This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Bernard Francis O’Donnell,
Gordon W. Shumaker, Judge
Ramsey County District Court
File No. K401903
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant argues on appeal that his sentence for kidnapping and second-degree assault is disproportionate to the crimes and unfairly exaggerates his criminal record. Because the district court did not abuse its discretion in departing upward in sentencing appellant, we affirm.
Appellant Bernard O’Donnell “scoped out” the Geller Jewelry store, and later he and an accomplice went to the store to rob it. O’Donnell went in first; his accomplice entered shortly afterward. When both were inside the store, O’Donnell accosted the proprietor and demanded jewelry. The proprietor did not comply, and during a resulting altercation O’Donnell displayed a pistol to the proprietor. Although the pistol appeared to be an authentic firearm, it actually was a BB gun. O’Donnell subdued the proprietor and tied him up. O’Donnell and his accomplice then put jewelry into a bag.
Before completing the robbery, O’Donnell saw police cars drive up to the store. When officers got out of their cars, O’Donnell pointed the gun at an officer through the store window. No officer entered the store.
The accomplice then left through the store’s front door. O’Donnell followed, holding the proprietor in a choke-hold and using him as a shield. An officer was able to hit O’Donnell on the head. O’Donnell released the proprietor and fell to the ground. The police arrested him.
Ultimately, O’Donnell pleaded guilty to kidnapping and second-degree assault. The state dismissed other charges. The presumptive sentence for O’Donnell for kidnapping is 108 months and for second-degree assault 57 months in prison.
Because O’Donnell has previous convictions of violent crimes, he became subject to an increased sentence as a repeat offender under Minn. Stat. § 609.1095 (2000). As part of a plea agreement, O’Donnell agreed to a 30-year “cap” on his sentence. The district court imposed concurrent sentences of 360 months (30 years) for kidnapping and 84 months for second-degree assault.
On appeal, O’Donnell acknowledges that the sentence is authorized by law, but, considering the context of the crimes and the lesser sentence given his accomplice, he argues that his sentence is unfair and disproportionate to the crimes to which he pleaded guilty.
The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
The district court may impose an aggravated durational departure from the presumptive imprisonment sentence, up to the statutory maximum, whenever a person is convicted of a felonious violent crime if the offender was at least 18 years old at the time the felony was committed, and:
(1) the court determines on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes; and
(2) the court finds that the offender is a danger to public safety and specifies on the record the basis for the finding, which may include:
(i) the offender’s past criminal behavior, such as the offender’s high frequency rate of criminal activity * * * or long involvement in criminal activity * * * ; or
(ii) the fact that the present offense of conviction involved an aggravating factor that would justify a durational departure under the sentencing guidelines.
Minn. Stat. § 609.1095, subd. 2 (2000). O’Donnell was 60 years old at the time of the crime, so age is not an issue. Violent crimes include both kidnapping and second-degree assault. Minn. Stat. § 609.1025, subd. 1(d) (2000).
The district court first found that O’Donnell had previously committed two or more prior violent offenses. The record supports this finding.
At the sentencing hearing, the district court determined that O’Donnell was subject to the maximum sentence because he is a danger to public safety. The court provided the basis for this finding on the record:
I look at the facts in this case and I see that you threatened officers and told them to back off or I’m going to shoot him. You tied up [the victim] who was in his business with plastic strips. He was on the floor while things were being emptied out of the store shelves and jewelry being placed in a plastic bag by your accomplice. You picked up [the victim] off of the floor after he had been tied up there and you took him hostage and used him as a shield so that you could attempt to safely exit the store. That is after you realized that there wasn’t a back door and there wasn’t an opportunity to get out and you saw the police officer. This is an extremely dangerous, serious and violent crime that you committed.
The district court also found that O’Donnell was the “mastermind” of the offense, that he committed this robbery in essentially the same way he committed other jewelry store robberies, that his actions are readily distinguishable from those of his accomplice, and that his sentence would be proportional to the crimes because of the seriousness of the crimes and the extreme danger involved in their commission.
The court then announced its intention to depart durationally upward from the guidelines sentence under Minn. Stat. § 609.1095, subd. 2, and found on the record that
your extensive criminal history which contains ten prior felonies. For the federal interstate transportation of stolen property convictions which are remarkably similar in modus operandi to the one that you committed that is the instance offense. The fact that you have spent approximately 25 years in prison and by your own admission and by the facts in this record, there has been no rehabilitative effect. But the nature of this case which occurred in broad daylight in a busy shopping center where individuals who are members of the public expected that they were going and carrying out their daily business in a safe environment and that safety was threatened and jeopardized by the nature of the offense you committed. By the terror that you imposed on the victim by taking him hostage and then later using him as a shield to get Jout of a dangerous situation.
The court finds that you and the offenses that you have committed support this finding that you are a danger to the public safety and an upward departure is warranted.
The court satisfied the statutory requirement of providing the basis for its finding that O’Donnell is a danger to public safety. Nevertheless, we must also consider whether the recited basis comports with the substantive requirements for the application of the repeat-offender statute.
