Opinion
No. C1-96-927.
Filed October 22, 1996.
Appeal from the District Court, Polk County, File No. K2-95-1732.
Hubert H. Humphrey, III, Attorney General, Wayne H. Swanson, Polk County Attorney, Scott A. Buhler, Assistant County Attorney.
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender.
Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
Jeffrey Clyde Stewart appeals the trial court's decision to impose consecutive rather than concurrent sentences for aggravated robbery and attempted aggravated robbery convictions. Because the sentencing did not unfairly exaggerate the criminality of appellant's conduct, we affirm.
DECISION
On December 4, 1995, appellant entered a guilty plea on one count of attempted aggravated robbery under Minn. Stat. SSSS 609.245, subd. 1, 609.05, subd. 1, 609.17, subds. 1, 4(2) (1994), and one count of aggravated robbery under Minn. Stat. SSSS 609.245, subd. 1, 609.05, subd. 1 (1994). The remaining counts were dismissed. The plea was open with regard to disposition.
Appellant's attempted aggravated robbery took place at the East Grand Forks McDonald's. Because appellant denied wearing a mask and pointing and cocking a shotgun at the McDonald's employee, his plea was changed to an Alford plea. Appellant understood that his version of the McDonald's incident was inconsistent with statements given by both the employee and appellant's co-defendant. The aggravated robbery took place a short time later at a Cenex convenience store in Fisher. As to that incident, appellant admitted that he entered the store with a bandana over his face and pointed a shotgun at the salesclerk.
The parties agree that the court's imposition of consecutive sentences for the attempt and the aggravated robbery convictions was permissive under the guidelines. See Minn. Sent. Guidelines II.F.2. (consecutive sentences allowable for multiple current felony convictions for crimes against different persons). Whether to impose consecutive sentences is within a district court's discretion. State v. Allen , 482 N.W.2d 228, 231 (Minn.App. 1992), review denied (Minn. Apr. 13, 1992). Absent compelling circumstances, an appellate court will not interfere when the district court acts within the guidelines. State v. Freyer , 328 N.W.2d 140, 142 (Minn. 1982); State v. Beamon , 438 N.W.2d 397, 400 (Minn.App. 1989), review denied (Minn. May 12, 1989).
To achieve fairness in sentencing, this court will compare a defendant's sentence with those of other offenders. State v. Norris , 428 N.W.2d 61, 70-71 (Minn. 1988) (sentence modified but some consecutive sentences affirmed). After reviewing "numerous cases involving aggravated robbery, assault, and multiple victims" resulting in consecutive sentences, the Minnesota Supreme Court noted in Norris that
[n]one of these cases have involved more than three multiple sentences * * * and most of them have involved two sentences to be served consecutively.
Id. Similarly, this case is like "most" of the cases where two sentences are to be served consecutively.
Appellant and his co-defendant failed on their first attempted robbery at the McDonald's. They then proceeded to find another victim at another location. In both incidents, appellant and his co-defendants wore bandanas over their faces while appellant pointed an unloaded shotgun at the clerk. Appellant committed two distinct offenses in two different towns involving different victims. In this sense, the "criminality" of the conduct was greater than a single incident. See, e.g., State v. Branson , 529 N.W.2d 1, 4 (Minn.App. 1995) (where more than one victim involved, consecutive sentencing appropriate to recognize severity of each crime), review denied (Minn. Apr. 18, 1995).
Appellant's argument that his actions were "minimal" ignores the fear his actions generated in his victims. In light of the adverse testimony by the McDonald's employee and appellant's co-defendant, appellant's denial of the attempted aggravated robbery is not persuasive. Consequently, his willingness to admit to the one incident of aggravated robbery is not a compelling reason to interfere with the trial court's exercise of its sentencing discretion.
Under the circumstances of this case, the district court did not abuse its discretion by imposing consecutive sentences.