This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Noushoua (NMN) Kong,
State of Minnesota,
Hennepin County District Court
File No. 02073358
John M. Stuart, State Public Defender, Michael W. Kunkel,
Assistant Public Defender,
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Minge, Presiding Judge; Wright, Judge; and Collins, Judge.*
Appellant challenges the denial of his petition for postconviction relief, which contested the imposition of an upward departure for his conviction of first-degree assault committed for the benefit of a gang. Appellant argues that the postconviction court abused its discretion by determining the following: (1) appellant’s conduct was more serious than the typical first-degree assault; and (2) the victim was “particularly vulnerable” during the commission of the charged offense. Because the district court properly applied the law and did not abuse its discretion, we affirm.
In September 2002, appellant Noushoua Kong was at a park with a group of friends. One of appellant’s friends randomly approached a man (the victim) that they did not know. Appellant’s friend returned to the group and accused the victim of “talking trash” about members of appellant’s gang. After hearing this accusation, appellant pointed a gun at the victim and pulled the trigger. The gun jammed, and the victim began running away. Appellant pursued the victim through the park, and after clearing the jam, appellant shot the victim, who fell to the ground. Appellant ran up to the victim while he was on the ground and shot the victim three or four more times. Many other people were present and scattered when appellant fired the gun.
An amended complaint charged appellant with three counts: attempted first-degree murder for the benefit of a gang under Minn. Stat. §§ 609.17, .185(a)(1), .229 (2002); attempted second-degree murder for the benefit of a gang under Minn. Stat. §§ 609.17, .19, subd. 1(1), .229 (2002); and first-degree assault for the benefit of a gang under Minn. Stat. §§ 609.221, subd. 1, .229 (2002). In December 2002, appellant pleaded guilty to first-degree assault for the benefit of a gang, and the state dismissed the other two charges. At the guilty-plea hearing, the district court informed appellant that he would likely be sentenced to 135 months.
In determining the appropriate sentence, the district court considered the plea agreement and the testimony presented at the guilty-plea and sentencing hearings. The district court concluded that the “offense occurred in front of a number of people in a public park, and therefore, put a number of other individuals in specific danger.” The district court sentenced appellant to 135 months, which was an upward durational departure less than double the presumptive sentence.
In January 2006, appellant filed a petition for postconviction relief, arguing that the record was insufficient to justify an upward departure. The postconviction court denied appellant’s petition, reasoning that appellant’s crime “put innocent bystanders in fear and at risk and it was committed against a victim who was particularly vulnerable at the time the offense occurred.” This appeal follows.
The issue is whether the
postconviction court erred or abused its discretion in denying appellant’s
petition for postconviction relief, thereby affirming the upward durational
departure. Appellate courts “review a
postconviction court’s decision only to determine whether sufficient evidence
supports the court’s findings.” Greer
v. State, 673 N.W.2d 151,
appellant argues that even though the parties did agree that there were grounds
for departure, “the record must reflect adequate grounds for such a departure
before the district court is justified in imposing it.” A sentencing court may not rely solely on a
plea agreement in imposing an upward departure.
State v. Misquadace, 644
N.W.2d 65, 71 (
Next, appellant argues that
the record did not justify an upward departure.
The record must present substantial and compelling circumstances that
justify a departure from the applicable presumptive sentence. Rairdon v. State, 557 N.W.2d 318, 326 (
In determining whether
substantial and compelling circumstances are present in the record, district courts
“should consider whether the defendant’s conduct was significantly more or less
serious than that typically involved in the commission of the crime in
question.” Rairdon, 557 N.W.2d at 326 (quotation
omitted). District courts may look to
the defendant’s overall course of conduct and determine whether it “represented
a greater than normal danger to the safety of other people.” State v. McClay, 310 N.W.2d 683, 685 (
The Minnesota Sentencing
Guidelines also list aggravating factors that justify a departure. For example, a departure is justified when
(1) the victim was particularly vulnerable due to reduced physical capacity; or
(2) the victim was treated with particular cruelty.
Here, the postconviction court focused on two reasons for upholding the upward departure: (1) appellant’s crime “put innocent bystanders in fear and at risk”; and (2) appellant’s crime “was committed against a victim who was particularly vulnerable at the time the offense occurred.” Appellant argues that these reasons were insufficient to uphold the departure.
A. Fear and Risk
Appellant argues that the record does not justify an upward departure because his conduct did not place bystanders at any greater risk than the typical first-degree assault would. We disagree. The record shows that appellant chased the victim across a public park, that there were people in the park close to appellant at the time of the shooting, and that appellant fired multiple shots from his semi-automatic handgun. The postconviction court noted these facts in concluding that appellant “proceeded with a total disregard for public safety” and put many bystanders “in fear and at risk of injury.”
Appellant acknowledges that some
bystanders “were placed in fear of harm from his actions,” but he argues that “it
would be entirely ‘typical’ to anticipate that . . . bystanders are going to be
placed in some ‘normal’ degree of fear of harm” during the course of a
first-degree assault. In support of this
argument, appellant urges this court to compare his case to State v. Anderson, 463 N.W.2d 551 (Minn.
App. 1990). In
But in upholding the
durational departure imposed in
B. Particular Vulnerability
Appellant argues that the
postconviction court erred as a matter of law by determining that the victim’s
particular vulnerability, which arose during the course of the assault,
justified an upward departure. The sentencing
guidelines generally describe vulnerability as a product of age, infirmity, or
Appellant argues that,
“[n]othing in the language of the guidelines or any case law . . . suggests
that a vulnerability arising during the course of—and because of—a single
offense should be taken into account.”
But contrary to appellant’s assertion, some
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.