STATE, CTY. OF HENNEPIN v. McClay, 81-866

• Decision Date: 06 October 1981
• Docket Number: No. 81-866,81-867.,81-866
• Citation: 310 NW 2d 683
• Parties: STATE of Minnesota, COUNTY OF HENNEPIN, Respondent, v. Donald E. McCLAY, Appellant. and STATE of Minnesota, COUNTY OF HENNEPIN, Respondent, v. John SCRUGGS, Appellant.
• Court: Minnesota Supreme Court

310 N.W.2d 683 (1981)

STATE of Minnesota, COUNTY OF HENNEPIN, Respondent, v. Donald E. McCLAY, Appellant. and STATE of Minnesota, COUNTY OF HENNEPIN, Respondent, v. John SCRUGGS, Appellant.

Nos. 81-866, 81-867.

Supreme Court of Minnesota.

October 6, 1981.

Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Minneapolis, Anne Peek, Law Clerk, Minneapolis, for respondent.

Wm. R. Kennedy, Hennepin County Public Defender, David Knutson, Asst. Public Defender, Minneapolis, for appellants.

Considered and decided by the court en banc without oral argument.

SHERAN, Chief Justice.

Upon our own motion we have consolidated two separate but related sentencing appeals by codefendants, each convicted on a guilty plea of aggravated robbery and each sentenced by the same judge to a longer prison term than provided by the Sentencing Guidelines Commission. Aggravated robbery is a severity level VII offense. The presumptive sentence for Scruggs, who had a criminal history score of two, was 41 months; the court sentenced him to 80 months. The presumptive sentence for McClay, who appeared at the time to have a criminal history score of three, was determined to be 49 months; the court, stating that it was doubling that, sentenced him not to 98 months but 108 months. The state now concedes that the criminal history score for McClay should have been two, the same as that for Scruggs, and that McClay's sentence should be limited to 82 months, double the presumptive sentence of 41 months. Both defendants, represented by the same attorney on appeal, claim that departure was unjustified. The state disagrees. We hold that departure was justified and, after modifying McClay's sentence to 80 months, the same as Scruggs, we affirm.

The robbery occurred on the morning of February 25, 1981, at the First Minneapolis Bank on Broadway and Emerson in North Minneapolis. McClay, holding a sawed-off shotgun, kept watch while Scruggs, armed with a revolver, ordered the tellers to fill some pillow cases with money, over $20,000 in all. As they were leaving, McClay grabbed the receptionist, Patricia Barnett, who is 5 feet tall and weighs only 95 pounds, and forced her to accompany them to the corner of the block where he released her. They then fled via the alley between Emerson and Dupont to the area of 15th, where they began throwing some items into a garbage can. Daniel Dobbert, out for a walk with his 3-year-old daughter, confronted them, eventually retreating into a garage when Scruggs pulled out his revolver. Scruggs apparently fired the revolver two times. He later claimed this was an accident. The bullets were never found, a fact he claims supports his contention that he never fired at the Dobberts. Scruggs and McClay were arrested a short time later but not before Scruggs pointed the gun at a man named Jones and at a police officer named Winther. Both men thereafter confessed their guilt in the robbery.

Both were charged with aggravated robbery, kidnapping, and possession of a sawed-off shotgun; Scruggs was also charged with three counts of assault in the second degree (one each for assaulting Dobbert, Jones, and Winther).

The plea agreement which defendants'...