State v. Montermini, No. A11–1543.

Decision Date13 August 2012
Docket NumberNo. A11–1543.
Citation819 N.W.2d 447
PartiesSTATE of Minnesota, Respondent, v. Fabrizio MONTERMINI, Appellant.
CourtMinnesota Court of Appeals


Syllabus by the Court

A criminal defendant who pleads guilty to multiple offenses under a plea agreement in which the defendant acknowledges that the agreement will be rescinded if the plea is withdrawn on appeal and the defendant may be reprosecuted as if there had been no plea of guilty and no plea agreement, waives the constitutional protection against double jeopardy as to all charged offenses by successfully appealing one or more of the guilty pleas.

Lori Swanson, Attorney General, John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, MN, for respondent.

Earl P. Gray, St. Paul, MN; and Mark D. Nyvold, Fridley, MN, for appellant.

Considered and decided by SCHELLHAS, Presiding Judge; KALITOWSKI, Judge; and CHUTICH, Judge.



Appellant challenges his convictions of third-degree depraved-mind murder, criminal vehicular homicide, criminal vehicular operation resulting in substantial bodily harm, and five counts of criminal vehicular operation resulting in bodily harm, arguing that (1) the district court erred by vacating his earlier guilty pleas, convictions and sentences for criminal vehicular homicide and criminal vehicular injury and allowing the state to recharge him for these offenses; (2) the district court plainly erred by failing to sua sponte instruct the jury on a lesser-included offense; and (3) the evidence is insufficient to support his conviction of third-degree depraved-mind murder.


Appellant Fabrizio Montermini was the driver of a car involved in a two-car accident on January 13, 2006, that claimed the life of his passenger, B.F., and injured six other people. The undisputed evidence is that, on the evening of January 13, 2006, appellant and B.F. met four friends at a home in Inver Grove Heights to go dancing at Stargate, a Maplewood nightclub. Appellant and B.F. arrived at the home between 7:00 and 7:30 p.m. and appellant began drinking a mixture of vodka and Gatorade. At approximately 8:30 p.m., the group left for Stargate in two cars. There were three passengers in appellant's car. B.F. was seated in the front passenger seat, A.S. was in the rear driver-side seat, and M.C. was seated in the rear passenger-sideseat. J.C. drove S.J. in the other car. Appellant continued to drink the vodka-and-Gatorade mixture as he drove.

None of the group members knew how to get to Stargate, so appellant was relying on directions he was receiving by phone from a friend. The two cars initially drove north from Inver Grove Heights toward St. Paul on Highway 52. When he reached I–94, appellant headed west, but missed the exit for I–35E north. Appellant exited the freeway when he realized they were heading in the wrong direction and stopped his car on a side street. When the trailing car arrived, he reentered I–94 heading back east. On this pass, appellant again missed the turn for north I–35E and continued east on I–94 until S.J., with whom he was speaking by cell phone, confirmed that appellant was driving the wrong direction. He exited at Ruth Street, intending to reenter I–94 heading west. But appellant missed the freeway entrance ramp and instead turned west onto Old Hudson Road, a frontage road with a speed limit of 30 miles per hour, at approximately 9:40 p.m. He continued talking to S.J. by cell phone as he approached a curve in the road at between 58 and 61 miles per hour. As he rounded the curve, appellant lost control of the car, which skidded sideways into the oncoming lane, and the passenger side of his car struck the front end of an oncoming vehicle.

The collision left all three passengers of appellant's vehicle unconscious. B.F. suffered a severe head injury and multiple fractures. M.C. suffered a broken femur. A.S. received cuts and bruises. Four occupants of the car appellant struck were also injured. Appellant, who remained conscious, exited his vehicle. He walked down an embankment and urinated, then returned to his car. Despite the efforts of a bystander to stop him, appellant drove up a curb, nearly striking other bystanders, then drove away from the accident scene. He rolled through a red light before turning north on Ruth Street, then accelerated to nearly 80 miles per hour. When appellant came upon an unlit church parking lot, he dragged the unconscious bodies of his passengers from the car onto the cold pavement, then left. When A.S. regained consciousness, she summoned help at a nearby house. An ambulance arrived at 10:07 p.m. At 11:10 p.m., a state trooper stopped appellant's car on I–35E because the car was badly damaged and weaving onto the shoulder. Appellant failed field sobriety tests and was arrested. Based on a blood draw at 12:46 a.m., appellant's alcohol concentration was 0.15.

