This opinion will be unpublished and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
A14-2055
State of Minnesota,
Appellant,
vs.
Baruch Kefa Nieznanski,
Respondent.
Filed May 11, 2015
Affirmed
Rodenberg, Judge
Dissenting, Chutich, Judge
St. Louis County District Court
File No. 69DU-CR-14-1106
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark S. Rubin, St. Louis County Attorney, Gary W. Bjorklund, Assistant County
Attorney, Duluth, Minnesota (for appellant)
Cathryn Middlebrook, Chief Appellate Public Defender, Sean M. McGuire, Assistant
Public Defender, St. Paul, Minnesota (for respondent)
Considered and decided by Smith, Presiding Judge; Rodenberg, Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant State of Minnesota challenges the decision of the district court to
sentence respondent to a downward durational departure of 36 months in prison. We
affirm.
FACTS
On April 2, 2014, police responded to a reported domestic violence incident and
stopped respondent Baruch Nieznanski as he was leaving the residence at which the
incident reportedly occurred.1
According to the complaint, respondent had been in an argument with his wife
B.A.N. B.A.N. tried to leave the couple’s bedroom, and respondent prevented her from
leaving. The situation escalated and respondent began to take pictures off of the wall and
smash them on the ground. At that point, B.A.N. attempted to call the police, but
respondent stopped her. According to the complaint, respondent reached into a bag
belonging to B.A.N. and pulled out a firearm, which B.A.N. lawfully possessed.
Respondent is a felon and ineligible to possess a firearm.
The complaint also stated that respondent put the barrel of the firearm in his
mouth, waved the gun around, and at times pointed it toward B.A.N. Eventually,
respondent put the gun down. B.A.N. yelled for her father, who lived in the home with
1
Respondent requests that we strike the majority of appellant’s recitation of the facts
because “appellant’s statement of the facts is almost completely unsupported by
references to the record,” citing to Cole v. Star Tribune, 581 N.W.2d 364, 371 (Minn.
App. 1998) and Minn. R. Civ. App. P. 128.02, subd. 1(c). Because respondent never
filed a motion to strike, he is not entitled to relief. See Minn. R. Civ. App. P. 127.
2
B.A.N., respondent, and four children. One of the children awoke B.A.N.’s father, who
gained entry into the room and positioned himself between B.A.N. and respondent. At
that point, B.A.N. was able to leave the room, grabbing her gun on the way out. B.A.N.
then called the police.
The complaint charged respondent with possession of a firearm by an ineligible
person (felon) in violation of Minn. Stat. § 624.713, subd. 1(2) (2012), false
imprisonment in violation of Minn. Stat. § 609.255, subd. 2 (2012), gross misdemeanor
interference with an emergency call in violation of Minn. Stat. § 609.78, subd. 2 (2012),
misdemeanor domestic assault in violation of Minn. Stat. § 609.2242, subd. 1(1) (2012),
and misdemeanor domestic assault in violation of Minn. Stat. § 609.2242, subd. 1(2)
(2012). As part of a plea agreement, respondent pleaded guilty to the felon in possession
of a firearm charge, and the state dismissed the other charges. There was no agreement
concerning sentencing and the respondent moved the district court for a dispositional
departure.
At the sentencing hearing, the district court denied respondent’s motion for a
dispositional departure, but sentenced him to a mitigated durational departure of 36
months executed. While not giving any reason for this durational departure during the
hearing, the district court later filed a departure report and indicated that the “crime [was]
less onerous than usual.” This appeal followed.
DECISION
A conviction in violation of Minn. Stat. § 624.713, subd. 1(2), carries with it a
mandatory minimum sentence of five years (60 months) in prison. Minn. Stat. § 609.11,
3
subd. 5(b) (2012). On its own motion, the district court may impose a sentence without
reference to the mandatory minimum, and such sentence is considered a departure from
the sentencing guidelines. Minn. Stat. § 609.11, subd. 8(a) (2012).2 The district court
may not, however, depart from the mandatory minimum sentence if the offender has a
prior conviction involving use of a firearm or other dangerous weapon. Minn. Stat.
§ 609.11, subd. 8(b) (2012). The district court must have substantial and compelling
reasons to depart from the sentencing guidlines. Id.
We review a district court’s departure from the sentencing guidelines for an abuse
of discretion. State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014). Generally, we “will
not interfere with [the district court’s] discretion unless [we have] a ‘strong feeling’ that
the sentence is disproportionate to the offense.” State v. Schenk, 427 N.W.2d 12, 13
(Minn. App. 1988) (quoting State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981)).
