STATE OF MINNESOTA, Respondent, vs. Deveon Marquise Branch, Appellant.
A18-1055
STATE OF MINNESOTA IN SUPREME COURT
May 6, 2020
Gildea, C.J. Dissenting, Thissen, J.
Court of Appeals
Keith Ellison, Attorney General, Saint Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County Attorney, Minneapolis, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Veronica May Surges, Assistant Public Defender, Saint Paul, Minnesota, for appellant.
S Y L L A B U S
Because
Affirmed.
O P I N I O N
GILDEA, Chief Justice.
The question presented in this case is whether appellant Deveon Marquise Branch can receive sentences for both drive-by shooting at an occupied vehicle and second-degree assault, when the crimes arise from a single behavioral incident. The district court imposed two sentences to run concurrently: 48 months for drive-by shooting at an occupied vehicle and 36 months for second-degree assault. The court of appeals affirmed the sentences. State v. Branch, 930 N.W.2d 455 (Minn. App. 2019). Consistent with our decision in State v. Ferguson, 808 N.W.2d 586 (Minn. 2012), we conclude that
FACTS
The facts are undisputed. On April 27, 2017, Branch met the mother of his child in a South Minneapolis neighborhood to drop off the child. After Branch gave the child to mother, she and the child, along with mother’s adult male friend, got into mother’s vehicle. Another adult male, C.L.G., was standing outside and next to the vehicle. Branch and C.L.G. began to argue. Branch pulled out a handgun and shot in C.L.G.’s direction, but the bullet struck the front passenger door of mother’s vehicle.
The State charged Branch with one count of drive-by shooting at an occupied vehicle under
Branch entered a straight guilty plea to all three counts with no agreement on sentencing. During the plea hearing, Branch admitted that he pulled out a handgun and fired a single gunshot in the direction of C.L.G. with the intention to “scare,” but not harm, C.L.G. He confirmed that C.L.G. was “[s]tanding next to the vehicle that was ultimately struck with the bullet.” Branch conceded that discharging “the firearm toward [C.L.G.] and toward that motor vehicle . . . was reckless” and “by shooting in the direction of [C.L.G.], that was an assault on that person.” He also agreed that “there were occupants inside that vehicle” when it “was struck by the bullet.” The district court accepted Branch’s plea and convicted him of all three charges.
The district court sentenced Branch to 48 months in prison for drive-by shooting and 36 months for second-degree assault, with the sentences to be served concurrently.1 The court did not impose a sentence for the reckless-discharge-of-a-firearm conviction.
Branch appealed, arguing that the sentence for second-degree assault should be vacated because his convictions for the assault and the drive-by shooting arose out of a single behavioral incident, were motivated by a single criminal objective, and were committed against only one victim. Branch, 930 N.W.2d at 457. The court of appeals affirmed the sentences. Id. at 459. Relying on our decision in Ferguson, 808 N.W.2d 586, the court of appeals determined
We granted Branch’s petition for review.
ANALYSIS
We must decide if Branch’s second-degree assault sentence violates
Section 609.035 states:
Except [for subdivisions that do not apply to this case], if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.
Branch contends that under section 609.035, the district court should have imposed a single sentence for his most serious offense, the drive-by shooting at an occupied vehicle. See
State v. Kebaso, 713 N.W.2d 317, 322 (Minn. 2006) (“[W]e have implicitly approved the use of the sentencing guidelines’ severity-level rankings as a method for determining which of multiple felony offenses is the most serious.“). He argues that the second-degree assault sentence therefore violates section
In Ferguson, we concluded that section 609.035 does not prohibit multiple sentences for the crime of drive-by shooting when the same conduct—the shooting—also constitutes assault. 808 N.W.2d at 588, 592. In Ferguson, the defendant was involved in a drive-by shooting at an occupied building, which was a house with eight people inside. Id. at 588. Ferguson was convicted of one count of drive-by shooting at an occupied building and eight counts of second-degree assault, one count for each person inside the house. Id. The district court in Ferguson imposed nine sentences: one sentence for the conviction for drive-by shooting at an occupied vehicle and eight sentences for the second-degree assault convictions, one sentence for each victim inside the house. Id. at 589. The court of appeals vacated the second-degree assault sentences, holding that the district court could sentence Ferguson on only the drive-by-shooting conviction. Id. The court of appeals reasoned that “[t]he most serious offense against each victim was the drive-by shooting,” and therefore “the district court erred by imposing sentence on all nine convictions.” State v. Ferguson, 786 N.W.2d 640, 645 (Minn. App. 2010). We reversed the court of appeals’ decision and upheld the sentences imposed by the district court. Ferguson, 808 N.W.2d at 592. We held that “for purposes of the rule that a district court may not sentence a defendant for more than one crime for each victim, a single count of drive-by shooting at an occupied building does not constitute a crime against each building occupant.” Id. at 590.
