This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Apolinar Cortes Tellez,


Filed May 30, 2000


Davies, Judge


Carver County District Court

File No. K997176



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and


Michael A. Fahey, Carver County Attorney, Carver County Courthouse, 600 East Fourth Street, Chaska, MN 55318 (for respondent)


John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Davies, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Apolinar Cortes Tellez was convicted of two counts of attempted first-degree murder and one count of kidnapping.  The district court imposed a state sentence consecutive to a federal sentence appellant received on another charge.  Appellant challenges his 144-month state sentence on the grounds that a consecutive state sentence constitutes double punishment for a single behavioral incident, unduly exaggerates the criminality of his conduct, and is unnecessary because he will be deported after serving his federal sentence.  Because the district court did not abuse its discretion, we affirm.


            Appellant robbed the Chanhassen Bank at gunpoint.  After he collected the money, appellant took a bank employee as a hostage and ordered her to drive him away.  Chaska Police Officer Robert Roushar responded to the emergency call and chased appellant’s vehicle.  When the hostage spun her vehicle around and stopped, appellant, the hostage, and Officer Roushar all exited their vehicles.  Appellant fired two shots at Officer Roushar and forced the hostage to flee with him on foot.  The hostage soon escaped and the police located appellant in a residential area.  Appellant fired at the police; the police returned fire and later apprehended appellant.

            Appellant pleaded guilty to the attempted murder of Officer Roushar, the attempted murder of another officer, and the kidnapping of the hostage.  Under the plea agreement, the state recommended that appellant’s state sentence be capped at 144 months.  The district court sentenced appellant to a 144-month term of imprisonment to be served consecutively to a federal sentence for bank robbery.


“District courts have great discretion in imposing sentences.”  State v. Munger, 597 N.W.2d 570, 573 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).  Imposition of a consecutive sentence will not be reversed absent compelling circumstances.  State v. Beamon, 438 N.W.2d 397, 400 (Minn. App. 1989), review denied (Minn. May 12, 1989).

Appellant claims that his federal and state convictions arose from a single behavioral incident and consecutive sentencing therefore constitutes double punishment.  Whether offenses are part of a single behavioral incident is a fact determination that will not be reversed unless clearly erroneous.  State v. Butterfield, 555 N.W.2d 526, 530 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).

The record supports the district court’s finding that appellant’s bank robbery, kidnapping, and attempted murders were separate behavioral incidents.  The two attempted murders occurred after the bank robbery and outside the bank.  Thus, they were separated from the robbery in both time and place.  See State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995) (court considers time and place of offenses when determining if they are single behavioral incident).  The attempted murders were also separated from each other in time and place.  In addition, while appellant initially took the hostage at the bank, he later forced her to drive him elsewhere and to flee with him on foot. 

Moreover, the district court could justifiably conclude that these offenses were not motivated by the same criminal objective.  See id. (when determining if offenses are single behavioral incident, court considers whether they were motivated by single objective).  For example, appellant apparently robbed the bank to get the money, but fired at the police officers to avoid capture.  The district court did not clearly err in treating appellant’s federal and state offenses as separate behavioral incidents.

Appellant also argues that consecutive sentencing unduly exaggerates the criminality of his conduct because the federal court, when it sentenced appellant for the bank robbery, considered the kidnapping--for which appellant was later convicted in state court.

We determine whether consecutive sentencing exaggerates criminality by examining sentences in similar cases.  State v. Lee, 491 N.W.2d 895, 902 (Minn. 1992).  In State v. Schneider, 402 N.W.2d 779 (Minn. 1987), the Minnesota Supreme Court upheld consecutive sentences because the offender had committed burglary against one victim, kidnapped another, and murdered a police officer after leaving the scene.  Id. at 790.  In this case, appellant robbed a bank, then--after leaving the bank--kidnapped an employee and attempted to murder two police officers.  The facts here are comparable to the facts in Schneider.  The district court, therefore, did not unduly exaggerate appellant’s criminality by imposing a consecutive sentence.

The fact that the federal court considered the kidnapping when it sentenced appellant for the bank robbery also does not exaggerate appellant’s criminality.  Consideration at sentencing of an offender’s conduct only punishes the offender for the conviction being sentenced.  United States v. Watts, 519 U.S. 148, 154, 117 S. Ct. 633, 636 (1997).  Appellant was not convicted of kidnapping in federal court.  The federal court’s consideration of the kidnapping, therefore, did not constitute punishment for that crime.  The state court was therefore free to sentence appellant for kidnapping without exaggerating the criminality of his conduct.

            In addition, appellant’s state sentence does not unduly exaggerate his criminality.  Appellant concedes that this is a mitigated sentence.  In fact, had the district court imposed consecutive guideline sentences just on the attempted murders and ordered those sentences to run concurrently with appellant’s federal sentence, the result would have been more time in prison than appellant actually received.  Because appellant’s consecutive sentence is more lenient than a concurrent sentence could have been, its consecutive nature does not exaggerate appellant’s criminality.

            Finally, appellant argues that a consecutive state sentence is unnecessary to protect the public because he will be deported as soon as he completes his federal sentence.  This argument is not persuasive here because appellant has already returned to the United States twice after deportation.

            Because appellant’s state sentence does not constitute double punishment or unduly exaggerate the criminality of his conduct, the district court did not abuse its discretion by imposing a state sentence consecutive to appellant’s federal sentence.