State of Minnesota v. Raheem Michael Kemokai ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0844
State of Minnesota,
Respondent,
vs.
Raheem Michael Kemokai,
Appellant.
Filed June 15, 2015
Reversed and remanded
Hudson, Judge
Clay County District Court
File No. 14-CR-13-2696
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Brian Melton, Clay County Attorney, Moorhead, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Renee Bergeron, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Smith,
Judge.
UNPUBLISHED OPINION
HUDSON, Judge
In this appeal following his convictions of second-degree aggravated robbery,
fleeing a police officer in a motor vehicle, and criminal damage to property, appellant
challenges the district court’s decision to impose sentences that constitute upward
durational departures from the presumptive guidelines sentences. Because we conclude
that the district court’s grounds for the departures are not justified by the record, we
reverse and remand for the imposition of the presumptive sentences.
FACTS
In August 2013, appellant Raheem Michael Kemokai entered a service center
located in Moorhead, Minnesota, told the attendant that he had a gun, and demanded that
the attendant give him money from the cash register. He later fled from responding law
enforcement officers in a motor vehicle, driving at a high rate of speed for several blocks
before crashing into a residential yard after a police officer placed “stop sticks” in his
path. The state of Minnesota subsequently charged appellant with first-degree aggravated
robbery, second-degree aggravated robbery, fleeing a police officer in a motor vehicle,
and criminal damage to property. The state also filed a notice of its intent to seek an
upward sentencing departure on the grounds that appellant had two or more convictions
for violent crimes and represented a danger to public safety under Minn. Stat. § 609.1095(2012). The jury found appellant guilty of all charges except for first-degree aggravated
robbery.
At the subsequent sentencing trial, the state introduced into evidence certified
copies of appellant’s three previous felony convictions. The first conviction, conspiracy
to commit armed robbery, was for acts occurring on February 15, 2011; the second
conviction, robbery, was for acts occurring on March 11, 2011; and the third conviction,
conspiracy to commit armed robbery, was for acts occurring on March 12, 2011.
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Appellant pleaded guilty to each of the offenses on January 23, 2012. The jury found that
appellant was a danger to public safety.
Based on the jury’s finding, the district court imposed a 120-month prison
sentence on the second-degree aggravated robbery offense, a 36-month-and-one-day
consecutive prison sentence on the fleeing offense, and a 24-month concurrent prison
sentence on the criminal damage to property offense. The 120-month sentence imposed
for second-degree aggravated robbery represented an upward departure from the
presumptive 57-month sentence and the 36-month sentence imposed for fleeing a police
officer in a motor vehicle represented an upward departure from the presumptive one
year and one day sentence.
The day after the sentencing hearing, the district court reconvened the parties to
clarify its sentencing order. The district court informed the parties that it considered
appellant’s criminal history score to be zero when it calculated the consecutive sentence
that it imposed for fleeing a police officer in a motor vehicle, that the presumptive
sentence for that offense was a stayed sentence of one year and one day, and that an
upward departure was warranted based on “the exceptionally egregious nature of the
crime” and the jury’s finding that appellant was a danger to public safety. This appeal
follows.
DECISION
I
Appellant argues that the district court erred in departing upward from the
presumptive sentence for second-degree aggravated robbery because the record does not
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support the district court’s application of the dangerous-offender sentencing
enhancement. A district court must order the presumptive sentence specified in the
sentencing guidelines unless there are “identifiable, substantial, and compelling
circumstances” to warrant an upward departure from the presumptive sentence. Minn.
Sent. Guidelines 2.D.1 (2014). Substantial and compelling circumstances demonstrate
“that the defendant’s conduct was significantly more or less serious than that typically
involved in the commission of the offense in question.” State v. Edwards, 774 N.W.2d
596, 601 (Minn. 2009). We review de novo whether there are valid grounds for the
district court to order an upward departure. Dillon v. State, 781 N.W.2d 588, 595 (Minn.
App. 2010), review denied (Minn. July 20, 2010).
The dangerous-offender statute permits the district court to impose a durational
departure not otherwise authorized by the sentencing guidelines. Neal v. State, 658
N.W.2d 536, 545 (Minn. 2003); Minn. Stat. § 609.1095, subd. 2. The statute authorizes
the district court to impose an upward durational departure up to the statutory maximum
sentence if the offender is convicted of a violent crime that is a felony and the statutory
requirements are satisfied. Neal, 658 N.W.2d at 545. The three statutory requirements
are: (1) the offender was at least 18 years old when the felony was committed; (2) the
offender had two or more prior convictions for violent crimes; and (3) the fact-finder
determines that the offender is a danger to public safety. Minn. Stat. § 609.1095, subd. 2.
