No Batson Error; Trial Court Need Not Use A Zero Criminal History Score When Sentencing a Felony Consecutively to a Gross Misdemeanor.

State v. Rivers, Minn.Ct.App., 8/17/10.  Mr. Rivers requested and received a continuance on his girlfriend’s order for protection application, apparently so that right after court he could go over to the girlfriend’s apartment and assault her as she was holding their one year old daughter.  The state charged him with two counts of first degree burglary, felony domestic assault, violation of an order for protection, assault in the third degree and gross misdemeanor child endangerment.

Mr. Rivers is Black; the prosecutor struck the one and only minority member of the jury pool, which Mr. Rivers challenged under Batson v. Kentucky, 476 U.S. 79 (1986).  Minnesota has long held that it will reverse the trial court’s determination of a Batson challenge only if that determination is clearly erroneous.  State v. Pendleton, 725 N.W.2d 717 (Minn. 2007).  If memory serves, Minnesota appellate courts have reversed maybe one or two of uncountable Batson errors presented to them.  Suffice it to say that once again the appellate court upholds the trial court’s determination that the prosecutor’s strike did not violate  Batson.

The other issue in the case is a sentencing issue.  The jury convicted Mr. Rivers of everything, including the gross misdemeanor.  Without explanation, the trial court sentenced Mr. Rivers first on the gross misdemeanor, then on the felony first degree burglary.  The trial court sentenced Mr. Rivers to a consecutive sentence on the felony burglary at the criminal history box of two.  Mr. Rivers complained that the trial court should have used a criminal history score of zero, because that’s the rule for sentencing permissive consecutive felony sentences.  The appellate court rejects this argument.

First problem is that the Guidelines don’t care how the trial court sentences gross misdemeanors; they only care about felony sentences so the Guidelines don’t apply.  Second problem, even if somehow the Guidelines did apply, they don’t authorize permissive consecutive sentences for crimes against separate victims;  all of those rules are from case law.  Because the Guidelines don’t apply, then the trial court could not have abused its discretion by failing to follow the Guidelines rule to use a zero history score when sentencing permissively!

Mr. Rivers has filed for discretionary review in the Supreme Court.