State of Minnesota v. Zaki Mohamed Sugule

This opinion will be unpublished and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
A15-0826

State of Minnesota,
Respondent,

vs.

Zaki Mohamed Sugule,
Appellant.

Filed February 29, 2016
Affirmed
Hooten, Judge

Hennepin County District Court
File No. 27-CR-14-24105

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and Hooten,

Judge.

UNPUBLISHED OPINION

HOOTEN, Judge

Appellant argues that the district court abused its discretion by denying his motion

for a downward durational sentencing departure. We affirm.
 FACTS

On the afternoon of August 1, 2014, appellant Zaki Mohamed Sugule went to a

coffee shop in Minneapolis. Sugule had been drinking alcohol since early in the day, and

he was intoxicated when he arrived at the coffee shop. Noticing a group of Somali men

engaged in conversation, Sugule, who is also from Somalia, tried to participate in the

discussion. Because of his state of intoxication, the Somali men refused to include Sugule

in their conversation, at which point Sugule became angry and threatened to harm one of

the men with a drill bit that Sugule was holding. Sugule was arrested shortly thereafter,

and on August 18, 2014, he was charged with one count of terroristic threats (reckless

disregard) in violation of Minn. Stat. § 609.713, subd. 1 (2014).1

On October 1, 2014, Sugule pleaded guilty to the sole count in the complaint.

Pending sentencing, Sugule was allowed to be released to a mental illness and chemical

dependency treatment program. The prosecutor stated that he would “consider

[recommending] probation” if Sugule made “satisfactory progress” in the treatment

program. The prosecutor also stated that he would consider recommending 21 months in

prison if Sugule was unable to make satisfactory progress, which would have been a

downward durational departure from the presumptive guidelines sentence of 30 months.

A sentencing hearing was held on January 26, 2015. Sugule initially appeared, but

after defense counsel told him that the district court was not going to consider a

1
On May 12, 2015, the offense of “terroristic threats” was renamed “threats of
violence.” 2015 Minn. Laws ch. 21, art. 1, § 109, at 234 (amending Minn. Stat. § 609.713
(2014)). Because this change took effect after Sugule committed his offense, we refer to
the offense as “terroristic threats” rather than “threats of violence.”

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probationary sentence, Sugule fled from the courtroom. On February 16, 2015, Sugule was

arrested at the airport while trying to leave the country.

At the next sentencing hearing on February 18, 2015, the prosecutor argued against

probation, but recommended a sentence of 21 months in prison. Defense counsel also

requested that the district court sentence him to 21 months in prison. Sugule told the district

court that the treatment program had shown him that he had a drinking problem and had

taught him how to control his anger, which stemmed from his experiences as a youth during

the civil war in Somalia. The district court acknowledged Sugule’s difficult past, but

stated:

THE COURT: Okay. Well, Mr. Sugule, you’re saying the
right things today . . . . But I simply can’t give you the same
benefit of the doubt that I was prepared to do back on
December 8th. Even with the . . . support of RS Eden,
including the person who was in the courtroom that day as you
left and told you not to leave—
THE DEFENDANT: Yes.
THE COURT: —you nonetheless left and you’ve done that in
the past with regard to your 2011 fifth degree assault
conviction when you absconded from supervision a couple of
times according to the PSI.
THE DEFENDANT: Yes, I understand.
THE COURT: I was prepared to sentence you to 21 months in
prison, which would have been a departure, and that was based
upon the [s]tate’s offer in the case initially . . . , but also based
upon your acceptance of responsibility and the treatment
through RS Eden. When you walked away from the courtroom
that day, and because you’ve been basically out in the wind for
the last month or so, I’m not going to give you that deal
anymore.

The district court sentenced Sugule to 30 months in prison. This appeal followed.

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 DECISION

Sugule argues that the district court abused its discretion by denying his motion for

a downward durational sentencing departure. “[Appellate courts] afford the [district] court

great discretion in the imposition of sentences and reverse sentencing decisions only for an

abuse of that discretion.” State v. Soto, 855 N.W.2d 303, 307–08 (Minn. 2014) (quotation

omitted). “[Appellate courts] will not ordinarily interfere with a sentence [falling] within

the presumptive sentence range, either dispositionally or durationally, even if there are

grounds that would justify departure.” State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006)

(quotation omitted). Indeed, “it would be a rare case which would warrant reversal of the

refusal to depart.” State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

“Requests for 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, 130 (Minn. App.

2012), review denied (Minn. Feb. 27, 2013). “Caselaw is settled that offender-related

factors do not support durational departures.” Id. Thus, a district court must consider only

offense-related factors when deciding a request for a durational departure.

Sugule argues that the district court abused its discretion by failing to fully consider

the mitigating factors in support of a downward durational departure. First, he argues that

his problems with alcohol and anger were mitigating factors that the district court gave

insufficient weight. However, alcohol and anger problems are offender-based in nature

and therefore are not factors a district court may consider in deciding whether to grant a

durational departure. See id.

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 Next, Sugule argues that his acceptance of responsibility was a proper factor to

justify a downward durational departure. “As a general rule, a defendant’s remorse bears

only on a decision whether or not to depart dispositionally, not on a decision to depart

durationally . . . .” State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). “However, there

may be cases in which the defendant’s lack of remorse could relate back and be considered

as evidence bearing on a determination of the cruelty or seriousness of the conduct on

which the conviction was based.” State v. McGee, 347 N.W.2d 802, 806 n.1 (Minn. 1984).

Sugule fails to show how his supposed remorse in any way related back to make his

offense less serious. During his post-Miranda interview with police, Sugule denied that he

threatened anyone. And, he showed a lack of remorse and an unwillingness to accept

responsibility when he fled from the courthouse during his first sentencing hearing and

appeared before the district court again only after being arrested at the airport. The record

does not support Sugule’s claim that his alleged remorse related back to the seriousness of

his offense.

Sugule also argues that the district court abused its discretion by impermissibly

considering his failure to appear at the January 26, 2015 sentencing hearing in its decision

not to depart. Post-offense conduct is not relevant to a decision on whether to depart

durationally because it does not relate to the seriousness of the offense. State v. Behl, 573

N.W.2d 711, 713 (Minn. App. 1998), review denied (Minn. Mar. 19, 1998). It does appear

that the district court improperly considered Sugule’s flight from the first sentencing

hearing as a reason for denying his request for a downward durational departure. But, “the

district court is not required to explain its reasons for imposing a presumptive sentence.”

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State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013), review denied (Minn. Sept. 17,

2013). Moreover, there are no offense-related factors that would support a downward

durational departure in this case. Therefore, the district court did not abuse its discretion

by denying Sugule’s motion.

Affirmed.

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