State v. Brown

433 N.W.2d 433, 1988 Minn. App. LEXIS 1234, 1988 WL 134623
CourtCourt of Appeals of Minnesota
DecidedDecember 20, 1988
DocketNo. C5-88-1890
StatusPublished
Cited by1 cases

This text of 433 N.W.2d 433 (State v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brown, 433 N.W.2d 433, 1988 Minn. App. LEXIS 1234, 1988 WL 134623 (Mich. Ct. App. 1988).

Opinion

OPINION

NIERENGARTEN, Judge.

This is an appeal of a sentence after conviction for second degree assault. The appellant contends his present conviction is not a “second or subsequent offense” involving the use of a firearm and claims he was improperly sentenced to a mandatory minimum five-year prison term. We reverse.

FACTS

Appellant Bradley Brown fired a weapon in a gas station while trying to recover some money which purportedly had been taken from him. Brown was charged with two counts of second degree assault and one count of illegal possession of a firearm as a convicted felon. Brown pleaded guilty to one count of second degree assault.

The sentencing worksheet indicated Brown was convicted of attempted armed robbery in 1984. At the sentencing hearing, the State indicated that a shotgun was found when Brown was arrested for the 1984 offense. The State claimed Brown’s present offense was his second offense involving the use of a firearm and asserted the court was required to impose a mandatory minimum five-year prison sentence under Minn.Stat. § 609.11, subd. 5 (1986). Brown argued his 1984 offense was not specifically listed in the statute which imposes mandatory minimum sentences and claimed the State failed to show that a firearm was used in the 1984 offense. Accordingly, Brown asserted the mandatory minimum three-year sentence is the appropriate sentence.

The district court concluded Brown's offense is a second offense involving the use of a firearm and sentenced Brown to the mandatory minimum five-year sentence. Brown appeals arguing his sentence must be reduced to forty-four months, the presumptive guidelines sentence.

ISSUE

Did the court err by sentencing the appellant to a mandatory minimum five-year sentence under section 609.11, subdivision 5?

ANALYSIS

On appeal of a sentence, the court may review the sentence imposed * * * to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the sentencing court. * * * The court may dismiss or affirm the appeal, vacate or set aside the sentence imposed * * * and direct entry of an appropriate sentence or order further proceedings to be had as the court may direct.

Minn.R.Crim.P. 28.05, subd. 2.

Section 609.11 establishes mandatory minimum sentences for certain offenses which are committed with the use of firearms.

Any defendant convicted of an offense listed in subdivision 9 in which the defendant or an accomplice, at the time of the offense, used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm, shall be committed to the commissioner of corrections for a mandatory minimum term of imprisonment of not less than three years, nor more than the maximum sentence provided by law. Any defendant [435]*435convicted of a second or subsequent offense in which the defendant or an accomplice, at the time of the offense, used a firearm shall be committed to the commissioner of corrections for a mandatory minimum term of imprisonment of not less than five years, nor more than the maximum sentence provided by law.

Minn.Stat. § 609.11, subd. 5 (1986). Second degree assault is an offense listed in subdivision 9. See id. § 609.11, subd. 9. Consequently, Brown must be sentenced to a mandatory minimum five-year sentence if any of his prior offenses included the use of a firearm and his current offense constitutes a “second or subsequent offense” within the meaning of the criminal code.

Brown claims he was convicted in 1984 of conspiracy to commit armed robbery rather than attempted armed robbery as indicated in the sentencing worksheet. Brown asserts conspiracy crimes are not included among the offenses listed in section 609.11, subdivision 9 for which mandatory minimum sentences are imposed, and therefore argues his 1984 conviction cannot be considered for the purposes of establishing his present offense as a “second or subsequent offense” within the meaning of section 609.11, subdivision 5. We agree.

The statutory definition of “second or subsequent offense” limits the circumstances under which mandatory minimum five-year-sentences must be imposed.

“Second or subsequent violation” or “second or subsequent offense” means that prior to the commission of the violation or offense, the actor has been adjudicated guilty of a specified similar violation or offense.

Minn.Stat. § 609.02, subd. 11 (1986) (emphasis added).

Prior decisions dealing with enhanced sentences for “second or subsequent offenses” involved cases in which both present offenses and prior offenses were included in the list of offenses for which minimum sentences must be imposed. See State v. Mallory, 329 N.W.2d 60 (Minn.1983) (burglary and aggravated robbery; prior conviction for aggravated robbery); State v. Yant, 376 N.W.2d 487 (Minn.Ct. App.1985), pet. for rev. denied (Minn. Jan. 17, 1986) (two counts of second degree assault arose from a single incident); see also State v. Wallace, 327 N.W.2d 85 (Minn.1982) (attempted first degree murder and criminal sexual conduct; prior conviction for aggravated robbery); State v. Montjoy, 354 N.W.2d 567 (Minn.Ct.App.1984), aff'd, 366 N.W.2d 103 (Minn.1985) (aggravated robbery and kidnapping; prior convictions for aggravated robbery). Language in a 1984 supreme court decision suggests a current offense is not a “second or subsequent offense” unless the prior offense also was an offense listed in section 609.11, subdivision 9. See State v. Higginbotham, 348 N.W.2d 327, 329 (Minn.1984) (the defendant was subject to a minimum five-year prison term under Minn.Stat. § 609.11, subd. 5, “this being his second conviction of one of the offenses listed in subdivision 9 while armed with a firearm”).

Under section 609.02, subdivision 11, a defendant’s present offense is a “second or subsequent offense” if the defendant previously “has been adjudicated guilty of a specified similar violation or offense.” See Minn.Stat. § 609.02, subd. 11 (emphasis added). The terms “specified” and “similar” appear to be at variance with each other. Arguably, the term “similar” suggests the prior offense need not be one of the offenses specified in subdivision 9, but only need be a similar offense in which a firearm was used. However, the legislature’s use of the term “specified” indicates the prior offense must be one of the applicable offenses listed in section 609.11, subdivision 9 before the present offense constitutes a “second or subsequent offense” under subdivision 5. Cf. State v. Kornexl, 351 N.W.2d 26, 28 (Minn.Ct.App.1984) (the definition of “second or subsequent offense” “allow[s] the underlying statute to define the type of offense or violation and the sanction that will result”); Higginbotham,

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Bluebook (online)
433 N.W.2d 433, 1988 Minn. App. LEXIS 1234, 1988 WL 134623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-minnctapp-1988.