This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Robert Allen Ives,
Filed April 29, 2003
Hennepin County District Court
File No. 01098642
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103-2106; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)
Gary R. Bryant-Wolf, Barristers Trust Building, 247 Third Avenue South, Minneapolis, Minnesota 55415 (for appellant)
Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this criminal sentencing appeal, appellant Robert Allen Ives challenges his 306-month sentence, claiming it exaggerates the criminality of his conduct. Because we conclude that the trial court did not abuse its discretion in imposing four consecutive sentences for appellant’s crimes, we affirm.
On the evening of July 19, 2001, seventeen-year-old appellant Robert Allen Ives and cohorts Alonzo Atlas (Atlas), J.G.S., D.B.C., and J.D.T. met in south Minneapolis to plan an attack on a group of Somali males who allegedly attacked J.G.S. the previous day. Atlas, an adult member of the group, instructed the group to go to Currie Park, near the University of Minnesota’s West Bank. Atlas gave a gun to appellant and D.B.C. Once there, Atlas taunted a group of Somalis playing basketball. D.B.C. grabbed Y.A.H. by the neck and held a gun to his head. With the gun still against Y.A.H.’s head, D.B.C. pulled the trigger several times, but each time the gun misfired. Then, appellant clubbed Y.A.H. in the back of the head with the butt of his gun. The group of Somalis yelled that D.B.C.’s gun was fake and rushed toward him, ultimately knocking him down. Apparently believing that appellant’s gun was also fake, several individuals from the Somali group moved in on appellant, backing him up against a fence. Appellant claimed he had no chance to fire a warning shot and, out of fear, fired off six shots randomly into the crowd, wounding four people.
Three victims sustained severe, life-threatening injuries. M.M.F. was critically wounded and spent several months hospitalized, including a considerable length of time in a coma. Ultimately, M.M.F. lost a kidney as a result of the gunshot wound. M.M.F. has experienced nightmares and blackouts since the shooting.
A second bullet struck sixteen-year-old M.A.J. in the left buttock and traveled through his abdomen causing extensive damage. M.A.J. was playing basketball when appellant and his cohorts arrived and started taunting M.A.J. and his friends. M.A.J. ran when he heard shots fired; the bullet entered through his back as he was trying to run away. M.A.J. drifted in and out of a coma while hospitalized and he has suffered numerous complications from surgery requiring additional hospital visits. M.A.J. continues to suffer from night terrors and often relives the trauma. M.A.J. also continues to suffer from diminished appetite and frequent vomiting.
A third bullet struck sixteen-year-old A.M.A. in the abdomen necessitating two surgeries and a lengthy hospital stay. A.M.A. continues to suffer from frequent vomiting, diminished appetite and insomnia. The fourth gunshot victim, A.A., was not discovered until some six months after the shooting. A.A. had just left his mosque when he heard shots fired. A.A. ran toward his car but sustained a gunshot wound to his left forearm. The bullet had to be surgically removed.
Appellant pleaded guilty to three counts of first-degree assault and two counts of second-degree assault. At sentencing, the trial court imposed four consecutive sentences—one for each shooting victim—and ordered that the second-degree assault charge for the assault against Y.A.H. run concurrently due to the less serious nature of the crime. This appeal followed.
Appellant argues that consecutive sentencing imposed by the trial court unfairly exaggerates the criminality of his conduct. We disagree.
Consecutive sentencing of multiple felonies with multiple victims is permissive and within the broad discretion of the trial court. Minn. Sent. Guidelines II.F.2. We give great deference to the trial court because it “sits with a unique perspective on all stages of a case, including sentencing,” and the district court is in the “best position to evaluate the offender’s conduct and weigh sentencing options.” State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999) (quotation omitted). “The fact that the guidelines authorize either consecutive or concurrent sentencing in particular situations is not a justification for limiting that broad discretion.” Massey v. State, 352 N.W.2d 487, 489 (Minn. App. 1984), review denied (Minn. Oct. 16, 1984). Of course, when a defendant raises a fairness issue on a sentencing appeal, this court has discretion to modify the sentence. State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988). Under Norris, we may review whether multiple consecutive sentences “unfairly exaggerate the criminality of the defendant’s conduct.” Id.
[T]he legislature did not intend in every case to immunize offenders from the consequences of separate crimes intentionally committed in a single episode against more than one individual.
State v. Briggs, 256 N.W.2d 305, 306 (Minn. 1977) (quotation omitted). But the test is not “mechanistic”; rather, one sentence per victim is permissible where it appropriately reflects a defendant’s criminality. State v. Marquardt, 294 N.W.2d 849, 851 (Minn. 1980). In cases where the defendant assaulted more than one victim, consecutive sentencing may be necessary to accurately portray the severity of each assault. State v. Branson, 529 N.W.2d 1, 4 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995). When determining the propriety of consecutive sentencing, we are “guided by past offenses received by other offenders.” State v. Miller, 488 N.W.2d 235, 241 (Minn. 1992) (citation omitted).
Here, the trial court imposed four consecutive sentences—one for each shooting victim—and ordered the second-degree assault charge for appellant’s assault of Y.A.H. to run concurrently due to the less serious nature of the offense. Appellant contends that this aggregate 306-month sentence unduly exaggerates the criminality of his actions and argues several factors that he claims illustrate the unfairness of his sentence.
