State v. Olson, 82-180

• Decision Date: 11 October 1982
• Docket Number: No. 82-180,82-300.,82-180
• Citation: 325 NW 2d 13
• Parties: STATE of Minnesota, Appellant, v. Daniel William OLSON, Respondent, and STATE of Minnesota, Appellant, v. Robert Peter CUNDY, Respondent.
• Court: Minnesota Supreme Court

325 N.W.2d 13 (1982)

STATE of Minnesota, Appellant, v.Daniel William OLSON, Respondent, andSTATE of Minnesota, Appellant, v.Robert Peter CUNDY, Respondent.

Nos. 82-180, 82-300.

Supreme Court of Minnesota.

October 11, 1982.

Warren Spannaus, Atty. Gen. and Gary Hansen, Sp. Asst. Atty. Gen., St. Paul, Alan L. Mitchell, County Atty., John De Santo, Asst. County Atty., Duluth, for State of Minnesota 82-180.

Tom Foley, County Atty., and Steven C. DeCoster, Asst. County Atty., St. Paul, for State of Minnesota 82-300.

Wesley Martins, Indian Legal Assistance Program, Duluth, for Olson 82-180.

Douglas W. Thomson and Paul C. Engh, St. Paul, for Cundy 82-300.

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

AMDAHL, Chief Justice.

These cases are appeals by the state from sentences below the minimum terms of imprisonment mandated by Minn.Stat. § 609.11(Supp.1981).Subdivision 5 of this statute requires minimum sentences of three years' imprisonment for certain offenses committed with a firearm.Subdivision 8, however, allows the prosecutor to file a motion for a reduced sentence."When presented with the motion and if it finds substantial mitigating factors exist, the court shall sentence the defendant without regard to the mandatory minimum terms of imprisonment established by this section."Minn.Stat. § 609.11, subd. 8(Supp.1981).

Defendant Olson was convicted by a jury of assault in the second degree with a dangerous weapon, for shooting a male victim in the leg during a neighborhood fracas.The trial judge sentenced defendant to a term of 54 months in prison, stayed execution of the sentence, and placed him on five years' probation with the condition that he spend the first year of probation at the Northeast Regional Corrections Center.

The fact that a firearm was involved in the offense triggered the application of the mandatory minimum term law, Minn.Stat. § 609.11(Supp.1981) which has recently been amended (effective May 20, 1981) by the addition of subdivision 8.Subdivisions 5, 6 and 8 of the statute and section II.E. of the Minnesota Sentencing Guidelines are here important:

Subdivision 5 provides, so far as pertinent here:

Any defendant convicted of an offense * * * in which the defendant * * * used * * * a firearm, shall be committed * * * for a mandatory minimum term of imprisonment of not less than three years * * *.

Subdivision 6 limits the release of the defendant from imprisonment:

Any defendant convicted and sentenced as required by this section shall not be eligible for probation, parole, discharge, or supervised release until that person shall have served the full mandatory term of imprisonment * * *.

Subdivision 8 provides the only statutory procedure for avoiding the mandatory minimum term.That subdivision provides:

Prior to the time of sentencing, the prosecutor may file a motion to have the defendant sentenced without regard to the mandatory minimum terms of imprisonment established by this section.The motion shall be accompanied by a statement on the record of the reasons for it.When presented with the motion and if it finds substantial mitigating factors exist, the court shall sentence the defendant without regard to the mandatory minimum terms of imprisonment established by this section.

Sentencing Guidelines section II.E. states:

When an offender has been convicted of an offense with a mandatory minimum sentence of three years, the presumptive duration of the prison sentence should be 54 months * * *.¹

Because the stay of sentence departed from the 3 year minimum term of imprisonment mandated by Minn.Stat. § 609.11, the judge filed a departure report listing his reasons as follow:

1.Substantial and compelling evidence at the Sentencing Hearing with respect to the overall excellent background and character of the defendant has been received, and is clear and convincing.

2.The circumstances of the fracas leading up to the criminal charges against the defendant clearly show that all or most of the participants, including the defendant, had been drinking and were under the influence, so that intent was quite questionable.

3.Substantial evidence to the effect that the defendant was acting in self-defense was produced at trial, including convincing evidence that the defendant was confronted with a group of potential adversaries numbering anywhere from five or six (as claimed by the prosecution) up to 50 or 70 (as estimated by the Duluth Police Department).

