A04-1239

State of Minnesota,

Respondent,

vs.

Kefa Apiemi Kebaso,

Appellant.

Filed May 17, 2005

Affirmed in part, vacated in part

Hudson, Judge

Hennepin County District Court

File No. 01-105594

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

Jennifer Inz, Eden Prairie City Attorney, 1600 IBM Park Building, #500, 650 Third Avenue South, Minneapolis, Minnesota 55402 (for respondent)

Bruce D. Nestor, De Leon & Nestor, 529 South Seventh Street, Suite 507, Minneapolis, Minnesota 55415 (for appellant)

Considered and decided by Hudson, Presiding Judge; Schumacher, Judge; and Halbrooks, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

On appeal from concurrent sentences arising from the same behavioral incident, appellant argues that (a) the district court erred by refusing to remove appellant’s sentencing judge for cause; and (b) the district court improperly failed to vacate one of appellant’s sentences. Because appellant failed to demonstrate that the district court was actually biased against him, we affirm appellant’s convictions. Because the district court erred by failing to vacate one of appellant’s sentences, we vacate appellant’s sentence for interference with a 911 call.

FACTS

On December 25, 2001, officers responded to a “possible domestic” at appellant’s home, where they heard a woman screaming and found a meat cleaver on the living room floor. On December 27, 2001, appellant was charged with one count of interference with a 911 call, gross misdemeanor, under Minn. Stat. § 609.78, subd. 2 (2000); one count of domestic assault, gross misdemeanor, under Minn. Stat. § 609.2242, subd. 2 (2000); and one count of disorderly conduct, misdemeanor, under Minn. Stat. § 609.72 (2000).

Appellant appeared for a bench trial on February 11 and 12, 2002. The trial court found appellant guilty of interfering with a 911 call and domestic assault and subsequently sentenced appellant to concurrent terms of 365 days in the workhouse and a $200 fine. The trial court stayed execution of 245 days and placed appellant on 3 years’ probation. Appellant also received 90 days in the workhouse for the disorderly-conduct charge, but he has not challenged this sentence on appeal. Appellant moved for resentencing. Without a hearing, the trial court denied appellant’s motion by order dated April 16, 2002.

On a previous appeal to this court, appellant challenged the concurrent sentences, arguing that the two gross-misdemeanor convictions arose out of the same behavioral incident. In an April 1, 2003 opinion, this court affirmed the gross-misdemeanor convictions but remanded with instructions to vacate one of the two sentences. See State v. Kebaso, No. C1-02-596 (Minn. App. Apr. 1, 2003). In addition, because the trial court failed to make factual findings in compliance with Minn. R. Crim. P. 26.01, this court remanded for specific written findings of the essential facts supporting appellant’s gross-misdemeanor convictions.

Appellant petitioned the supreme court for review of this court’s April 2003 opinion. While the petition was pending, the trial court issued its findings of fact in support of the convictions but did not vacate one of the sentences. The supreme court denied review, and appellant moved to vacate one of the sentences. Appellant also moved for the trial court judge to voluntarily recuse herself, or, in the alternative, for the chief judge to remove the trial court judge for cause pursuant to Minn. R. Crim. P. 26.03, subd. 13(3).

On April 30, 2004, the trial court denied appellant’s motion to vacate one of the sentences. The court reasoned that, “the sentence[s] imposed on the gross misdemeanors were concurrent and reflected one sentence as one behavioral incident. By operation of law only one sentence was imposed.” In addition, the trial court judge found appellant’s accusations of bias to be without merit and denied appellant’s request for her to voluntarily recuse herself. By order dated May 20, 2004, the chief judge denied appellant’s motion to remove the trial court judge for cause. This appeal follows.

D E C I S I O N

Appellant first challenges the chief judge’s denial of his motion to remove the trial court judge for cause pursuant to Minn. R. Crim. P. 26.03, subd. 13(3). A posttrial appeal is not the appropriate way to obtain review of the denial of a motion to remove. State v. Azure, 621 N.W.2d 721, 725 n.3 (Minn. 2001). Appellant’s remedy was to petition for a writ of prohibition. State v. Cermak, 350 N.W.2d 328, 331 (Minn. 1984); see also State v. Poole, 472 N.W.2d 195, 196–97 (Minn. App. 1991) (holding “[p]rohibition is the appropriate remedy when a motion to remove has been denied”). But see Hooper v. State, 680 N.W.2d 89, 93 (Minn. 2004) (addressing appellant’s motion to remove for cause without addressing appellant’s failure to file a writ of prohibition). Appellant’s failure to seek a writ of prohibition following the denial of his motion to remove waived his right to appeal that denial to this court on direct appeal. Therefore, we decline to address the merits of appellant’s argument.

II

Appellant next argues that the trial court erred by failing to vacate one of his sentences on remand. Under Minn. Stat. § 609.035 (2004), “a sentencing court cannot impose multiple sentences (even concurrent sentences) for multiple offenses committed against the same victim in a single behavioral incident.” State v. Herberg, 324 N.W.2d 346, 348 (Minn. 1982). On appellant’s first appeal, this court concluded that appellant’s convictions for domestic assault and interference with a 911 call arose from a single behavioral incident. See State v. Kebaso, No. C1-02-596 (Minn. App. Apr. 1, 2003). On remand, the trial court concluded that appellant actually received and served one sentence by operation of law and, therefore, vacating one of appellant’s sentences was unnecessary. The trial court’s conclusion was contrary to precedent and was in error.

Because appellant has served his full concurrent sentence, the effect of this court’s decision is to vacate one of appellant’s sentences and adjust appellant’s criminal history score. See State v. Jeter, 558 N.W.2d 505, 507 (Minn. App. 1997) (vacating one of Jeter’s sentences upon concluding that two convictions arose from a single behavioral incident). “The policy of [Minn. Stat. § 609.035] encompasses an assumption that the trial court will sentence on the most serious offense.” State v. Alt, 529 N.W.2d 727, 731 (Minn. App. 1995), review denied (Minn. July 20, 1995).

Here, both convictions are for gross misdemeanor offenses at the same severity level under the sentencing guidelines. Moreover, an individual convicted of either offense may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both. See Minn. Stat. § 609.78, subd. 2 (2004); Minn. Stat. § 609.2242, subd. 2 (2004). But the crime of domestic assault is a crime against a person. Interference with a 911 call—although often committed to facilitate a crime against a person—is effectively a crime against state administrative services. Therefore, we conclude that the domestic-assault conviction is the most serious offense and, accordingly, we vacate appellant’s sentence with respect to his interference-with-a-911-call conviction.

Appellant argues that this court should vacate his sentence for domestic assault because that sentence qualifies appellant for deportation and vacating that sentence serves identical rehabilitative and punishment purposes. But this court has held that possible deportation because of immigration status is not a proper consideration in criminal sentencing. State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002). Therefore, this court must disregard appellant’s arguments with respect to the collateral consequences of his sentence and vacate the less severe sentence.

Affirmed in part, vacated in part.