may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jerome NMN Jones,
Filed December 8, 1998
Benton County District Court
File No. K0-97-451
Michael S. Jesse, Benton County Attorney, Courthouse, 531 Dewey Street, P.O. Box 129, Foley, MN 56329 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Mulally, Judge.[*]
center>U N P U B L I S H E D O P I N I O N
Appellant contests his sentence for second-degree drive-by murder, despite the district court's downward durational departure. Appellant asks that this court vacate his sentence and remand for re-sentencing to either 180 months for felony murder or 263 months for the drive-by shooting. Because appellant pleaded guilty to the charged offense and the facts justify the sentence imposed, we affirm.
The district court found that appellant initiated and continued to aggravate a chain of events that culminated in the shooting of the decedent. The court also found that the offense was mitigated somewhat by its finding that appellant was not the aggressor in the last stage of violence that led to the shooting and that appellant was afraid for his own life at the time of the shooting.
Pursuant to a negotiated plea agreement, appellant pleaded guilty to the second-degree drive-by murder of the decedent in violation of Minn. Stat. § 609.19, subd. 1(2) (1996). Fulfilling the terms of the agreement, the state waived the fine, moved to dismiss the remaining counts of an indictment, and requested a sentence not to exceed 339 months (the low end of the presumptive range). At the sentencing hearing, appellant requested a departure to 180 months, or alternatively, to 263 months as recommended in the presentence investigation report. Based on these findings, the district court ordered approximately a 25% downward departure to 270 months, and ordered appellant to pay restitution for the decedent's funeral expenses.
The Minnesota Sentencing Guidelines provide presumptive sentences for crimes based on an offender's criminal history score and the seriousness of the offense. "The presumptive sentence will be applied in most cases." State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985). Appellant pleaded guilty to a drive-by shooting, which is a level 10 offense. Appellant was on felony level probation for a terroristic threat offense, giving him a criminal history score of 2, based on a custody status point and a felony conviction point. Appellant had also previously been convicted of a fifth-degree controlled substance and two fifth-degree assault offenses. The presumptive sentence for a severity level 10 offense for a defendant with a criminal history score of two is 346 months, with a range of from 339 to 353 months. Minn. Sent. Guidelines IV.
A sentencing court has discretion to depart from the sentencing guidelines. The sentencing guidelines present a non-exclusive list of mitigating factors and require that a sentencing court provide written reasons to justify a departure from a presumptive sentence. Minn. Sent. Guidelines II.D. This court has held that as to a durational departure, the sentencing court must "`analyze the act as compared with other acts constituting the same offense.'" State v. Behl, 573 N.W.2d 711, 713 (Minn. App. 1998), review denied (Minn. Mar. 19, 1998) (quoting State v. Herrmann, 479 N.W.2d 724, 728-29 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992)). The trial court has discretion to depart when the offense involves "substantial and compelling circumstances." State v. Garcia, 302 N.W.2d 643, 646 (Minn. 1981), overruled on other grounds by Givens, 544 N.W.2d at 777.
Describing the events that culminated in decedent's death as "a building pressure cooker," the district court evaluated mitigating circumstances that could support a departure from the presumptive sentence. The district court found that appellant initiated and aggravated the chain of events that preceded the shooting. At the time of the shooting, however, the district court concluded that appellant was not the aggressor and was reacting to a fear for his own life based on the threats and hostilities of decedent and decedent's friends. Nevertheless, the district court concluded that appellant had fueled the hostilities and that appellant's testimonial evasiveness in court as to his behavior demonstrated a lack of remorse for his crime. Because appellant was not the final aggressor, the court found a mitigating circumstance; but because appellant had contributed to the situation, the court minimized the reduction of the presumptive sentence from 346 months to 270 months.
Appellant offers three arguments for vacating the district court sentence and ordering a further downward departure.
First, appellant argues that his use of force was mitigated by his subjective belief that he used reasonable force under the circumstances. Appellant compares this case to the circumstances in State v. Hennum, 441 N.W.2d 793 (Minn. 1989). In Hennum the supreme court ordered a downward departure because the decedent had physically and mentally abused the defendant for a period of years building up to the night of the offense, thus mitigating the crime. Id. at 801. The facts in Hennum were significantly different from the present case. There is no comparison between the years of abuse suffered by Hennum as opposed to the two days of escalating events, partly aggravated by appellant, in this case.
Second, appellant argues that the district court failed to recognize the suggestions of the dispositional advisor in a sentencing memorandum recommending a 180-month sentence. This court, under similar circumstances, has ruled that a presentence investigation (PSI) report "with a favorable recommendation is not, by itself, a mitigating factor" and "it does not compel a downward departure or prevent an upward departure." Hamilton v. State, 398 N.W.2d 680, 683 (Minn. App. 1987), review denied (Minn. Mar. 13, 1987). Further, the district court justified its sentencing conclusion despite the memorandum. While the PSI actually recommended a 263-month sentence, a state probation and parole agent disagreed with the recommendation and favored a more severe sentence based on appellant's previous aggressive and violent behavior.
Finally, appellant argues in favor of a 180-month sentence because such a sentence would be proportional to the offense, in that the facts of this case better fit the definition of felony murder, a less severe offense. This argument is flawed for two reasons. First, appellant's comparison of this case to a felony murder is an attempt to argue mitigating circumstances better handled by the district court. See Behl, 573 N.W.2d at 713. Second, appellant pleaded guilty to the drive-by shooting. If this case better fits the definition of felony murder, appellant should not have pleaded guilty to the drive-by shooting.
Appellant fails to demonstrate that the district court's sentencing was a clear abuse of discretion. The district court's ruling is fair and justified.
[*]Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.