Opinion
No. CX-98-1983.
Filed February 23, 1999.
Appeal from the District Court, Olmsted County, File No. K4-97-3725.
Phyllis J. Kirwin, (for appellant)
Michael A. Hatch, Attorney General, and
Raymond F. Schmitz, Olmsted County Attorney, James S. Martinson, Assistant County Attorney, (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant James Kent Johnson claims the trial court abused its discretion by imposing consecutive executed sentences of 48 months each on his first-degree burglary and first-degree aggravated robbery convictions under Minn. Stat. §§ 609.582, subd. 1(c), 609.245, subd. 1 (1998). Because imposition of consecutive sentences does not exaggerate the criminality of appellant's conduct, we affirm.
DECISION
Under the Minnesota Sentencing Guidelines, the court may impose a consecutive sentence if there are "[m]ultiple current felony convictions for crimes against persons." Minn. Sent. Guidelines II.F. The decision to impose a consecutive sentence is discretionary and will not be reversed absent a clear abuse of discretion. State v. Willis , 559 N.W.2d 693, 701 (Minn. 1997). "In deciding whether [a] sentence exaggerates [a] defendant's criminality, the court is guided by sentences received by other offenders." Id. (citation omitted).
Appellant concedes that the trial court had the authority to order a consecutive sentence but claims it should not have done so under the facts of this case. Appellant argues that in each of the crimes he was less of an active participant than his accomplices because he was not the weapon holder. It is undisputed, however, that appellant assaulted the victims in both crimes. In the burglary, only appellant hit the victim and was physically involved in an altercation with the victim to the extent that appellant lost his hat and watch during their scuffle. According to the robbery victim, after he was first assaulted by one of appellant's accomplices, appellant "jumped" him, rammed his head into the store register counter, and kicked him numerous times. Thus, appellant's conduct was as serious as his accomplices' conduct. We conclude the sentence does not exaggerate the criminality of appellant's conduct. See State v. Smith , 541 N.W.2d 584, 590 (Minn. 1996) (affirming consecutive sentencing on, among others, aggravated robbery conviction where victim was beaten, punched, and kicked); State v. Williams , 337 N.W.2d 387, 390 (Minn. 1983) (affirming consecutive sentencing where defendant's conduct was at least as serious as his accomplices'). Further, contrary to appellant's claim, his youth and lack of criminal history are taken into account in sentencing and do not independently bear on the criminality of his conduct.
Appellant also contends that language included in the sentencing order in which the court "determines departure from the presumptive disposition is not appropriate," arguably demonstrates that the trial court assumed a consecutive sentence was presumptive under the guidelines. Other language of the order makes it clear, however, that the court was referring only to each party's request for a durational departure. First, the language immediately followed language referring to appellant's 48-month term of imprisonment. Second, had the language pertained to consecutive sentencing, it would have been superfluous as to the first conviction. Thus, this language was irrelevant to the court's decision to sentence consecutively.