First, appellant argues that he was a minor at the time of the offense and was acting at the direction of an adult. The essence of appellant’s claim is that he was a scared and impressionable young man; but his claim is inconsistent with his actual conduct. Appellant went willingly to the park, with a gun, with the objective that he would assist in attacking young Somali men. Although not charged as a crime committed for the benefit of a gang, the record reflects that appellant is a member of the “Shotgun Crips,” and that the crime was gang-related. The state submitted with its sentencing memoranda pictures of appellant with gang members, among other things, throwing gang signs, and wearing gang colors. In addition, appellant was 18 years old when he entered his plea and was sentenced. Thus, he was not a juvenile, nor was this his first felony offense. We are not persuaded that his youth and alleged naiveté are mitigating factors in this case.
Next, appellant claims that he refrained from firing his gun “at several junctures.” Appellant compares his conduct to that of the defendant in Norris, who was convicted of first-degree murder and five counts of second-degree assault arising out of an aggravated robbery. Norris, 428 N.W.2d at 64. During the course of the robbery, Norris shot and killed a bar patron and threatened five other patrons. Id. at 71. Norris was sentenced to life imprisonment and to a consecutive term of 300 months, 60 months for each of the five assault convictions. Id. The Minnesota Supreme Court held that the imposition of the five consecutive sentences for the assaults unfairly exaggerated the criminality of Norris’s conduct. Id. Appellant claims that, unlike Norris, appellant did not fire his gun when he had the first opportunity to do so. Further, appellant claims that he was cornered, up against a fence, when he fired the six random shots, and that he lacked an opportunity to fire a warning shot. Norris, however, is distinguishable because in Norris, only one victim was shot. Here, four victims were shot, and three of those victims received grave, life-threatening injuries. Furthermore, as the trial court noted, appellant had any number of choices that day—even accepting appellant’s claim that he felt cornered—other than firing point blank into a crowd of people. Like the trial court, we also reject appellant’s claim that he had no opportunity to fire a warning shot into the air or ground.
Appellant further claims that his sentence is unduly harsh because the victims were the aggressors. See Minn. Sent. Guidelines II.D.2.a(1) (providing that it is a mitigating factor when the victim was an aggressor in the incident). This mischaracterizes the events of that day. Of particular significance is that appellant and his cohorts initiated the conflict and provoked the victims. Appellant and his cohorts went to Currie Park specifically looking for a particular group of Somalis to assault. Finding Y.A.H. instead, D.B.C. repeatedly assaulted Y.A.H. by choking him, pointing a gun at his head, and pulling the trigger several times (although the gun misfired). Appellant also assaulted Y.A.H. by clubbing him in the head with the butt of a gun. That the victims rushed appellant after the assault on Y.A.H. does not justify portrayal of the victims as aggressors. Both D.B.C. and appellant victimized Y.A.H., and there is no evidence in the record that Y.A.H. did anything to provoke appellant or his cohorts. Furthermore, one of the four gunshot victims was a passerby on the street who had no involvement in the altercation, and there is nothing in the record to suggest that the other three gunshot victims did anything either to provoke the initial altercation. Moreover, the victims did not realize that appellant’s gun was real and, as we have stated earlier, appellant had the opportunity to fire a warning shot into the air or the ground. On this record, we find no basis for characterizing the victims as aggressors, so as to mitigate the culpability of appellant’s conduct.
Appellant claims his sentence is unfair because his cohorts were either not charged or given probationary sentences. A codefendant’s more lenient sentence does not require a reduction in a defendant’s sentence. See State v. Starnes, 396 N.W.2d 676, 682 (Minn. App. 1986) (holding defendant not entitled to sentence reduction even where principal actor in crime received lighter sentence); State v. Lonergan, 381 N.W.2d 51, 53 (Minn. App. 1986) (holding co-defendant’s sentence does not mandate more lenient sentence for defendant). Moreover, none of appellant’s cohorts inflicted four gunshot wounds, three of a grave, life-threatening nature.
Appellant’s final claim that the trial court improperly based its sentence on a “zone of tranquility” theory is not supported by the record. Although the trial court commented on the importance of parks to a neighborhood’s sense of community, the trial court did not base its sentencing decision on this fact. The trial court cited numerous factors it considered: (1) appellant’s gang membership; (2) the random nature of the crime; (3) the impact on the community; (4) the pain and suffering of the families involved, including appellant’s; (5) the seriousness and permanence of the injuries appellant inflicted; (6) appellant’s positive attributes as a bright and responsible person with a supportive family; (7) appellant’s juvenile interventions to date; (8) positive recommendations offered on appellant’s behalf; (9) appellant’s seemingly separate personalities portrayed in sentencing; (10) appellant’s attorney’s advocacy; and (11) appellant’s reckless disregard for public safety. Also, the trial court considered the great loss appellant and his family will experience as a result of a lengthy prison sentence, but found the losses suffered by the many victims and their families were far greater and justified imposing consecutive sentences.
We conclude that imposition of the 306-month sentence was proper. We acknowledge the trial court’s finding that appellant demonstrated genuine remorse and sincerely apologized to the victims and their families at both the guilty plea and sentencing hearings. But remorse bears on whether a dispositional departure is proper, but has no bearing on whether a durational departure or consecutive sentencing are appropriate. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). The trial court recognized appellant’s sincerity, citing this as a factor for running the final sentence for the assault on Y.A.H. concurrently. But the deepest remorse does not repair the harm inflicted upon the victims, their families, and the community as a whole.