, 1987) (upholding upward departure where the crime was a “crime of revenge in which appellant disregarded the safety of others”).



[1] The presumptive sentence for second-degree assault with a dangerous weapon is the 36-month sentence minimum dictated by Minn. Stat. § 609.11, subd. 5(a), or the presumptive guidelines sentence, whichever is greater.  Minn. Sent. Guidelines II.E.  Second-degree assault is a level VI offense under the sentencing guidelines.  Minn. Sent. Guidelines V.  The 36-month sentence is greater than the sentence recommended by the guidelines for a level VI offense, and thus the 36-month sentence is the presumptive sentence.