We reached the conclusion in Ferguson for two reasons. Id. at 591. First, the crime of drive-by shooting at an occupied building “require[s] only a reckless discharge of a firearm at or toward an occupied building.” Id. (citation omitted) (internal quotation marks omitted); see also
Second, “the drive-by shooting statute does not require that the occupants of the building be injured, put in fear, or even be aware of the shooting” by the defendant. Id. (citing
The elements of the crimes of a drive-by shooting at an occupied building and a drive-by shooting at an occupied vehicle are essentially identical. See
subd. 1e(b) (“Any person who violates this subdivision by firing at or toward a person, or an occupied building or motor vehicle, may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.” (emphasis added)). The statute does not distinguish between the two offenses. Id. Nor do the parties assert that a meaningful factual or legal distinction exists between shooting at an occupied building and shooting at an occupied vehicle. We therefore conclude that a single count of drive-by shooting at an occupied vehicle does not constitute a crime against each vehicle occupant.
The State argues that under our analysis in Ferguson, the district court properly imposed multiple sentences in this case. We agree. In Ferguson, we affirmed the district court’s imposition of eight sentences for second-degree assault—one for each building occupant—plus one sentence for drive-by shooting. 808 N.W.2d at 592. Here, Branch similarly received one sentence for the second-degree assault against C.L.G and one sentence for the drive-by shooting at an occupied vehicle. The sentences comply with our holding in Ferguson that a single count of drive-by shooting is effectively a victimless crime: Branch received one sentence for his victimless conduct, plus one sentence for his offense against a victim, C.L.G. The district court’s decision to impose two sentences in this case is consistent with Ferguson.4
defendant is charged with crimes committed against multiple victims, a separate analysis under section 609.035 is conducted for each victim. When viewed in the clarifying light of Munt, the nine separate sentences imposed in Ferguson did not violate section 609.035. Applying a separate 609.035 analysis to each victim in Ferguson, the defendant committed only one offense against each victim (namely second-degree assault) because drive-by shooting at an occupied building is a victimless crime. The defendant’s behavior in Ferguson involved separate and distinct conduct under section 609.035: the eight assaults each involved separate conduct and the victimless crime of drive-by shooting at the occupied building involved an additional separate conduct. The ninth sentence was therefore warranted based on the defendant’s victimless conduct.
Applying this reasoning to the facts in this case, Branch’s behavior involved separate and distinct conduct under section 609.035: (1) the assault committed against C.L.G., and (2) the separate victimless crime of drive-by shooting at an occupied vehicle. Section 609.035 therefore does not prohibit sentences for both the drive-by shooting and the second-degree assault.
call, because domestic assault was the most serious offense against a single victim). We disagree.
The drive-by-shooting sentence does not include punishment for the second-degree assault committed against C.L.G. This is so because C.L.G. was standing outside of the vehicle at the time Branch fired a single gunshot. Even if a drive-by shooting at an occupied vehicle could be considered to be a crime against each vehicle occupant, C.L.G. was not a victim of the drive-by shooting because he was not a vehicle occupant. The most serious (and only) offense against the single victim—C.L.G.—was the second-degree assault.
Based on our analysis, we hold that the district court properly sentenced Branch for both the drive-by-shooting conviction and the second-degree assault conviction.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.
STATE OF MINNESOTA, Respondent, vs. Deveon Marquise Branch, Appellant.
A18-1055
STATE OF MINNESOTA IN SUPREME COURT
D I S S E N T
THISSEN, Justice (dissenting).
The court’s decision relies on State v. Ferguson, 808 N.W.2d 586 (Minn. 2012). Under that precedent, the court concludes that
Section 609.035, subdivision 1, provides: “Except [for certain express statutory exceptions], if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses . . . .”