The state initially charged appellant with one count each of criminal vehicular operation resulting in great bodily harm and criminal vehicular operation resulting in substantial bodily harm. On February 11, 2006, B.F., who had not regained consciousness after the collision, was removed from life support and died. The state informed appellant by letter that it intended to file an amended complaint charging him with additional counts, including third-degree murder, for the death of B.F. The state also moved for an upward durational departure based on aggravating factors. On March 1, 2006, the state filed an amended complaint charging appellant with two counts of criminal vehicular homicide, three counts of kidnapping, and two counts of criminal vehicular operation resulting in substantial bodily harm.

On March 31, 2006, appellant pleaded guilty to criminal vehicular homicide, in violation of Minn.Stat. § 609.21, subd. 1(4) (2004), criminal vehicular operation resulting in substantial bodily harm, in violation of Minn.Stat. § 609.21, subd. 2a(4) (2004), and three counts of kidnapping to facilitate flight, in violation of Minn.Stat. § 609.25, subd. 1(2) (2004). In exchange for appellant's guilty pleas, the state agreed to dismiss the remaining criminal vehicular homicide and injury charges, not to file additional charges including third-degree murder, and not to seek an upward departure from the presumptive sentences. Appellant agreed that the state could seek permissive consecutive sentences on the kidnapping charges.

At the plea hearing, appellant offered a signed plea petition that he testified his attorney had negotiated with the state and that he had read and understood. In the petition, appellant acknowledged,

[I]f I withdraw the plea, with the court's approval, or if the plea is withdrawn by court order on appeal or other review:

a. I would then stand trial on the original charges.

b. The prosecution could proceed against me just as if there had been no plea of guilty and no plea agreement.

The district court sentenced appellant to three consecutive terms of 48 months for kidnapping, 78 months stayed for criminal vehicular homicide, and 17 months stayed for criminal vehicular injury.

On February 23, 2007, appellant filed a postconviction petition alleging that he had received ineffective assistance of counsel when he pleaded guilty to the kidnapping charges and that his sentences were erroneous. The postconviction court corrected appellant's sentences but denied appellant's motion to withdraw his guilty pleas to kidnapping. On appeal from that denial, this court concluded that appellant had received ineffective assistance of plea counsel, and we reversed and remanded to allow appellant to withdraw his guilty pleas to kidnapping. State v. Montermini, No. A06–1640, 2009 WL 1373666, at *7 (Minn.App. May 19, 2009), review denied (Minn. Aug. 11, 2009).

On remand, the state filed a motion, which the district court granted over appellant's objection, to vacate appellant's remaining pleas and convictions to criminal vehicular homicide and criminal vehicular injury so as to return the parties to their pre-plea positions. The state then filed an amended complaint charging appellant with additional counts, and the case proceeded to a jury trial.

At trial, appellant admitted that he had been drinking the night of the crash, that he was driving negligently, and that his negligence had caused the death of B.F. and the injuries to the other six victims. He conceded that he was guilty of criminal vehicular homicide and every count of criminal vehicular injury. But he contested his guilt as to third-degree murder and kidnapping.

On those charges, the state produced evidence that appellant began driving at excessive speeds shortly after he left the house in Inver Grove Heights and continued to do so throughout the evening. A.S. testified that she first became concerned about appellant's driving when, as they passed I–494 on Highway 52, appellant started [s]peeding and swerving in and out of cars into other lanes.” J.C. testified that she had difficulty following appellant's car, so she asked him to pull over and let them catch up. Appellant complied, and after J.C. caught up, the two cars turned onto I–94 west from Highway 52.

According to J.C., once appellant entered I–94, he took off going so fast [she] couldn't even catch up.” She called appellant and told him to slow down, but appellant said “no way dog.” J.C. testified that she heard screaming in the background. A.S. testified that appellant “was going way over the speed limit and driving crazy.” M.C. recalled that appellant was “driving really fast” and was “swerving in and out of cars.” Both A.S. and M.C. testified that they asked appellant several times to slow down and to let them out of the car. At this point, appellant had missed the exit for I–35E north for the first time and exited I–94. J.C., A.S., and M.C. testified that he drove the wrong way down a one-way street before stopping. Because they felt unsafe, A.S. and M.C....

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  • State v. Hutchins, A14–0750.
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    ...court should be free to consider the effect that changes in the sentence have on the entire plea agreement”); State v. Montermini, 819 N.W.2d 447, 455 (Minn.App.2012) (rejecting the defendant's argument that the district court erred by vacating guilty pleas that were not challenged on appea......
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