State v. Cerceo

354 N.W.2d 823 (1984)

STATE of Minnesota, Respondent, v. Nicholas CERCEO, Appellant.

No. C9-83-609.

Supreme Court of Minnesota.

September 21, 1984.

*824 C. Paul Jones, Public Defender, Michael F. Cromett, Asst. Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey III, Atty. Gen., St. Paul, David C. Johnson, Koochiching County Atty., International Falls, for respondent.

Considered and decided by the court en banc without oral argument.

AMDAHL, Chief Justice.

Defendant was found guilty by a district court jury of assault with a dangerous weapon, Minn.Stat. § 609.222 (1982). The presumptive sentence at the time was an executed term of 54 months in prison pursuant to section 609.11 and Minnesota Sentencing Guidelines and Commentary II.E. (1982). Defense counsel urged the trial court to sentence him without regard to section 609.11, State v. Olson, 325 N.W.2d 13 (Minn.1982), but the court refused and imposed the presumptive sentence. On this appeal, defendant seeks (1) an outright reversal of his conviction or a modification of it to misdemeanor assault on the ground that the state failed to prove him guilty of assault in the second degree, or (2) a modification of his sentence because the trial court erred in refusing to sentence him without regard to section 609.11. There is no merit to either contention. Defendant's conviction was based on evidence that on November 26, 1982, he entered the Northome branch office of Koochiching County Family Services and, while armed with a gun, told a social worker there that he came to the office to kill him and brought along the gun to use to do it. This evidence was sufficient to support the conviction. The decision whether to sentence without regard to the mandatory minimum term law is a discretionary decision. The trial court did not abuse its discretion in refusing to either place defendant on probation or impose a shorter term. State v. Johnson, 342 N.W.2d 635 (Minn.1984); State v. Frost, 342 N.W.2d 317 (Minn.1983); State v. Abeyta, 336 N.W.2d 264 (Minn. 1983).

Affirmed.