Blue Earth County District Court File No. 07-CR-12-820.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Ross E. Arneson, Blue Earth County Attorney, Mankato, Minnesota (for respondent).
David W. Merchant, Chief Appellate Public Defender, Erik I. Withall, Assistant Public Defender, St. Paul, Minnesota (for appellant).
Considered and decided by Smith, Presiding Judge; Schellhas, Judge; and Chutich, Judge.
Appellant Alexander Raphael Marxen appeals his sentence, arguing that the district court erred by sentencing him for his second-degree assault conviction before sentencing him for his drive-by-shooting conviction. Because the record does not support the district court's findings, we reverse and remand for resentencing.
On the evening of March 6, 2012, appellant Alexander Marxen, A.H., D.K., and E.B. were driving around Mankato in A.H.'s white minivan. D.K. arranged a meeting with a second group of acquaintances with whom they had an ongoing dispute. When D.K. drove the van past the house where they believed the second group was located, the second group, driving a tan Chevrolet Blazer, began to chase the minivan. Eventually the minivan got away from the Blazer. D.K. then called a third group of friends, driving a yellow BMW, to help them find the Blazer. The groups eventually spotted the Blazer and cornered it, forcing it to stop. Marxen partially exited the minivan, pointed a .22-caliber rifle at the Blazer, and fired one round.
After Marxen fired the gun, the Blazer "peeled away." The minivan, with Marxen as a passenger, and the BMW chased the Blazer into a cul-de-sac and blocked the Blazer's exit. The Blazer's occupants exited the vehicle and ran towards the minivan. Marxen pointed the gun out of the front passenger window at the group approaching the van and fired one round at a man in a white sweatshirt. The man in the white sweatshirt, later identified as P.G., called the police to report the shooting.
Blue Earth County charged Marxen with two counts of first-degree attempted murder, two counts of drive-by shooting, second-degree assault, intentional discharge of a firearm that endangers safety, and reckless discharge of a firearm within a municipality. Marxen moved to dismiss five of the charges for lack of probable cause, but the district court denied his motion.
Marxen pleaded guilty to one drive-by-shooting charge in violation of Minnesota Statutes section 609.66, subdivision 1e(a), (b) (2010), and second-degree assault in violation of Minnesota Statutes section 609.22, subdivision 1 (2010). Under the plea agreement, the county dismissed the remaining five counts.
At the sentencing hearing, the parties agreed that the drive-by shooting should be sentenced before the assault because the drive-by occurred first. The district court disagreed and sentenced Marxen to 36 months for second-degree assault, and then, after applying a criminal history point for his assault ...