This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS
C2-00-294

 

State of Minnesota,
Respondent,

vs.

Houa Dai Yang,
Appellant.

 

Filed December 5, 2000

Affirmed

Forsberg, Judge*

 

Ramsey County District Court

File No. K6991744

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Beth G. Sullivan, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102-1657 (for respondent)

 

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

 

            Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.

U N P U B L I S H E D  O P I N I O N

 

FORSBERG, Judge

 

A jury convicted appellant Houa Dai Yang of unlawful possession of a firearm.  The trial court sentenced appellant to 60 months in prison, consistent with the sentencing guidelines.  Appellant did not bring any post-conviction motions.  In this appeal, appellant seeks a reversal of his conviction, contending that he was denied effective assistance of counsel because his trial attorney did not challenge the legality of appellant's seizure, that the trial court abused its discretion by imposing the minimum sentence, and, in his pro se brief, that he was denied an opportunity to plea bargain.  We affirm.

FACTS

 

On June 19, 1999, just before midnight, St. Paul Police Officer Mary Alberg responded to a call of persons engaged in a fight in the lower level of an apartment building.  Riding in the squad car with Officer Alberg was a law enforcement student observing the officer's duties as part of a school class requirement.

            Officer Alberg testified that, in the clearly lit lower level hallway of the apartment building, she saw six people standing in the hallway, with appellant pacing, yelling loudly, and acting agitated.  The other people were quiet.  One of the bystanders stated that appellant just started “freaking out.”  When Officer Alberg asked if there was a problem, appellant responded in the negative and turned to walk away from Officer Alberg in the direction of the back hall door.  Officer Alberg grabbed appellant’s belt and arm and attempted to detain him.  Appellant struggled, broke free, and began to run away.  Officer Alberg chased him and, with the law enforcement student’s assistance, caught and handcuffed him.

            Officer Alberg took appellant outside through the front doors with the law enforcement student following behind them.  Once outside, about 10 to 15 feet from the front door, Officer Alberg and the law enforcement student heard a clanging noise and, in the light of the street lamps, saw a silver handgun that had fallen onto the sidewalk.  The law enforcement student testified that he saw the gun in appellant's pants leg and, when appellant took another step, saw it dragged by appellant’s pants.  Officer Alberg instructed the law enforcement student to pick it up; the student then held onto the loaded gun until backup arrived.  Appellant denies knowing anything about the gun.

            A jury found appellant guilty of possession of a firearm by an ineligible person, under Minn. Stat. §§ 624.713, subds. 1(b), 2 and 609.11, subd. 5(b) (1998).  The trial court sentenced appellant according to the sentencing guidelines to 60 months in prison.  Appellant claims he was denied effective assistance of counsel because his trial attorney did not challenge the legality of the seizure.  Appellant further claims that the trial court erred in failing to impose a downward durational sentencing departure and that his rights were violated because the state did not plea bargain.


D E C I S I O N

 

I.

 

A defendant claiming ineffective assistance of counsel must show by a preponderance of the evidence that his counsel’s representation “‘fell below an objective standard of reasonableness’” and that counsel’s error so prejudiced defendant at trial that, but for the error, there would have been a different outcome at trial.  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2068 (1984)).  Whether representation fell below an objective reasonableness standard requires a determination as to whether the representation was “reasonable in the light of all the circumstances.”  Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989).  A strong presumption exists that counsel's representation fell within the range of reasonableness.  King v. State, 562 N.W.2d 791, 795 (Minn. 1997).  This court need not, however, determine “‘whether counsel’s performance was deficient’” if it concludes that the defendant was not prejudiced by counsel’s alleged errors.  Gates v. State, 398 N.W.2d 558, 562 n.1 (Minn. 1987) (quoting Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

In this case, there is no dispute that a seizure occurred.  See State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (defining seizure as occurring when officer restrains citizen’s liberty by physical force or show of authority).  But appellant contends that counsel’s failure to challenge appellant's seizure fell below an objective standard of reasonableness because counsel had a duty to challenge its legality in a pretrial hearing.  Appellant contends that, but for the allegedly illegal seizure, the police would not have found the gun.  And an illegal seizure would result in the suppression of the evidence of the gun.  Id. at 99.  In order to prevail on his ineffective-assistance-of-counsel claim, appellant must show a “reasonable probability” that the seizure was unlawful.  See Gates, 398 N.W.2d at 561 (quoting Strickland “reasonable probability” standard of ineffective-assistance-of-counsel claim).

Officer Alberg testified that she detained appellant because she observed his loud and disruptive behavior and he had apparently been drinking.  A person who knowingly engages in boisterous or noisy conduct tending reasonably to arouse alarm in others is engaging in disorderly conduct in violation of Minn. Stat. § 609.72, subd. 1(3) (1998). “A police officer may stop and temporarily seize a person to investigate that person for criminal wrongdoing if the officer reasonably suspects that person of criminal activity.”  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995).  Because Officer Alberg observed appellant’s disorderly conduct and someone was apparently alarmed enough at the confrontation to call the police, the seizure was lawful.

Appellant’s loud and agitated behavior coupled with his evasive conduct and attempts to leave also gave rise to a reasonable suspicion that appellant was engaged in criminal conduct or could harm someone.  See State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (evasive conduct may give rise to reasonable suspicion).  Based on the totality of the circumstances, Officer Alberg was justified in her decision to seize appellant.  See Harris, 590 N.W.2d at 99 (officer’s decision to seize person justifiable based on totality of the circumstances).  Because the seizure was lawful, appellant can show no prejudice and his ineffective-assistance-of-counsel claim fails.  We need not, therefore, determine whether counsel’s representation fell below an objective standard of reasonableness. 

II.

            In his pro se brief, appellant contends that the trial court abused its discretion by imposing a minimum sentence of 60 months.  The district court has broad discretion in sentencing, and we will not reverse a sentence absent a clear abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  Unless substantial and compelling circumstances are present, the district court must impose the presumptive sentence under the Minnesota Sentencing Guidelines.  Minn. Sent. Guidelines II.D.  Refusals to depart from a presumptive sentence will only rarely be reversed on appeal.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Even where there are grounds justifying departure, this court will not ordinarily interfere with the imposition of the presumptive sentence.  State v. Back, 341 N.W.2d 273, 275 (Minn. 1983).

            Minn. Stat. § 609.11, subd. 5(b) (1998), establishes the mandatory minimum sentence for appellant.  The statute states that a “defendant convicted of violating section * * * 624.713, subdivision 1, clause (b), shall be committed to the commissioner of corrections for not less than five years.”  In this case, appellant was found guilty of possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (1998).  Under that statute, appellant was ineligible to possess a firearm because he had been convicted of a crime of violence, the definition of which includes drug violations under Chapter 152, within the past ten years.  Id.; Minn. Stat. § 624.712, subd. 5 (1998).  The trial court thus did not abuse its discretion and properly imposed the mandatory 60-month minimum sentence.

            Finally, appellant contends that his rights were violated because the state did not plea bargain.  The record does not support appellant’s argument, and appellant has not supplied the court with relevant evidence or law.  We thus decline to review this issue further.

            Affirmed.

           



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