State of Minnesota, Respondent, vs. Francisco Garcia, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-647

 

State of Minnesota,

Respondent,

 

vs.

 

Francisco Garcia,

Appellant.

 

Filed January 13, 2004

Affirmed
Klaphake, Judge

 

Clay County District Court

File No. K3-02-1956

 

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

 

Lisa Borgen, Clay County Attorney, Courthouse, 807 N. 11th Street, Moorhead, MN  56560 (for respondent)

 

John M. Stuart, State Public Defender, Benjamin Butler, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Following conduct in which he entered a place of business, threatened the owner, and demanded money, appellant Francisco Garcia was charged with seven felony counts, including first-degree aggravated robbery and burglary.  Appellant pleaded guilty to second-degree assault and the state dismissed the remaining counts.  See Minn. Stat. § 609.222, subd. 1 (2002) (second-degree assault).  Appellant was sentenced to 21 months in prison, to be served consecutively to a 58-month sentence that had been imposed for an unrelated aggravated robbery offense that occurred in 1999.  See State v. Garcia, 670 N.W.2d 297 (Minn. App. 2003) (involving appeal from sentence imposed for unrelated aggravated robbery offense, which occurred in 1999, and rejecting appellant's demand for jail credit for time served in juvenile custody under Minn. Stat. § 60B.130, subd. 5 (2002)), review granted (Minn. Dec. 23, 2003). 

            Appellant challenges the district court's decision to impose a permissive consecutive sentence and argues that the resulting sentence of 79 months unfairly exaggerates the criminality of his conduct.  The State of Minnesota did not file a brief; therefore, this appeal is determined on its merits.  See Minn. R. Civ. App. P. 142.03.

            Because the imposition of consecutive sentencing does not unfairly exaggerate the criminality of appellant's conduct, we affirm.

D E C I S I O N

            A district court may not impose consecutive sentences if the resulting sentence unfairly exaggerates the criminality of the defendant's conduct.  State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998).  "We will not reverse a district court's decision to impose a consecutive sentence unless there has been a clear abuse of discretion."  State v. Neal, 658 N.W.2d 536, 548 (Minn. 2003).

            The guidelines allow imposition of a permissive consecutive sentence in certain cases, including:

            1.         A current felony conviction for a crime against a person may be sentenced consecutively to a prior felony sentence for a crime against a person which has not expired or been discharged; or

            2.         Multiple current felony convictions for crimes against persons may be sentenced consecutively to each other[.]

 

Minn. Sent. Guidelines II.F.

            While appellant acknowledges that the consecutive sentencing here was permissive, he argues that the district court abused its discretion because the resulting sentence of 79 months in prison, "unfairly exaggerates the criminality" of his conduct.  See Hough, 585 N.W.2d at 397.  He further argues that the only act he admitted to and to which he pleaded guilty was gesturing at the victim with a baseball bat in a manner intended to place the victim in fear of immediate harm.  Appellant insists that when this conduct is compared to other second-degree assault cases, the departure constitutes an abuse of discretion.  See, e.g., State v. Patton, 414 N.W.2d 572, 574-75 (Minn. App. 1987) (21-month stayed sentence imposed upon defendant who threatened victim with knife); State v. Lee, 391 N.W.2d 46, 48 (Minn. App. 1986) (34-month prison term imposed on defendant who broke into victims' home and struck them in face), review denied (Minn. Sept. 22, 1986).

            The record shows that appellant has been in and out of juvenile detention facilities and that he committed this offense while on probation for a 1999 aggravated robbery.  See Garcia, 670 N.W.2d at 298.  In September 2000, appellant violated probation when he was arrested for felony possession of stolen property, felony theft, and obstructing legal process.  Id.  The district court found that he violated probation and ordered him to complete a juvenile corrections program.  Id.  Upon completion of the program in September 2001, appellant was released to a foster home placement.  Id. at 298-99.  Appellant absconded from his foster home in March 2002 and remained on the run until he was arrested for the current offense in September 2002.  Id. at 299.

            One day before sentencing on this offense, appellant received a 58-month prison sentence for the 1999 aggravated robbery.  At sentencing on this offense, the state sought a consecutive sentence, arguing that appellant "is not amenable to rehabilitation," that he was "on the run at the time of the commission of these offenses," that he has "never turned himself in," and that he has not cooperated with probation or law enforcement.  The state concluded:

To give a concurrent sentence, . . . when the defendant knew very well that he was looking at a 58 month sentence on his priors, [and to essentially] give him no punishment for the actions that he took . . . [gives him the wrong lesson] . . . in that he knows he's in trouble, he might as well go out and commit additional crimes and not have any punishment for that[.]

 

            Appellant's attorney argued for a concurrent sentence, emphasizing appellant's youth (he was 14 and 17 years old at the time of the 1999 aggravated robbery and the current offense) and the fact that he has spent time in custody, or at least in secured juvenile facilities, and probably will not receive credit for that time.  Appellant's attorney further challenged the assertion that appellant has shown no remorse, and claims that he has been a "model prisoner" over the last several months.  Appellant's attorney finally noted that appellant just turned 18 and is "already going down for a long time."

            The district court commented that appellant "was 18 at the time he committed this offense though," to which his attorney erroneously replied, "Yes."  The court proceeded to sentence appellant to 21 months, stating that second-degree assault with a dangerous weapon is a "crime against a person and a serious crime and basically this is a consecutive sentence."

            Given appellant's history and the facts of this case, we cannot conclude that the district court's imposition of a consecutive sentence unfairly exaggerates the criminality of appellant's conduct.  This offense involved appellant entering the victim's place of business, demanding money from him, and threatening him with a baseball bat before he escaped and ran to a nearby police station for help.  Consecutive sentencing and a more lengthy incarceration do not unfairly exaggerate the criminality of appellant's conduct.  The district court did not abuse its discretion by imposing a 21-month sentence, to be served consecutively to the 58-month sentence on the unrelated aggravated robbery offense.  The court was within its discretion to impose a "more severe sanction" in order to "confine [appellant] for a longer period than under concurrent sentences."  Minn. Sent. Guidelines cmt. II.F.01.

            Finally, appellant argues that, at the very least, the matter should be remanded to the district court to reconsider its sentencing.  Appellant insists that the district court's decision was based on its mistaken assumption that appellant was 18 years old at the time of the offense, when he was actually only 17 years old.  Because our reading of the sentencing transcript convinces us that the district court's decision was based on the seriousness of appellant's conduct and that appellant's age had very little to do with the court's decision, a remand for reconsideration is not necessary.

            The district court's sentencing decision is affirmed.

            Affirmed.