4.Substantial evidence was offered to the effect that the defendant was, in a misguided fashion, operating on the theory that he was attempting to quell a disturbance, and thus acting in a manner beneficial to society.

5.It is crystal clear to the undersigned that a lengthy period of incarceration at Stillwater for this individual would fly in the face of reason, and that the interests of society, and of the defendant, are far better served by departing from the guidelines in this particular case.

Strong mitigating factors also formed the basis for departure in another case before this Court.Defendant Cundy and victim Kathleen were married in 1959.Three children were born of the marriage.They were separated from September, 1978 to September, 1979 and reunited for a year before separating again in September of 1980.The marriage was dissolved in April of 1981.Defendant began seeing another woman during the final phase of the proceedings but, after the dissolution, stopped seeing her in exchange for a promise from Kathleen that they would have an exclusive relationship.

On May 27, 1981, defendant, after seeing Kathleen arrive at her apartment building with another man, approached her and asked to speak with her.The man threatened the defendant who went to his car and got a loaded pistol from the glove compartment.Defendant and the other man struggled briefly, then defendant fired shots into Kathleen's car.One bullet struck her arm but did not seriously injure her.Defendant entered a plea of guilty to assault in the second degree (assault with a dangerous weapon), Minn.Stat. § 609.222(1980).

Defendant asserted, in his confession, that he did not intend that any of the shots should strike Kathleen and the trial judge so found at the time of sentencing, stating that defendant's action was the product of "an acute, situational, and temporary loss of emotional control" by an otherwise law-abiding person.The trial judge also found that the defendant was not a danger to the community nor to his former wife.She testified that defendant was a good man, that she was not afraid of him and that sending him to prison would be "ridiculous."The three children reside with defendant.Two of them are in educational programs beyond high school and the youngest, age 18, plans to enroll in college upon completion of high school in 1982.

The trial judge determined that if defendant were sent to prison, Kathleen, who now lives in Bemidji, would have to sell the family home in the Twin Cities, which she does not wish to do, and the boys would not be able to continue living in the home while they were attending school and found that sending the defendant to prison would adversely affect the educational plans of the children.Being of the opinion that probation, not imprisonment, would best serve the interests of the defendant, his family and the public, the trial judge made a request to the county attorney to move, pursuant to Minn.Stat. § 609.11, subd. 8, for sentencing without regard to the mandatory term.The county attorney refused to do so.

The trial judge then sentenced the defendant to 54 months in prison but stayed the sentence for 10 years and placed the defendant on probation for that period of time, the first six months to be served in the Ramsey County Workhouse with immediate work release and with time off for good behavior.He ordered defendant to pay Kathleen $5,000 in reparations within three months of his release from the workhouse and to make full restitution for hospital, medical and other bills resulting from the assault.He also ordered defendant to participate in appropriate alcohol and psychological treatment following release from the workhouse and ordered that he not harass, injure or annoy Kathleen.

In a memorandum attached to his order the trial judge in the Cundy case stated:

Subd. 8 was placed in Minn.Stat. 609.11 by the Senate Judiciary Committee in response to testimony of witnesses, including myself, who desired a "safety valve" to moderate the rigors of the minimum sentence law in domestic cases and others where substantial mitigating factors exist.

The minimum sentence law is intended to deter or to incapacitate armed robbers and other desperadoes who commit crimes against members of the public at large.

Crimes against family members differ from crimes against the public because punishing the offender in domestic cases may also punish the victim.This case is a classic example of the problem.

This victim did not suffer serious or permanent bodily harm.The victim does not believe the defendant is a threat to her.The victim does not want the defendant sent to prison.If he is sent to prison, the victim may have to sell her family\'s home, evict her children, and interrupt or terminate their education.She will be deprived of reparations for the fright which has been visited upon her and restitution for her damages.

Sending Peter Cundy to prison would be bizarre and Kafkaesque.Battered women deserve sympathetic treatment from the legal system.They do not deserve to have their situations made worse.

The court is of the opinion that Subd. 8 does not bar the court, in extraordinary cases, from taking note of substantial mitigating factors upon its own motion.This holding does not suggest that the courts may routinely disregard the minimum sentence law; rather to construe the law to prevent the prosecutor from having an unreviewable veto over the power of the court avoids

...