Court Approves Use of Overlapping Facts to Support Sentencing Departure.

State v. Edwards, Minn.S.Ct., 11/19/2009.  A judge convicted Mr. Edwards of first degree assault of Makara Din; and three counts of drive by shooting, in which three other individuals sustained gunshot injuries.  The state asked for an upward departure on the assault conviction,which the trial court agreed to do:

Defendant’s conduct in assaulting Makara Din was significantly more serious than that typically involved in the commission of the crime of first degree assault, in that Defendant fired seven times at or toward a group of nine people in the immediate area, exposing all of them to injury or death, and, in addition to Makara Din, seriously injuring Khaosan Ruos. Defendant’s conduct was particularly serious and represented a greater than normal danger to the safety of other people.

Mr. Johnson appealed the upward departure.  The appellate court first set out the rules under which it thought a departure could be imposed.

First, the departure can’t be based on facts necessary to prove the offense being sentenced.  State v. Blanche, 696 N.W.2d 351 (Minn. 2005).  This rule is not in play here.

Second, the departure can’t be based on facts that the legislature contemplated when it set the punishment for the offense being sentenced.  State v. Stanke, 764 N.W.2d 824, 827-28 (Minn. 2009).  To permit a departure in this instance amounts to double punishment.  The best example, perhaps is State v. Thao, 649 N.W.2d 414 (Minn. 2002).  Mr. Thao fired six bullets into a crowd of seven people, killing one of them.  A jury convicted him of second degree murder by drive by shooting.  Because the legislature contemplated the random firing of multiple shots into a group of people in establishing the punishment, a departure could not be based on the risk to bystanders.  This rule is in play here.

Third, there are limits on the availability of facts underlying a separate offense that are available to support a departure.  This rule is also in play here and it has subparts.  First, facts underlying an uncharged separate incident are not available to support a departure.  Second, facts underlying a separate conviction that arises out of a single behavioral incident are available to support a departure so long as those facts show that a defendant committed the offense being sentenced in a particularly serious way.  State v. Ford, 529 N.W. 2d 214 (Minn. 1995).  These underlying facts must tie in to the offense being sentenced to meet this requirement.

Back to the departure.  First, Mr. Edwards argued that facts underlying another conviction – the drive by shootings – may never be used as a basis for an upward departure.  The appellate court disagrees with this assertion, instead saying that these “overlapping” facts may properly be used to depart, so long as those facts show that a defendant committed the offense being sentenced in a particularly serious way. 

Next, Mr. Edwards argued that the legislature contemplated the risk associated with firing multiple bullets into a group of people when it established the punishment for first degree assault.  The appellate court rejects this assertion as well.  Drive by shooting is not an included offense of assault and thus the legislature could not possible have been contemplating it when it set the punishment for assault.  There were also multiple victims so Mr. Edwards’ culpability is greater than if he had harmed only one victim.  Finally, the appellate court rejects an argument based on charge manipulation, e.g., State v. Jackson, 749 N.W.2d 353 (Minn. 2008).

Justice Page dissented, joined by Justices Meyer and Paul Anderson.