This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








State of Minnesota,





Joseph Francis Munsch,




Filed November 1, 2005


Toussaint, Chief Judge

Dissenting, Randall, Judge


Mille Lacs County District Court

File No. K2-04-269



Mike Hatch, Attorney General, Leah M. P. Hedman, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Janice S. Kolb, Mille Lacs County Courthouse, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)


John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Attorney General, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Joseph Francis Munsch challenges his convictions and his sentence, arguing that there is insufficient evidence to sustain his conviction of attempted second-degree murder, that he was denied effective assistance of counsel, and that the trial court abused its discretion in denying his request for a downward departure from the presumptive sentence.  The trial court sentenced Munsch to 153 months in prison, which is the presumptive sentence for attempted second-degree murder when the defendant has a criminal history score of zero.  We affirm.



            In considering a claim of insufficient evidence, this court’s review is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of proof beyond a reasonable doubt, could reasonably conclude that the defendant was proven guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Munsch was convicted of attempted second-degree murder.  “Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime.”  Minn. Stat. § 609.17, subd. 1 (2002).  In addition to other possibilities not relevant to this case, a person is guilty of second-degree murder when that person “causes the death of a human being with intent to effect the death of that person . . . without premeditation.”  Minn. Stat. § 609.19, subd. 1(1) (2002).  “‘With intent to’ . . . means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”  Minn. Stat. § 609.02, subd. 9(4) (2002).         

Munsch challenges that there is sufficient evidence that he intended to kill J.K.  Because intent is a state of mind it is “generally proved circumstantially — by drawing inferences from the defendant’s words and actions in light of the totality of the circumstances.”  State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997).  In considering a defendant’s intent, “the jury may infer that a person intends the natural and probable consequences of his actions and a defendant’s statements as to his intentions are not binding on the jury if his acts demonstrated a contrary intent.”  Id.  

Here, the record shows that J.K. and Munsch were drinking vodka together on the night of March 6, 2004, at Munsch’s home; Munsch’s father was asleep in one of the bedrooms.  Early the next morning, a dispute arose between Munsch and his father.  During the dispute, Munsch went to a bedroom, retrieved a .22 caliber pistol, and shot at a wall.  Believing that the argument was “none of [his] business” and disturbed by the volume of the gun blast, J.K. decided to go outside to smoke a cigarette.  While sitting outside, J.K. thought he heard a second shot inside the house and started walking away from the house eventually stopping under a nearby light pole.  As J.K. was standing under the pole, he saw Munsch exit the home.  J.K. heard Munsch yell, “Where did you go?,” and J.K. responded, “I’m over here.”  J.K. then heard a gunshot and he yelled at Munsch, “What are you doing?”  Munsch fired another shot and J.K. felt the bullet go through his sweatshirt.  J.K. started running down the road towards a friend’s home and heard one more shot bounce off the road.  It is uncontested that while the pistol was a semiautomatic, during this incident, Munsch had to load a new bullet into the pistol after each shot. 

In light of the evidence that Munsch continued to shoot in J.K.’s direction even after J.K. yelled out and started running away, it is reasonable for the jury to infer that Munsch was attempting to hit J.K. when he fired the pistol. The natural and probable result of shooting a firearm at a person is the death of that person.  We conclude there is a reasonable basis for the jury to conclude that Munsch intended to kill J.K. when Munsch fired the pistol and is, therefore, guilty of attempted second-degree murder.    


Munsch argues he was denied effective assistance of counsel because a competent attorney would have requested that his charge of possessing drug paraphernalia be severed or would have advised him to plead guilty to that charge in order to avoid the “prejudicial references” to his drug use.  Generally, an ineffective assistance of counsel claim should be raised in a postconviction hearing, rather than on direct appeal because “[a] postconviction hearing provides the court with additional facts to explain the attorney’s decisions, so as to properly consider whether a defense counsel’s performance was deficient.”  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (quotation omitted).  Munsch did not raise his claim of ineffective assistance of counsel claim in a postconviction hearing.

Munsch argues that review on direct appeal is proper because there “could have been no strategic reason” for his trial counsel not to request the drug paraphernalia charge be severed from the other charges.  We disagree.  As the state suggests, there are possible strategic reasons for not requesting the trial court to sever lesser charges, such as allowing Munsch to admit to the lesser charges on the stand to build credibility.  And as the supreme court has previously stated:

A defendant may decide not to move to sever in a case in which severance would otherwise be in order because he wishes to avoid having to defend himself in separate trials.  He may also reasonably believe that he has a better chance of obtaining concurrent sentences if all the charges are filed at once. 


State v. Moore,274 N.W.2d 505, 507 (Minn.1979) (citation omitted).

