State v. Womack, 82-334.

• Decision Date: 10 May 1982
• Docket Number: No. 82-334.,82-334.
• Citation: 319 NW 2d 17
• Parties: STATE of Minnesota, Respondent, v. Walter Ray WOMACK, Appellant.
• Court: Minnesota Supreme Court

319 N.W.2d 17 (1982)

STATE of Minnesota, Respondent, v. Walter Ray WOMACK, Appellant.

No. 82-334.

Supreme Court of Minnesota.

May 10, 1982.

Heuer, Madden, Gruesner & Bushay, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Thomas W. Foley, County Atty. and Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.

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

AMDAHL, Chief Justice.

This is a sentencing appeal.

Defendant was charged with two crimes, possession of a pistol by a felon and assault in the second degree (assault with a dangerous weapon). The Minnesota Sentencing Guidelines designate the possession charge as a severity level III offense and the assault charge as a severity level VI offense. The defendant had a criminal history score of two, arising from a prior felony conviction and his status as a parolee at the time of the charged offenses. The presumptive guidelines sentence upon conviction of the possession offense for one with a criminal history score of two is 16 months with execution of the sentence stayed. The presumptive sentence for the assault charge is 30 months commit. Defendant, pursuant to a plea agreement that the assault charge would be dismissed upon his plea of guilty to the possession charge, entered such a plea. The sentencing court, being of the opinion that the defendant was not amenable to probation and believing that defendant had committed the assault as alleged, imposed an executed 30-month prison term. This appeal followed. We affirm the dispositional departure but reduce the sentence to the presumptive 16-month term established by the Guidelines.

On July 23, 1981, defendant's former girlfriend called the police and reported that defendant had asked her to return a ring he had given her and, when she said she did not have it, struck her on the head with a handgun and fired shots at her as he left in his car. Defendant was arrested as he was getting into his automobile at a different location. A loaded .22-caliber revolver was found under the front seat of the auto. The two charges followed.

Defendant entered a guilty plea only to the possession charge and then only after the plea negotiation had been reached. In questioning to establish a factual basis for the plea, he testified that he had the gun in his car at the time of the arrest.

The probation officer who prepared the presentence investigation report testified at the sentencing hearing that the defendant claimed that he struck the complainant with the gun only after she assaulted him with a knife and an umbrella and that he fired the gun into the air, not at complainant, in self-defense in order to frighten her away. Defendant also testified at the hearing and reiterated the claim that he used the gun in self-defense. His counsel challenged the right of the court to rely on the evidence surrounding the assault in determining defendant's sentence for the possessory offense.

The trial court, telling defendant that he did not believe that complainant had assaulted him with a knife, sentenced defendant to 30 months in prison, giving the following reasons for departure:

First, the offense for which the defendant was on parole and the current offense involve the use of a firearm.

Secondly, the current offense occurred within six months of his parole, which demonstrates to me quite clearly that the defendant is not suitable parole material and should be incarcerated; that there should not be a stay of execution of sentence in this case because the defendant is not suitable parole or probation material.

Third, by the defendant\'s admission, he injured someone in the course of the commission of the current offense, even though that injury occurred in an offense for which the defendant was charged but which will be dismissed in this court at a later time.

Fourth, by the defendant\'s admission, he fired the firearm which he had in his possession and he fired it in a manner in which I don\'t believe he was demonstrating self-defense.

We believe that the trial court was justified in executing the sentence rather than staying it, as recommended by the Sentencing Guidelines. As stated in State v. Park, 305 N.W.2d 775, 776 (Minn....