This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-115

 

State of Minnesota,

Respondent,

 

vs.

 

Gaddis Dolomite Johnson,

Appellant.

 

Filed January 3, 2005

Affirmed

Willis, Judge

 

Hennepin County District Court

File No. 03043009

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN† 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN† 55487 (for respondent)

 

John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN† 55414 (for appellant)

 

††††††††††† Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Hudson, Judge.

U N P U B L I S H E D†† O P I N I O N

WILLIS, Judge

††††††††††† Appellant challenges his conviction of first-degree aggravated robbery, claiming that he was denied the effective assistance of counsel and that the district court abused its discretion by refusing a downward sentencing departure. †Because we conclude that appellant has not shown that he received ineffective assistance of counsel and we find no abuse of discretion by the district court, we affirm.

FACTS

At about 1:00 a.m. on June 24, 2003, Kevin Kinley and Jacob Ladd were riding their bicycles on the Nicollet Mall in downtown Minneapolis when appellant Gaddis Johnson asked them for the time.† Kinley stopped, and Johnson said, ďCan I get this bike off you?Ē† Kinley refused to give Johnson his bicycle, and Johnson then struck him twice.† After the second punch, Kinley gave Johnson the bicycle.† Johnson yelled to his companion to take Laddís bicycle, which the companion did, and Johnson and his companion rode away on the bicycles.†

††††††††††† A Metro Transit bus driver, who was driving his route on the Nicollet Mall, saw Johnson take Kinleyís bicycle.† After Johnson and his companion rode away, the bus driver called Kinley and Ladd to his bus and then called the police.† A few minutes later, the police picked up Johnson and his companion, who matched the descriptions of the suspects.† The police brought Kinley and Ladd to the suspects for a show-up, and Kinley and Ladd identified Johnson as the man who had struck Kinley and taken his bicycle.† They also identified their bicycles and Johnsonís companion.† Johnson was charged with first-degree aggravated robbery under Minn. Stat. ß 609.245, subd. 1 (2002).†

††††††††††† Following a bench trial in October 2003, the district court found Johnson guilty of first-degree aggravated robbery and the lesser-included offense of simple robbery, and imposed the guidelines sentence of 78 months for the conviction of first-degree aggravated robbery based on Johnsonís criminal-history score of three.† This appeal follows.

D E C I S I O N

I.

 

Johnson argues that he was denied effective assistance of counsel, claiming that his attorney admitted Johnsonís guilt without his consent.† Claims of ineffective assistance of counsel are mixed questions of law and fact reviewed de novo.† State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).†

††††††††††† To support a claim of ineffective assistance of counsel:

First, the defendant must show that counselís performance was deficient.  This requires showing that counsel made errors so serious that counsel was not functioning as the ďcounselĒ guaranteed the defendant by the Sixth Amendment.† Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counselís errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

 

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).† To prove deficient performance, a defendant must show that counselís representation fell below an objective standard of reasonableness.† State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).† And to prove prejudice, a defendant must show that the result at trial would have been different but for the professionally unreasonable representation.† Id.

Defense counsel may admit to a defendantís guilt as a valid trial strategy.† State v. Wiplinger, 343 N.W.2d 858, 861 (Minn. 1984).†† But if counsel concedes the defendantís guilt without the defendantís consent, counselís performance is deficient and prejudice is presumed.† State v. Jorgensen, 660 N.W.2d 127, 132 (Minn. 2003).† If defense counsel admits the defendantís guilt without explicit consent, the defendant is entitled to a new trial unless there is evidence that he acquiesced in his counselís admission.† Id.

††††††††††† After the defense rested but before closing arguments, Johnsonís counsel asked the court to consider, in addition to the charged offense of first-degree aggravated robbery, the lesser-included offenses of simple robbery and theft from person.† The district court took the request under advisement, and counsel made their closing arguments.† Johnson argues that his counsel admitted his guilt to the lesser-included offenses of simple robbery and theft from person when, in her closing, she stated, ď[W]e would ask the court to find Mr. Johnson not guilty of the aggravated robbery and we would leave it to the court as which of those other two that we have submitted.Ē† Johnson also argues that his counsel admitted that he used force, an element of simple robbery, when in her closing she said, ďNot that there wasnít any force used.Ē

We conclude that Johnsonís counsel did not admit his guilt in either of the statements Johnson complains of.† In the first statement, his counsel simply pointed out that the district court had yet to decide whether to consider lesser-included offenses.† This is not inconsistent with her argument that the state had not proved Johnsonís guilt of any crime.† Throughout the trial, and in her closing, Johnsonís counsel argued that the witness identifications of Johnson were flawed.†††

We similarly conclude that counselís statement regarding the use of force was not an admission of Johnsonís guilt.† Johnsonís counsel was merely stating that the evidence showed that whoever committed this crime used some force.† That is not inconsistent with counselís argument that the state had not shown that Johnson was the person who committed the crime.† Because we conclude that Johnsonís counsel did not admit his guilt, we do not reach the issue of whether Johnson consented to such an admission.

II.

 

††††††††††† Johnson also argues that the district court abused its discretion by refusing to grant a downward durational departure from the sentencing guidelines.† Johnson argues that his conduct was less serious than that typically involved in a first-degree aggravated robbery because ďit was at the least serious end of the Ďbodily-harmí continuum.Ē

A district courtís sentencing decision will be overturned only if there is a clear abuse of discretion.† State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).† The district court may depart from the presumed sentence if there are substantial grounds that tend to excuse or mitigate the defendantís culpability, even though those grounds do not amount to a defense.† Minn. Sent. Guidelines II.D.2.a.(5).† In considering whether to depart from the guidelines, a district court should consider whether the defendantís conduct was significantly more or less serious than that typically involved in the commission of the crime in question.† State v. Spain, 590 N.W.2d 85, 88Ė89 (Minn. 1999).† To reverse a district courtís decision to depart or not depart from the guidelines, this court must

have a strong feeling that the sanction imposed exceeds or is less than that ďproportional to the severity of the offense . . . and the extent of the offenderís criminal historyĒ as aggravated or mitigated by the circumstances of the offense and that the trial judge exceeded his discretion by assessing the sanction.

 

State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981).† The district court determined that a downward departure was not warranted because, while Johnson was not armed with a dangerous weapon, he in fact did use violence in committing the offense by punching the victim.

A person commits first-degree aggravated robbery when he inflicts bodily harm on another while committing a robbery.† Minn. Stat. ß 609.245, subd. 1 (2002).† Bodily harm is ďphysical pain or injury, illness, or any impairment of physical condition.Ē† Id. ß 609.02, subd. 7 (2002); see also State v. Johnson, 277 Minn. 230, 237, 152 N.W.2d 768, 773 (1967) (stating that there is no need to show a permanent injury and that experiencing pain from being struck and shoved is bodily harm).† Because nothing in the record suggests that Johnsonís conduct was less serious than that typically involved in a first-degree aggravated robbery, we conclude that the district court did not abuse its discretion by refusing to grant a downward durational departure from the sentencing guidelines.† It is a rare case that warrants reversal of a district courtís refusal to depart in sentencing.† State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).† This is not such a case.

Affirmed.