Even if addressing Munsch’s claim was appropriate on direct appeal, the supreme court has “repeatedly stated” that appellate courts generally will not review claims of ineffective assistance of counsel based on trial strategy.  Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004).  Appellate courts’ “reluctance to scrutinize trial tactics is grounded in the public policy of allowing counsel to have the flexibility to represent a client to the fullest extent possible.”  Id. (quotation omitted).  Because Munsch’s ineffective-assistance claim only involves a matter of trial strategy, which the record arguably demonstrates he was aware of and agreed was appropriate, we decline to address the merits of his claim. 


Munsch argues that the trial court abused its discretion in declining to grant his request for a downward departure because the court impermissibly concluded Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) limited its ability to depart downward based on judicial findings.  The decision whether or not to depart from the presumptive sentence rests in the trial 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).  But a trial court “has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  Appellate courts generally will not interfere with a trial court’s refusal to depart downward.  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). 

Blakely does not apply to downward departures.  The trial court concluded that whether or not Blakely applies, the court did not “see [mitigating] factors here despite the serious arguments of [the defense] attorney.”  Because the trial court concluded that no mitigating factors were present, the court did not abuse its discretion in imposing the presumptive sentence. 



RANDALL, Judge (dissenting).


I respectfully dissent and would remand to the district court for re-sentencing.  It seems the district court believed that the United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) affected its ability to grant a downward departure.  The district court made the following statement before sentencing appellant: 

Recent case law stresses the importance of factual findings found by a jury to justify an upward departure, and I think that is analogous to a downward departure as well.  That same logic should apply, and there should be specific factual findings for the Court to make a determination as to whether a departure either upward or downward is appropriate under the circumstances.  Obviously I have the discretion under law to do that, but I think the case law makes it very clear that the Trial Court should be very careful in using any kind of a factual basis to make a determination of a downward departure.


The district court’s belief was sincere.  Blakely and its myriad nuances have yet to be fleshed out by the United States Supreme Court.  Then, after that, the Minnesota Supreme Court can try to figure out what the United States Supreme Court meant.  But, in the meantime, I do not see any issue in this case.  Although this issue has not been directly addressed in Minnesota, the First Circuit, in United States v. Bermudez, 407 F.3d 536 (1st Cir. 2005), did decide (at least for themselves) whether the United States Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005) (applying Blakely to federal sentencing guidelines) had any relevance in decisions to depart downward.  The
First Circuit concluded that “[o]nly judge-found facts that serve mechanically to raise a defendant’s sentence above that authorized by the jury verdict of guilty plea amount to Sixth Amendment claims.”  Bermudez, 407 F. 3d at 545.  The Third Circuit, in a case involving a defendant’s argument that she was entitled to a downward departure, also stated, “This case is not governed by Blakely... because it does not involve an upward departure affected by criminal conduct to which the right of jury trial applies.”  United States v. Carey, 382 F. 3d 387, 389 n. 1 (3d Cir. 2004).

In Blakely, the Supreme Court held that the relevant “statutory maximum” discussed in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348 (2000) “is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”  Blakely, 542 U.S. at ___, 124 S. Ct. at 2537 (emphasis added).  The Supreme Court in Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Apprendi, 530 U.S. at 490, 120 S. Ct. 2362-63.  The Supreme Court stated in Blakely:

This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the truth of every accusation against a defendant should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, and that an accusation which lacks any particular fact which the law makes essential to the punishment is no accusation within the requirements of the common law, and it is no accusation in reason.


Blakely, 542 U.S. at ___, 124 S. Ct. at 2536.

            The holdings in Blakely and Apprendi are that the Sixth Amendment prevents a judge from enhancing a sentence beyond what the legislature prescribed as the maximum punishment for the crime that the jury found the defendant guilty of committing.  I do not see any common sense, any equity, any reason having anything to do with the fair administration of justice to put artificial brakes on a judge’s ability to exercise leniency.   The brakes on the power of any of the three branches of government to be overly harsh on the citizenry are a well-founded bedrock of English common law upon which we stand. 

Here, the district court’s belief that Blakely also implies that the Sixth Amendment prevents a judge from departing downward unless the jury finds mitigating facts, such as the defendant’s particular amenability, is not supported by the language of either Blakely or ApprendiBlakely is a shield against overly harsh sentencing.  It is not a sword cutting off a judge’s right to look at the good qualities of a defendant.[1]

            It is readily apparent that the district court’s consideration of a downward departure was tainted by its belief that Blakely would apply to such a departure.  The record strongly suggests that a logical basis to at least consider a downward departure exists.  The presentence investigator’s statement contains, in relevant part, that “this incident is very out of character for this young man” and that he “would strongly support a downward departure.”  I do not suggest that this record mandates the rare appellate court-imposed downward departure.  I do suggest the district court is entitled to consider one without feeling that its hands are tied by Blakely.  I would give the district court a second chance to consider, de novo, the appellant’s request for a downward departure.   

[1]  Narrow exceptions, such as the law requiring Minnesota judges to impose a life sentence when the verdict comes back premeditated murder in the first degree, regardless of a defendant’s criminal record or the lack of one, are not at issue.