Because the district courts, in general, have experience in interpreting and applying the statutory language “danger to public safety,” we will not reverse this finding unless clearly erroneous. State v. Kimmons, 502 N.W.2d 391, 395 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993). The district court based its finding that O’Donnell is a danger to public safety both on his extensive past criminal activity and on the existence of aggravating factors in the crimes that O’Donnell pleaded guilty to.
1. Past Criminal Behavior
A “career criminal” is one “whose primary occupation is committing crimes or whose lifestyle is one of criminality.” State v. Flemino, 529 N.W.2d 501, 503 (Minn. App. 1995), review denied (Minn. May 31, 1995). The district court’s basis for its conclusion that O’Donnell has a long involvement in criminal activity is his past record of ten felony convictions and the similarity in modus operandi of some past crimes and the present offenses. The district court also found that, despite O’Donnell’s 25 years in prison, he has not been rehabilitated and he continues to engage in criminal activity.
The record supports these findings. O’Donnell’s earliest adult crimes occurred in 1963. His most recent past crimes occurred in 1979, when he robbed a jewelry store each month in various states over a five-month period. The details of these robberies are very similar to his robbery of the jewelry store in this case. The 1979 robberies resulted in federal convictions of interstate transfer of stolen goods in 1980, and O’Donnell was sent to prison. He was paroled in 1992 and discharged from supervision in 1996. However, he admitted in the presentence investigation interview that he resumed his criminal activity by “fencing” jewelry between 1994 and 1996.
2. Aggravating Factor
A district court may depart from the presumptive sentence if aggravating factors exist. Minn. Sent. Guidelines II.D. In deciding whether to depart, the district court must decide whether the defendant’s conduct is more or less serious than that typically involved in the commission of the crime in question. State v. Esler, 553 N.W.2d 61, 64 (Minn. App. 1996), review denied (Minn. Oct. 15, 1996). It should be noted again that the second-degree assault conviction was based on O’Donnell’s pointing the gun at a police officer.
The district court found that O’Donnell was especially dangerous to public safety because of his conduct in robbing the store. He bound the proprietor of the jewelry store, applied a choke-hold to use him as a hostage and as a shield to facilitate his escape, and terrorized the proprietor. The district court also found that the offense occurred in broad daylight in a busy shopping center, threatening the safety of shoppers. The record supports these findings.
These findings show aggravating factors that justify an upward departure. O’Donnell treated the proprietor with particular cruelty by putting him in a choke-hold and using him as a hostage and a shield to protect his own safety, and by rendering the proprietor particularly physically vulnerable by binding him. See Minn. Sent. Guidelines II.D.2.b.(1)-(2) (aggravating factors include offender’s knowledge that victim was particularly vulnerable due to reduced physical capacity and that victim treated with particular cruelty).
Because the evidence supports the court’s findings, and the findings were made in accordance with Minn. Stat. § 609.1095, subd. 2, the district court did not abuse its discretion in sentencing O’Donnell to a sentence of 30 years in prison, the precise sentence “cap” to which O’Donnell freely agreed.
3. Unfair Exaggeration of Criminal Record
Generally, we will not interfere with a district court’s discretion in sentencing unless the sentence is disproportionate to the offense. State v. Smallwood, 594 N.W.2d 144, 157 (Minn. 1999). O’Donnell argues that his sentence is much longer than his accomplice’s, who, O’Donnell claims, has as lengthy a criminal record as does O’Donnell, and, thus, his sentence unfairly exaggerated his criminal record and the seriousness of the crime.
There is no evidence in the record showing the accomplice’s criminal history; so we cannot review this issue. But the district court noted that, although the accomplice took the jewelry, it was O’Donnell who masterminded the crime, who had possession of the BB gun, who bound the proprietor and later used him as a hostage and a shield, and who pointed the gun at the police. Thus, O’Donnell’s involvement in planning the robbery and carrying out the plan was both more extensive and more substantially criminal in nature than his accomplice’s conduct.
These findings are supported by the record. At the plea hearing, O’Donnell admitted having the gun, binding the proprietor, and later using the proprietor as a hostage and shield. The record also shows that O’Donnell had a prior relationship with the proprietor’s father and that O’Donnell planned to rob the store after speaking with the proprietor about money the father allegedly owed O’Donnell, but would not pay. Lastly, in his plea agreement, O’Donnell agreed that his sentence might be as long as 30 years.
O’Donnell cites to State v. Cook, 351 N.W.2d 385 (Minn. App. 1984), in support of his argument. But the circumstances of Cook are distinguishable from this case. In Cook, the offender was charged with aggravated robbery and kidnapping. The district court doubled the offender’s presumptive sentence because planning was involved and because the victim was in immediate and justifiable fear of his life. Id. at 386. The court did not impose a sentence for kidnapping; the only sentence imposed was for the robbery. Id. This court reversed, finding that any aggravated robbery is likely to involve planning and that the use of a weapon is part of the crime. Id. Thus, there were no aggravating circumstances supporting the sentence. Id.
Here, the court sentenced O’Donnell for kidnapping and second-degree assault. As discussed above, the kidnapping involved not only the use of what appeared to be a gun, but also binding and restraining the victim and using him as a shield to escape police capture. These extreme acts are not integral to the crime of kidnapping. Thus, Cook does not control.
The district court fully complied with the repeat-offender statute in sentencing O’Donnell. There was no abuse of discretion.