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State v. Walker

Court of Appeals of Minnesota

May 14, 2018

State of Minnesota, Respondent,
v.
Ohagi Charles Walker, Appellant.

          Hennepin County District Court File No. 27-CR-16-16756

          Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant Public Defender, (for appellant)

          Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Kirk, Judge.

         SYLLABUS

         A "merged" or "combined" conviction or sentence is not a permissible disposition under Minnesota law.

          OPINION

          KIRK, Judge

         Appellant challenges the disposition of his criminal case, arguing that the district court erred by entering a judgment of conviction on both the charged offense and the charged lesser-included offense, and that the district court abused its discretion by denying his motion for a downward dispositional departure. We affirm in part, reverse in part, and remand.

         FACTS

         On June 23, 2016, appellant Ohagi Charles Walker was charged with two counts of illegal possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(2) (Supp. 2015), with count 1 alleging possession in furtherance of gang activity, with reference to Minn. Stat. § 609.229, subd. 3(a) (2014). Both charges related to conduct alleged to have occurred on or between March 7, 2016, and May 4, 2016. On February 15, 2017, appellant pleaded guilty to both counts in a "straight plea" to the district court. The presumptive disposition was a commitment for 72 months, of which 60 months was the statutory-minimum sentence under Minn. Stat. § 609.11, subd. 5(b) (Supp. 2015), for the underlying firearm-possession conviction, with an additional 12 months added for possession in furtherance of gang-related activity under Minn. Sent. Guidelines 2.G.10 (Supp. 2015). See also Minn. Stat. § 609.229, subd. 4(a) (2014).

         During his plea hearing, appellant admitted that he possessed a pistol in Hennepin County on or about March 7, 2016, so that he could benefit or further the efforts of a criminal gang, and that he understood at the time that he was prohibited from possessing firearms. The district court accepted appellant's plea and found him guilty on both counts.

         At sentencing, appellant's attorney argued for a downward dispositional departure to probation because appellant accepted responsibility by pleading guilty and because appellant's letter to the district court demonstrated maturity, understanding, regret, and a hope to better himself in the future. Appellant's attorney also characterized these offenses as less serious than a typical gun-possession offense and noted that appellant has had a difficult past, but has supportive family members and friends.

         The state argued for an executed 72-month sentence, arguing that there were not substantial and compelling reasons to depart and that appellant is not amenable to probation. To support its position, the state emphasized appellant's lengthy criminal history, past failure on probation, continued association with known gang members, and self-appointment as a leader of gang rivalry. The state noted its expectation that count 2 would "merge" and that appellant would only be sentenced on count 1.

         The district court noted that it reviewed the presentence investigation, which recommended the 72-month executed sentence; a series of letters from appellant's friends and family members; and appellant's letter. The district court also heard statements from appellant, his mother, and his sister. The district court said that it could not find that appellant was particularly amenable to probation because he had not been successful on probation in the past. The district court concluded that there were not substantial and compelling circumstances to place appellant on probation, thereby denying appellant's request ...


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