This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1651

 

State of Minnesota,

Respondent,

 

vs.

 

Andrew Thomas Evans,

Appellant.

 

Filed December 20, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Ramsey County District Court

File No. K4-03-4230

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

Richard J. Coleman, 295 Marie Avenue East, West St. Paul, MN 55118 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            In this sentencing appeal, appellant contends that he was indicted because of prosecutorial vindictiveness and that he was entitled to a downward departure from the sentencing guidelines.  Because appellant has failed to show the requisite vindictiveness and because the district court did not abuse its discretion in denying appellant’s departure motion, we affirm.

FACTS

            Andrew Hegranes arranged to meet three men from North Dakota ostensibly to sell marijuana to them.  But he really planned to rob them of the money they would bring for the purchase, and he enlisted the aid of Hasaan Scott and appellant Andrew Evans.

            Scott was to drive the car carrying Hegranes and Evans.  Evans was to bring a shotgun so as to intimidate and frighten the robbery victims.  In preparation for his role, Evans loaded a shotgun and put on gloves so that his fingerprints would not be on it if he had to discard it.

            At the meeting place, Scott positioned his car so as to block the victims’ car.  Hegranes got out and, with his 9-mm pistol, began shooting at the victims.  The shots killed one and wounded another.  This occurred before Evans could get out of the car and take his planned position with the shotgun, but he was able to point the gun at the victims’ car.

            After the shootings, Scott contacted the police, admitted his participation, and implicated Hegranes and Evans.  By complaints, the state charged each with one count of second-degree murder and two counts of second-degree assault.

            The state agreed to enter a plea agreement with the three men that would allow each to avoid a possible prosecution for first-degree murder, but pleas had to be entered before a particular deadline or the state would seek indictments.

            Hegranes and Scott quickly pleaded guilty to take advantage of the state’s offer.  Evans declined to do so.  The district court sentenced Hegranes to 380 months imprisonment and Scott to 90 months, a downward durational departure from the presumptive sentence.  The offer to Evans was for a 180-month prison sentence.

            Because Evans did not accept the state’s offer, the state presented the matter to a grand jury and obtained an indictment against him for first-degree murder, second-degree murder, and two counts of attempted first-degree murder.  Thereafter, the state offered to allow Evans to plead guilty to the original charge in the complaint and to recommend a sentence of 319 months in prison.  Evans rejected the offer, but ultimately pleaded guilty to second-degree murder and two counts of attempted first-degree murder in return for the dismissal of the first-degree murder charge.  He then moved for a downward dispositional departure, and he also argued for a downward durational departure.  The presumptive sentence was 326 months, with a discretionary range of 319 months to 333 months.

            The district court rejected the state’s motion to sentence one of the offenses consecutively to the other two and Evans’s motion for downward departures, and the court imposed a 319-month executed sentence.  It is from that sentence that Evans appeals.

D E C I S I ON

l.          Prosecutorial Vindictiveness

Evans’s first argument on appeal is that his sentence was the product of prosecutorial vindictiveness that deprived him of a plea bargain commensurate with his culpability and with that of a similarly situated codefendant and that violated his constitutional guarantee of equal protection of the laws.

A “prosecutor’s decision whom to prosecute and what charge to file is a discretionary matter which is not subject to judicial review absent proof by defendant of deliberate discrimination based on some unjustifiable standard such as race, sex, or religion.”  State v. Herme, 298 N.W.2d 454, 455 (Minn. 1980) (citing Bordenkircher v. Hayes, 434 U.S. 357, 364-65, 98 S. Ct. 663, 668-69 (1978)).  The appellant has the burden of proving actual prosecutorial vindictiveness.  State v. Pattee, 538 N.W.2d 126, 133 (Minn. 1995).  Thus, our review is limited to determining whether the record shows that Evans has demonstrated that the state’s motivation for seeking an indictment against him was premised on an unjustifiable standard.  Absent such motivation, it is permissible to present a criminal defendant with more severe charges to entice him to accept a plea bargain with less severe charges.  Bordenkircher, 434 U.S. at 363-64, 98 S. Ct. at 668.  It is also permissible for the state to carry out its threat of more severe charges if the defendant rejects the offer.  Id.at 364, 98 S. Ct. at 668.

