This opinion will be unpublished and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
Kim Marie Holmes,
Filed July 3, 2007
File No. 47-CR-05-457
Lori Swanson, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Stephanie Beckman, Meeker County Attorney, Meeker
Frank Arend Schulte,
Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from conviction and sentencing for second-degree assault and terroristic threats, Kim Holmes challenges the district court’s denial of a downward sentencing departure and contends that ineffective assistance of trial counsel requires reversal. Because the district court did not abuse its discretion by denying a downward departure, and Holmes failed to demonstrate that her trial counsel’s performance was deficient, we affirm.
F A C T S
Holmes had driven to Johnson’s workplace to retrieve a digital camera that had a memory card with sexually explicit images of Holmes. The images could be viewed electronically, and Johnson and Holmes had an agreement that they alone would view the images and that the memory card would not be taken outside the house they shared. She and Johnson argued about their relationship the night before the incident and when Holmes awoke the next morning she noticed that the camera and the memory card were no longer in the house.
When Holmes arrived at Johnson’s workplace, she found Johnson and Davison in Johnson’s vehicle in the parking lot. She approached them, pointing a handgun in their direction and demanding the immediate return of the camera. While Holmes continued to point the gun at Johnson’s head, he slowly got out of the front of the vehicle, retrieved the camera and the memory card from a bag in the back of the vehicle, and gave them to Holmes. Holmes returned to her car and left.
The incident was reported, and a deputy from the Meeker County Sheriff’s Department and a Litchfield police officer went to Holmes’s house and confiscated the handgun. Holmes told the officers that she had gone to Johnson’s workplace to retrieve the camera and that she had pointed the handgun at him.
During the pretrial and trial proceedings, Holmes was represented by a public defender. After the jury returned a verdict of guilty on one count of second-degree assault and two counts of terroristic threats, Holmes released her public defender and retained a private attorney. Her substitute attorney moved for a downward departure on the grounds of diminished capacity, and the district court permitted testimony and argument on the motion. The district court denied a downward departure and imposed the mandatory-minimum executed sentence of thirty-six months for second-degree assault with a handgun and a concurrent fifteen-month sentence for making terroristic threats against Davison.
Holmes appeals the district court’s denial of her motion for a downward departure from the mandatory minimum sentence of thirty-six months for second-degree assault with a gun. She also contends that she is entitled to a new trial because her trial attorney provided ineffective assistance by failing to assert a defense of diminished capacity.
D E C I S I O N
A district court may depart from the presumptive sentence only if
“identifiable, substantial, and compelling circumstances” support the
A conviction of second-degree assault with a firearm carries a
mandatory minimum executed sentence of thirty-six months.
Following the testimonial hearing on the motion for a downward departure, the district court issued an order explaining its reasons for imposing the presumptive sentence. The stated reasons include that Holmes did not have a mental impairment that caused her to lack substantial capacity for judgment, that Holmes’s experiences from past abusive relationships did not excuse or mitigate her actions, and that the mandatory minimum sentence should be imposed because substantial and compelling reasons do not support a departure.
In a memorandum accompanying the order, the district court provided further explanation that corresponded with the statements the court made on the record at the close of the evidentiary hearing. The district court weighed heavily the danger created by Holmes’s use of a loaded gun in the manufacturing facility’s parking lot where other people were present. The district court also noted that Holmes held the gun close to Johnson’s face and that the incident occurred several hours after the argument and the transport of the camera and memory card from their home. Because of the deliberate conduct, the potential for a fatal confrontation, and Holmes’s failure to demonstrate a mental impairment or lack of capacity, the district court concluded that Holmes had not provided a basis to depart downward from the mandatory minimum sentence.
Holmes has not established that the district court abused its
discretion in denying her departure motion and imposing the presumptive
The Sixth Amendment guarantees
criminal defendants the right to effective assistance of counsel. State
v. Wright, 719 N.W.2d 910, 919 (
We note at the outset that Holmes did not provide a transcript of the jury trial. Without a trial transcript, we are generally unable to review and evaluate the proceedings to ascertain whether unprofessional errors caused prejudice that would alter the ultimate outcome. Nonetheless, for two significant reasons that are apparent without a transcript, we conclude that trial counsel’s failure to raise a diminished-capacity defense did not amount to ineffective assistance of counsel.
diminished-capacity doctrine has not been accepted in
Second, when Holmes’s
new counsel raised diminished capacity as a basis for a downward departure, the
court held a testimonial hearing to determine whether Holmes had a diminished
capacity or had suffered battering. After
hearing sworn testimony the district court found that the relationship between
Johnson and Holmes was not abusive and that her claim of diminished capacity
lacked merit. Thus it is doubtful that
the claim of diminished capacity could have succeeded even if it were an
available defense in