                        This opinion will be unpublished and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                          UNPUBLISHED OPINION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
