Anoka County District Court File No. 02-CR-10-3789
Rodd Tschida, Minneapolis, Minnesota; and Daniel R. Savaloja, Blaine, Minnesota (for appellant).
Lori Swanson, Attorney General, St. Paul, Minnesota; and Anthony C. Palumbo, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka, Minnesota (for respondent).
Considered and decided by Smith, Presiding Judge; Worke, Judge; and Rodenberg, Judge.
The presence of offender-related mitigating factors supporting a downward dispositional departure does not require the district court to stay execution of both sentences when a Minn. Stat. § 609.035 exception to multiple sentences applies.
Appellant challenges the district court's denial of his postconviction-relief petition, arguing that the district court erred by sentencing him to an executed 48-month prison term for first-degree burglary after sentencing him to probation for the greater offense of first-degree assault, and by entering a conviction for second-degree assault. We conclude that the district court did not abuse its discretion in sentencing appellant on the burglary and first-degree-assault convictions, but erred by also entering a conviction for second-degree assault. Therefore, we affirm in part, reverse in part, and remand.
On the morning of May 11, 2010, E.B. was awakened by his wife who told him that a strange man was outside their home. E.B. heard the sound of breaking glass and jumped out of bed. He reached the top of the staircase and saw appellant James Robert Ozzie Wells walking toward him. Wells asked for D.B., E.B.'s son. E.B. replied that he did not know if D.B. was home, and told his wife to call the police. Wells swung a baseball bat at E.B. Wells continued to ask for D.B. as he delivered several blows to E.B. with the bat. E.B. repeatedly responded that he did not know where D.B. was and turned onto his side to protect his pacemaker. Wells hit E.B. 10 or 11 times until D.B. intervened.
When officers arrived, D.B. reported that Wells is the father of his on-again-off-again girlfriend. Wells told police officers that he intended to assault D.B. after hearing that D.B. sexually assaulted his daughter. E.B. was taken to the hospital in critical condition. E.B. survived, but suffered broken ribs, and surgeons removed his ruptured spleen.
The jury found Wells guilty of first-degree assault, second-degree assault, and first-degree burglary. Wells moved for a dispositional departure in sentencing. The presentence investigation recommended that Wells receive the presumptive guidelines' sentences—48 months in prison for the first-degree-burglary conviction and 86 months in prison for the first-degree-assault conviction. E.B. submitted a victim-impact statement, indicating that Wells failed to display remorse and appeared to be punishing him during the assault. E.B. feared what would have happened if his son had not intervened and expressed concern about whether Wells would have attacked his wife had he not been home. E.B. stated that his family lives in fear and that his health is poor.
On May 2, 2012, the district court held a sentencing hearing. Wells's attorney argued that Wells met the criteria for a dispositional departure because of his age, lack of a criminal record, and support of his family and community. Wells's attorney argued that Wells accepted responsibility for his actions, admitted to a court psychologist that what he did was not right, and had stated that: "If I had gotten [D.B.] I would have been at peace, " which, his attorney argued, showed Wells's remorse for injuring the unintended victim. Wells's attorney also argued that a dispositional departure was justified because E.B. did not sustain a "particularly lasting or debilitating" injury. Finally, Wells's attorney argued that Wells was not a danger to society because he was unlikely to reoffend.
The district court stated that it had given significant consideration to Wells's sentence because he was an otherwise-law-abiding person who "without any legal excuse at all, committed an absolutely horrendous crime." To Wells's attorney's description of E.B.'s injury as not "lasting or debilitating, " the district court responded: "to argue . . . that this is not a lasting, debilitating injury . . . is offensive. . . . There is no question that what [Wells] did in demolishing his spleen is going to cause life-long problems." The district court determined that ...