Durational departures require the district court “to consider whether the conduct involved
in the offense of conviction was significantly more or less serious than the typical
conduct for that crime.” State v. Peter, 825 N.W.2d 126, 129 (Minn. App. 2012), review
denied (Minn. Feb. 27, 2013).
2
While the district court in this case was authorized to impose a downward durational
departure on its own motion, we observe that the motion and arguments before the
district court focused entirely on whether or not a dispositional departure was appropriate
in this case. We question whether the state had appropriate notice of the possibility of a
downward durational departure and whether the state should have been heard on its
arguments that a downward durational departure was inappropriate. See Minn. R. Crim.
P. 27.03, subd. 1(3) (stating that “[i]f the court intends to consider a mitigated departure
from the sentencing guidelines, the court must advise the parties” and it must provide
notice). However, the state did not preserve this issue for appeal and we therefore do not
address it.
4
In Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985), the Minnesota Supreme
Court provided a framework for reviewing departure decisions by the district court, see
also State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).3 That decision provides:
1. If no reasons for departure are stated on the record at the
time of sentencing, no departure will be allowed.
2. If reasons supporting the departure are stated, this court
will examine the record to determine if the reasons given
justify the departure.
3. If the reasons given justify the departure, the departure
will be allowed.
4. If the reasons given are improper or inadequate, but there
is sufficient evidence in the record to justify departure, the
departure will be affirmed.
5. If the reasons given are improper or inadequate and there
is insufficient evidence of record to justify the departure,
the departure will be reversed.
Williams, 361 N.W.2d at 844; accord Geller, 665 N.W.2d at 516. Here, the district court
provided a reason for the departure, that this crime was “less onerous than usual.” 4
Therefore, we analyze this departure under category two (2) of Williams, and we look to
“the record to determine if the reasons given justify the departure.” 361 N.W.2d at 844.
The only sworn testimony in the record concerning the facts of the incident is that
of respondent from the plea hearing. In that testimony, respondent did not admit, as the
3
Williams and Geller are both cases in which the district court imposed an upward
durational departure. The holding of those cases has since been modified by the United
States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 313-14, 124 S.
Ct. 2531, 2543 (2004), requiring that the existence of aggravating factors be found by a
trier of fact. However, there is nothing to suggest that the framework adopted in these
cases does not continue to apply when we review downward durational departures.
4
The record in this case is imperfect. The district court should have been more explicit
in its reasoning for why the crime in this case was less onerous than usual. But Williams
does not allow us to reverse on an imperfect record alone.
5
complaint alleged, that he pointed the firearm at B.A.N. He did not admit to physically
assaulting B.A.N. There was no testimony or evidence to support the state’s contention
that B.A.N. was terrified or that B.A.N. was injured in the encounter. In fact, respondent
was asked if anyone was hurt, and he responded, “No.” The state dismissed all of the
counts of the complaint except those relating to possession of the firearm. And it had the
opportunity to question respondent at the plea hearing. Had the state intended to rely at
sentencing on facts different than those admitted by respondent at the plea hearing,
including a claim that he pointed a firearm at B.A.N., it could and should have made a
record of those facts. Because the state dismissed all of the other charges and made no
factual record beyond respondent’s plea, the district court was presented with a record
including only that respondent, an ineligible person, briefly possessed a firearm during an
argument with his wife, threatening himself but no one else.
This record supports only that respondent fleetingly grabbed the gun during an
emotionally charged incident. He did not fire it or plan to use it. The district court
implicitly found the same when it concluded that this crime was less onerous than usual.
The district court was best situated to weigh the evidence before it and to understand the
context of the actions of respondent. Whether we would arrive at the same conclusion is
not the question before us on appeal. We are not left with with the “‘strong feeling’ that
the sentence is disproportionate to the offense.” See Schenk, 427 N.W.2d at 13 (quoting
State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981)).
Affirmed.
6
CHUTICH, Judge (dissenting)
I respectfully dissent. Because nothing in the record supports the finding that this
crime—a key part of what the district court aptly characterized as a “very violent, very
frightening incident that could have gone horribly horribly wrong”—was somehow “less
onerous than usual,” I would reverse.
The conviction here carried with it a five-year mandatory minimum sentence.
Minn. Stat. § 609.11, subd. 5(b) (2012). Nieznanski moved for a dispositional departure
only, arguing that he was amenable to probation. The district court denied his motion
and instead sentenced Nieznanski to 36 months, a mitigated durational departure. The
district court did not state its reason for the durational departure on the record but
checked “Crime less onerous than usual” in its departure report.
