Guns & Sentencing Calculations

State v. Williams, MN.Ct.App.,  2008 WL 4908201 (11/18//2008).

As B.H. got to his mom's truck, "Little Cuz" pointed a gun at him, demanded that he empty his pockets, then shot him in the butt.  "Little Cuz" turned out to be Mr. Williams, whom the police easily found and arrested a short while later.  Mr. Williams was not supposed to be in possession of firearms, so the state charged him with this offense, along with two counts of attempted first degree aggravated robbery - B.H.'s mom was in the truck - first degree assault and attempted second degree assault.  The state made various charging amendments to the Complaint; a jury eventually convicted Mr. Williams of just about everything.  The trial court, however, sentenced only on the ineligible person/firearm and first degree assault.

The trial court used the Hernandez method by which to sentence Mr. Williams to a sixty month sentence on the ineligible person/firearm count and then to increase his criminal history score before sentencing on the assault.  This bumped the assault sentence from 146 to 160 months (high end of the box).  The trial court did sentence concurrently.  On appeal, Mr. Williams complained, among other complaints, about the use of the Hernandez calculation method.  (Hernandez permits this bumping when a court sentences a defendant on day for multiple offenses that were not part of a single behavioral incident, that occurred at different time, and involved different victims.  State v. Hernandez, 311 N.W.2d 478 (Minn. 1981).)

No one disputed that Mr. Williams' actions were a single behavioral incident.  Minn.Stat. 609.035, S. 1 generally prohibits multiple sentences in such cases, but there's an exception for felon in possession charges, which the defense did not challenge.  It was the sentencing bump that got their ire.  The appellate court has twice, (sort of), before answered this question, but not with the same answer. 

In the first instance, the appellate court said it was okay to employ Hernandez.  A jury convicted a Mr. Bergren of ineligible person/firearm and burglary.  The trial court used the Hernandez bump to increase his history score on the second sentence.  The appellate court said that this was okay because the legislature intended to treat firearms offenses differently from other offenses that are part of the same course of conduct.  State v. Bergren, 2001 WL 378978 (Minn.Ct.App. 2001). 

In the second instance, the appellate court said, no, it's not.  State v. Wood, 2007 WL 1053003 (Minn.Ct.App. 2007).  A jury convicted Mr. Wood of ineligible person/firearm and three counts of second degree assault, same behavioral incident.  Because the state conceded the issue, the appellate court went along with it.

Not this time, and published to boot.  The court drills into the commentary to the Guidelines to support this result.  Guidelines section II.B.107 (originally II.B.102) states the Hernandez rule.  Comments to this application section, however, remind readers of instances when the Hernandez bump cannot be employed even though a statute authorizes multiple sentences in a single behavioral incident situation:   burglary and criminal sexual conduct, single behavioral incident, M.S. 609.585; kidnapping and some other offense, single behavior incident, M.S. 609.251; certain methamphetamine offenses, M.S. 152.137.  The Guidelines Commission, sadly, has not inserted a comment about ineligible person/firearms & something else convictions and so the Hernandez bump is okay.

Well, it's never too late, so get those emails and phone calls to the Commission going.  After all, we only need a comment, not an actual, binding rule.  State v. Rouland, 685 N.W.2d 706 (Minn.Ct.App. 2004).