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State v. Alger

Court of Appeals of Minnesota

May 13, 2019

State of Minnesota, Respondent,
v.
James Martin Alger, Sr., Appellant.

          Crow Wing County District Court File No. 18-CR-18-752

          Keith Ellison, Attorney General, St. Paul, Minnesota; and Donald F. Ryan, Crow Wing County Attorney, Brainerd, Minnesota; and Matti R. Adam, Special Assistant Crow Wing County Attorney, Grand Rapids, Minnesota (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant Public Defender, St. Paul, Minnesota (for appellant)

          Considered and decided by Larkin, Presiding Judge; Smith, Tracy M., Judge; and Randall, Judge. [*]

         SYLLABUS

         An offender may receive multiple sentences for violating the no-contact provisions of an order for protection (OFP) with respect to multiple persons protected by the provisions, even if the violations arose out of a single behavioral incident, because each person protected by the no-contact provisions of a n OFP is a victim of the crime of violating those provisions.

          OPINION

          SMITH, TRACY M., JUDGE

         Appellant James Alger Sr. was subject to an OFP prohibiting him from contacting his former girlfriend and their minor child. Pursuant to a plea agreement, Alger was convicted of and sentenced on two counts of violating the OFP-one count for each person protected by the order-after he engaged in prohibited conduct against both of them by going to a hotel where they were staying. In this direct appeal, he argues that his multiple sentences violate Minn. Stat. § 609.035 (2016) because the multiple-victim rule does not apply. We disagree and affirm.

         FACTS

         In early February 2018, K.R.B. sought and received an ex-parte OFP against Alger from the Mille Lacs Band Court of Central Jurisdiction pursuant to 8 Mille Lacs Band Statutes (MLBS) § 406. The order forbade Alger from having contact with either K.R.B. or their minor child. While the ex-parte OFP was in effect, Alger met both K.R.B. and their minor child at a hotel; he testified that he met them in order to help them get a hotel room. He was arrested after police arrived at the hotel for a welfare check.

         The state charged Alger with two counts of felony violation of an OFP.[1] It later amended the complaint, adding two counts of felony stalking. Alger pleaded guilty to two counts of felony violation of an OFP. In exchange, the state dismissed the stalking charges and agreed not to charge Alger for witness tampering or for violating a domestic abuse no contact order that had been issued after the violation of the OFP-offenses that he allegedly committed while he was in custody. The plea agreement called for a 36-month sentence.

         The district court accepted the pleas, adjudicated Alger's guilt on both counts, and sentenced him to 24 months' imprisonment on the first count and 12 months' imprisonment on the second count, to be served consecutively. Alger appeals, arguing that the district court erred by sentencing him to multiple consecutive terms of imprisonment.

         ISSUES

         I. Did the district court err by sentencing Alger on two counts arising from a single behavioral incident in which he violated an order for protection by contacting two ...


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