A district court may depart from the mandatory minimum sentence required here if
substantial and compelling reasons exist. Minn. Stat. § 609.11, subd. 8(a) (2012); Minn.
Sent. Guidelines 2.E.2.b. (2012). Although we review a departure for abuse of discretion,
a district court may depart “only if aggravating or mitigating circumstances are present.”
State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014) (quotation omitted). A district court
abuses its discretion if its departure reasons are improper or insufficient and insufficient
evidence justifies the departure. Id.
The district court here stated in the departure report that it was departing because
the crime was “less onerous than usual.” The severity of an offense is an appropriate
factor for a downward durational departure. See State v. Cox, 343 N.W.2d 641, 643
(Minn. 1984). If a district court states its reason for departure, “this court will examine
D-1
the record to determine if the reasons given justify the departure.”5 Williams v. State, 361
N.W.2d 840, 844 (Minn. 1985). Nothing in the record here justifies the departure.
The majority claims that the record “supports only that respondent fleetingly
grabbed the gun during an emotionally charged incident.” I disagree. Nothing in the
factual basis for the plea suggests that Nieznanski’s possession was fleeting.
Instead, Nieznanski’s admissions during the plea hearing illustrate an encounter
that would terrify any human being. Nieznanski, having decided that he “had had enough
of what was going on” with his wife, grabbed a handgun “[t]o control the situation.” His
attempt to “control the situation” included threatening to kill himself while forcing his
wife to watch. Then Nieznanski—who is ineligible to possess a firearm because of his
previous conviction of kidnapping to commit great bodily harm or terrorize the victim,
his former wife—prevented his current wife from leaving the room to call 911. These
admissions do not suggest a fleeting possession.
In addition to Nieznanski’s testimony, the district court also had the presentence
investigation report, the main purpose of which is to aid a court in fashioning a just
sentence. See State v. Ender, 467 N.W.2d 39, 41 (Minn. App. 1991). In the report,
B.A.N. stated that she remains very much afraid of Nieznanski. Nieznanski admitted that
the details of how he used the loaded gun during the violent domestic argument were
accurate.
5
As the majority notes, no authority suggests that our analysis of mitigated departures
under Williams has been affected by Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531 (2004).
D-2
As the majority notes, the district court did not state its reason for the durational
departure on the record. But its statements at the sentencing hearing belie the suggestion
that this crime was “less onerous.” The district court expressed its concern that
Nieznanski has not “figured out the power and control dynamics here that lead to
domestic violence.” And it then described this offense as “a very violent, very
frightening incident that could have gone horribly horribly wrong.” This remark was the
district court’s only offense-related statement. And only offense-related factors can
support durational departures. State v. Peter, 825 N.W.2d 126, 130 (Minn. App. 2012),
review denied (Minn. Feb. 27, 2013); see also State v. Chaklos, 528 N.W.2d 225, 228
(Minn. 1995).
Furthermore, Williams does not limit our examination to the sworn testimony at
the plea hearing; instead, “this court will examine the record to determine if the reasons
given justify the departure.” 361 N.W.2d at 844 (emphasis added). The record before
the district court at sentencing included not just Nieznanski’s testimony, but also the
complaint and presentence investigation report. The majority, in reaching its decision,
fails to consider these additional parts of the record because the other offenses were
dismissed. But while uncharged or dismissed offenses cannot form the basis for an
upward departure, State v. Jones, 745 N.W.2d 845, 849 (Minn. 2008), no authority states
that a district court cannot consider the conduct underlying other offenses when imposing
a presumptive sentence. Moreover, the conduct pertaining to the assault and interference
with a 911 call is relevant to how Nieznanski used the loaded gun that evening, so it
pertains to the possession charge as well.
D-3
Nieznanski’s possession of a firearm did not occur in a vacuum; the complaint and
presentence investigation report provide relevant context in which to judge the
seriousness of this possession offense. In addition to providing more detail about
Nieznanski’s possession of the gun, the complaint also shows that this violent
confrontation did not end until the couple’s ten-year-old daughter—one of four children
in the home at that time—successfully woke B.A.N.’s father, who entered the room and
separated the couple until Nieznanski left.
In sum, when considering the record before the court, no evidence exists to
support the district court’s conclusion that this crime was “less onerous” than the usual
felon-in-possession case. As the district court explained, “this [was] a very violent, very
frightening incident that could have gone horribly horribly wrong.” This “very violent,
very frightening incident” simply does not support a finding that this case is “less
onerous” than the typical felon-in-possession case. Because insufficient evidence
justified the departure, I would hold that this case is a rare one in which the district court
abused its discretion. I would reverse and remand for imposition of the presumptive
sentence.
D-4