                          This opinion will be unpublished and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
                                     A14-0390

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                 Tyshawn Lanier Darden,
                                       Appellant.

                                 Filed January 12, 2015
                                        Affirmed.
                                     Stauber, Judge

                                Clay County District Court
                                   File No. 14CR13817

Lori Swanson, Minnesota Attorney General, St. Paul, Minnesota; and

Brian Melton, Clay County Attorney, Moorhead, Minnesota (for respondent)

Bradford Colbert, St. Paul, Minnesota (for appellant)

       Considered and decided by Reilly, Presiding Judge; Stauber, Judge; and

Chutich, Judge.

                         UNPUBLISHED OPINION

STAUBER, Judge

       Appellant argues that the district court abused its discretion by imposing

consecutive sentences for his convictions of first-degree burglary and first-degree assault

arguing that the sentences unfairly exaggerated the criminality of his conduct. Because
consecutive sentences were part of appellant’s plea agreement and the sentences do not

unfairly exaggerate the criminality of appellant’s conduct, we affirm.

                                          FACTS

       In 2013, appellant Tyshawn Darden was charged with aiding and abetting

attempted first-degree murder, aggravated first-degree robbery, aiding and abetting

aggravated first-degree robbery, and conspiracy to commit aggravated first-degree

robbery. The state later added two additional charges, first-degree burglary and first-

degree assault with great bodily harm.

       Appellant pleaded guilty to one count of first-degree burglary and one count of

assault in the first degree with great bodily harm. Under the terms of the plea agreement,

appellant would be sentenced to 48 months for the first-degree burglary charge and 86

months for the first-degree assault charge, to be served consecutively, for a total sentence

of 134 months. The remaining charges would then be dismissed.

       Upon pleading guilty, appellant provided a factual basis for the plea. Appellant

stated that on March 6, 2013, he, S.B., and M.C. drove to a residence in Moorhead to rob

a drug dealer of marijuana and money. Appellant was armed with a pistol and S.B. with

a .22 caliber rifle. According to appellant, S.B. and M.C. entered the house while he

waited in the car. S.B. then called appellant on his phone “saying that everything was

bad,” prompting appellant to leave the car and approach the house. As appellant

approached the house, he heard gunshots and then observed S.B. fighting with another

man, A.S. Appellant admitted that when he reached the “threshold of the house,” he shot

A.S. with the pistol, causing “great bodily harm” to A.S.


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       The district court sentenced appellant to 134 months in accordance with the plea

agreement. This appeal followed.

                                     DECISION

       Consecutive sentences for first-degree burglary and first-degree assault are

permissive. Minn. Sent. Guidelines 2.F.2. 6 (2012). But permissive consecutive

sentences may still be reviewed for an abuse of discretion. State v. Yang, 774 N.W.2d

539, 563 (Minn. 2009). “The district court abuses its discretion in imposing consecutive

sentences when the resulting sentence unfairly exaggerates the criminality of the

defendant’s conduct.” Id.

       Appellant argues that because there was “very little evidence” to support his

burglary conviction, a consecutive sentence for the burglary and assault convictions

unfairly exaggerates the criminality of his conduct. Thus, appellant argues that the

district court abused its discretion by imposing a consecutive sentence.

       We disagree. A determination of whether a defendant’s sentence unfairly

exaggerates the criminality of his conduct is accomplished by comparing the defendant’s

sentence with other similarly situated defendants. See Neal v. State, 658 N.W.2d 536,

547-48 (Minn. 2003) (comparing defendant’s 480-month kidnapping sentence to other

cases involving kidnapping and determining that the sentence was excessive and

unreasonable). Here, the only case cited by appellant to support his claim that his

sentence was unreasonable is State v. Hough, 585 N.W.2d 393 (Minn. 1998). But in that

case, the supreme court affirmed the imposition of consecutive sentences after the

defendant was convicted of multiple counts of assault involving several victims. Id. at


                                             3
397-98. Consequently, Hough does not support appellant’s claim that his sentence

unfairly exaggerated the criminality of his conduct.

       Moreover, appellant admitted that he “reached the threshold” of the victim’s house

carrying a pistol. This admission is sufficient to convict appellant of first-degree

burglary. See Minn. Stat. § 609.582, subd. 1(b) (2012) (defining first-degree burglary

with a dangerous weapon). He also admitted that he shot the victim and that the wounds

caused great bodily harm. This evidence was sufficient to convict appellant of first-

degree assault with great bodily harm. See Minn. Stat. § 609.221, subd. 1 (2012)

(defining first-degree assault with great bodily harm). The district court heard evidence

of appellant’s conduct and determined that consecutive sentences were appropriate. See

Hough, 585 N.W.2d at 397 (stating that “[a] [district court] judge sits with a unique

perspective on all stages of a case, including sentencing, and the [district court] judge is

in the best position to evaluate the offender’s conduct and weigh sentencing options”).

And, appellant expressly agreed to the 134-month prison sentence as part of a plea

agreement that, presumably, benefited him. In fact, appellant answered “[y]es, sir” after

the terms of the plea agreement were stated on the record and the district court asked

appellant if he “agree[d]” with the terms of the plea agreement. Appellant’s claim that

his sentence is now unfair ignores the fact that he realized the bargained-for benefit of

multiple dismissed charges in an agreement in which he agreed to serve the precise

sentence that he now challenges. Accordingly, the district court, consistent with the plea




                                              4
agreement, did not abuse its discretion by sentencing appellant to consecutive sentences

totaling 134 months.

      Affirmed.




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