As evidence of prosecutorial vindictiveness, Evans cites the disparities in the plea agreements the state offered to the respective codefendants; the “acerbic tone” of a prosecutor’s memorandum in opposition to a continuance of Evans’s sentencing; the threat to seek an indictment if Evans did not accept the state’s plea offer; the state’s refusal to allow Evans to testify before the grand jury after the state had invited him to do so; the county attorney’s televised statement that Evans was guilty of the charges in the indictment; the brief time Evans was given to accept the state’s initial plea agreement offer; and the alleged untimeliness of a motion for a rule 20 competency evaluation.

But Evans presents no evidence whatsoever that the state’s motivation for any of its allegedly vindictive conduct was the employment of an unjustifiable standard as described in Herme and Bodenkircher.  The state’s argument is that it originally offered a favorable sentence recommendation to entice Evans to testify against the “shooter,” but when the “shooter” pleaded guilty, there was no further reason “to extend an offer that generous.”  Without proof of the requisite unjustifiable standard or basis, Evans’s claim of prosecutorial vindictiveness fails.

2.         Downward Sentencing Departure

Evans argues that substantial and compelling circumstances exist for a downward departure from the sentencing guidelines because he did not develop the criminal plan, drive the car, or shoot either of the victims.  A downward departure from a presumptive sentence is reviewed for an abuse of discretion.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  A district court may depart downward from the guidelines only if “substantial and compelling circumstances” exist.  Minn. Sent. Guidelines II.D.  See also State v. Best, 449 N.W.2d 426, 427 (Minn. 1989) (holding that “the trial court has broad discretion to depart only ifaggravating or mitigating circumstances are present”).  The presence of a mitigating factor does not require departing from the presumptive sentence.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  It is only a “rare case” which warrants reversal of the district court’s refusal to depart from the sentencing guidelines.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  An explanation is not required when the district court considers reasons for a departure but instead imposes the presumptive sentence.  State v. Theisen, 363 N.W.2d 867, 869 (Minn. App. 1985), review denied (Minn. May 18, 1985).

Evans’s presumptive sentence for second-degree murder was 326 months, with a discretionary range between 319 and 333 months.  The district court reviewed Evans’s departure memorandum and heard the arguments of his attorney and the prosecutor respecting a downward departure.  Four doctors testified concerning Evans’s mental state, behavioral disorders, and substance-abuse issues.  The state introduced testimony regarding Evans’s criminal history.  The presentence investigation report recommended the presumptive sentence.  The district court considered all of the evidence pertinent to Evans’s departure motion.  We find no basis for concluding that the district court was compelled to exercise its discretion in favor of a downward departure.

Evans further argues that the district court should have imposed a sentence similar to Scott’s “for the same offense based upon the same behavior.”  “Equity in sentencing requires that convicted felons similar with respect to relevant sentencing criteria ought to receive similar sentences.”  Minn. Sent. Guidelines I.  “Yet, fairness and uniformity [in sentencing] involves more than comparing the sentences of principal and accomplice . . . .  A defendant is not entitled to a reduction in his sentence merely because a co-defendant or accomplice has been convicted of a lesser offense or received a lesser sentence.”  State v. Starnes, 396 N.W.2d 676, 681 (Minn. App. 1986). 

Evans’s argument rests on the assumption that he and Scott were equally culpable.  They were not.  Scott drove the car, while Evans aimed a loaded shotgun at the victims.  Unlike Evans, Scott came forward, assisted the police, and agreed to testify against the other defendants.  Scott did not have a criminal history, but Evans had a criminal record and a criminal-history score of one.  Scott was ultimately charged with and pleaded guilty to lesser crimes than Evans.  Because Evans received the appropriate presumptive sentence for the crimes to which he pleaded guilty, he “cannot complain about diminished sentences received” by others.  State v. Bobo, 414 N.W.2d 490, 494 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987). 

            Affirmed.