At issue here is the second requirement, whether appellant has two or more prior
convictions for violent crimes.
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The term “prior conviction” is defined as “a conviction that occurred before the
offender committed the next felony resulting in a conviction and before the offense for
which the offender is being sentenced under this section.” Id., subd. 1(c). A conviction
is defined as “any of the following accepted and recorded by the court: a plea of guilty, a
verdict of guilty by a jury, or a finding of guilty by the court.” Id., subd. 1(b). We have
previously concluded that, to constitute a prior conviction as defined by Minn. Stat.
§ 609.1095, the first offense and conviction for that offense must both occur before the
second offense. See State v. Huston, 616 N.W.2d 282, 283 (Minn. App. 2000) (stating
that the statute requires “offense/conviction, offense/conviction, offense/conviction”).
We explained that this sequencing requirement was meant to exclude “prejudicial use of
multiple convictions resulting from a short crime spree” and to provide the offender a
postconviction opportunity for reform before the next offense. Id. at 284.
Here, the acts underlying appellant’s previous offenses occurred on three different
dates, but his convictions for those offenses occurred on the same date: January 23, 2012,
when he pleaded guilty to each offense. Thus, those offenses can constitute only one
prior conviction for purposes of the dangerous-offender statute.1 See id. at 283. Because
the record does not establish that appellant possesses any other convictions for violent
1
The Minnesota Supreme Court recently concluded, for purposes of determining whether
a defendant is subject to a lifetime conditional release term, that a defendant has a “prior
sex offense conviction” if the defendant’s first conviction occurred before the second
conviction, even if the defendant committed the second offense before he was convicted
of the first offense. State v. Nodes, ___ N.W.2d ___, ___, 2015 WL 2088872, at *5
(Minn. May 6, 2015). But Nodes is distinguishable because, unlike the conditional
release statute, the dangerous offender statute expressly limits a defendant’s prior
convictions to those that “occurred before the offender committed the next felony
resulting in a conviction.” Minn. Stat. § 609.1095, subd. 1(c) (emphasis added).
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crimes, we conclude that the district court erred by imposing an upward departure based
on the dangerous-offender sentencing enhancement. We therefore reverse the sentence
imposed for second-degree aggravated robbery and remand for the district court to
impose the presumptive sentence.
II
Appellant also challenges the district court’s imposition of a 36-month-and-one-
day consecutive sentence for fleeing a police officer in a motor vehicle. The state
concedes that the district court erroneously imposed an upward departure for that offense
and argues that the matter should be remanded for the district court to impose the
presumptive sentence. We agree.
The district court imposed an upward departure on the fleeing offense based on the
jury’s finding that appellant represented a danger to public safety and “the exceptionally
egregious nature of the crime.” But the dangerous-offender statute does not apply here
because the offense for which appellant was convicted, fleeing a police officer in a motor
vehicle, is not considered a violent crime for purposes of that sentencing enhancement.
See Minn. Stat. § 609.1095, subd. 1(d) (listing offenses that constitute violent crimes for
purposes of dangerous-offender sentencing enhancement). Moreover, the state concedes
that it did not seek an upward departure on the fleeing offense and that it presented no
evidence to the jury in support of aggravating factors that would support a motion for an
upward departure. An upward departure may be based only on those factors that the
sentencing jury found to be proven beyond a reasonable doubt. Minn. Stat. § 244.10,
subd. 5 (2012). Because there are no factors that support the upward departure imposed
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by the district court for fleeing a police officer in a motor vehicle, we reverse the
sentence imposed for that offense and remand for the district court to impose the
presumptive sentence.2
Reversed and remanded.
2
On remand, the district court may consider whether it is appropriate to impose a
permissive consecutive sentence of one year and one day for the fleeing offense. See
Minn. Sent. Guidelines 2.F.2.a(2)(iii), 4.A, 5.A (2014) (permitting consecutive executed
sentencing for person convicted of that offense without providing reasons for departure
and providing presumptive duration of that sentence to be one year and one day).
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