A few years after the Legislature passed section 609.035, we explained in State v. Johnson that the Legislature enacted the provision as a mechanism to protect a defendant against punishment incommensurate with the defendant’s conduct in circumstances where one act violated multiple criminal prohibitions. 141 N.W.2d 517, 523 (Minn. 1966). That is to say, the Legislature identified a policy problem—the imposition of multiple sentences for different offenses arising from a single course of conduct that resulted in unfairly long sentences—and implemented a policy solution intended to address the problem; namely, prohibiting more than one sentence for an episode of conduct. In other words, the Legislature’s response to disproportionally long sentences in cases where a single act constituted more than one offense was to limit courts to imposing a single sentence for the conduct. Critically, the Legislature’s solution was not to give the judiciary the discretion to impose a sentence a judge deemed proportionate.1
Five years after the enactment of section 609.035, and two years after Johnson, we held that multiple sentences could be imposed for a single episode of intentional conduct when multiple victims were involved. State ex rel. Stangvik v. Tahash, 161 N.W.2d 667, 671, 673 (Minn. 1968). We ruled that three concurrent sentences—one for each of three murder victims killed in a single, awful episode—“d[id] not offend our sense of justice.” Id. at 673. We reasoned that because three separate victims were intentionally murdered, “[f]rom a legal point of view [each murder was] totally unrelated.” Id.; see also State v. Prudhomme, 228 N.W.2d 243, 245 (Minn. 1975) (allowing three sentences for sexually
assaulting three victims during one incident but disallowing sentences for kidnapping involving the same victims). Stated another way, we considered each intentional murder as if it were a distinct episode of “conduct” under the statute even though each killing happened around the same time and in the same place.
We also observed in Stangvik that our decision did not undermine the Legislature’s interest in avoiding disproportionately
In the years following Stangvik, what we called (until 2019) the multiple-victim exception to the statute evolved so as to swallow much of the plain and simple rule set forth in
The expansion of judicial discretion in imposing multiple sentences in multiple-victim cases reached a through-the-looking-glass apex in Ferguson where we allowed nine sentences for the firing of approximately six shots at a building that had eight occupants: eight sentences for assault on the eight occupants of the building and a ninth sentence for the drive-by shooting, 808 N.W.2d at 592. We reasoned that because “the drive-by shooting statute does not require that the occupants of the building be injured, put in fear, or even be aware of the shooting” by the defendant, the occupants of the building were not victims of the drive-by shooting. Id. at 591. Accordingly, we held that the defendant could be sentenced for the “victimless” crime of drive-by shooting in addition to being sentenced for each of the assaults against actual victims. Id. at 592. And by logical extension, if a defendant fires a single shot at a single occupant of a building or a vehicle, that defendant can be sentenced for two crimes arising from that single episode of conduct. Stated another way, our multiple-victim rule no longer even needs multiple victims. We have transformed a statute from one that provides that “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses,”
And that brings us to Munt. Munt argued that our creation and application of a judicially created multiple-victim exception to section 609.035 violated the separation of powers doctrine. Munt, 920 N.W.2d at 418. We rejected Munt’s argument, reasoning that the multiple-victim rule is not an exception at all but simply an interpretation of the word “conduct” used in the statutory language. Id. We reaffirmed that “behavior that harms one victim is not the same ‘conduct’ for purposes of the statute as behavior that harms multiple victims.” Id. at 419 (citing Stangvik, 161 N.W.2d at 672–73). For constitutional reasons, we’ve come full circle, returning to the original logic of the multiple-victim rule; namely, that an intentional act that harms one victim at the same time and place as an intentional act that harms a second victim are two different “conduct[s]” under section 609.035.
Where does that leave Ferguson? I conclude that at the very least the imposition of nine sentences where there are only eight potential victims is not sustainable. There simply cannot be nine intentional acts that each harm a victim where there are only eight potential victims. Further, Munt’s insistence in refuting a constitutional separation-of-powers argument that the multiple-victim rule is an exercise in statutory interpretation of the word “conduct” rather than a judicially created exception to the statute dooms the theory underlying Ferguson. Ferguson rests on the theory that section 609.035 is a grant of discretion to courts to impose multiple sentences where multiple victims are involved as long as the judge determines that the punishment imposed on the defendant is commensurate with the defendant’s acts. See 808 N.W.2d at 590. In other words, the rule
judgment, a single sentence for drive-by shooting was “not commensurate with Ferguson’s criminal liability” and so upheld the higher sentence imposed. Id. at 592.
in Ferguson is a separate judicially created exception; something the
I turn now to the present case. The court upholds two sentences for the firing of a single shot at a car that was occupied by three individuals with a fourth individual—the target of the shot—standing outside the car: one sentence for assault on the person standing outside the car and one sentence for drive-by shooting at the occupied vehicle. Under Munt, separation-of-powers principles compel the conclusion that a single behavioral incident of firing one shot can result in two sentences only if the behavior constitutes two discrete intentionally harmful acts against separate victims. Certainly, the assault on the person standing outside the car is such a harmful act. On the other hand, the drive-by shooting is a victimless crime under the logic of our holding in Ferguson; the State can prove Branch guilty of drive-by shooting without any proof that any of the car’s occupants were “injured, put in fear, or even [] aware of the shooting,” 808 N.W.2d at 591. Accordingly, under the multiple-victim rule articulated in Munt and the understanding of drive-by-shooting crimes as crimes without a victim articulated in Ferguson, section 609.035 allows only a single sentence to be imposed on Branch. I would reverse.