Demiteras Al Cooper, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0994

Demiteras Al Cooper, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent

Filed April 16, 2018
Affirmed
Worke, Judge

Hennepin County District Court
File Nos. 27-CR-14-5026, 27-CR-14-5025

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

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Grant Gunderson (certified student attorney), Minneapolis, Minnesota (for
respondent)

Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Ross,
Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the postconviction court abused its discretion by determining
that the district court appropriately assigned a severity level nine to appellant’s offense of
aiding an offender. We affirm.
FACTS
On February 20, 2014, appellant Demiteras Al Cooper went to a residence to
retrieve personal belongings. Cooper went into the kitch en and got into a confrontation
with Q.F. Dashaunta Dmar Gomez entered the residence and shot J.H. Cooper left the
residence knowing that J.H. had been shot. As Cooper pulled away , Gomez jumped into
Cooper’s vehicle. Cooper believed that Gomez shot J.H. and had reason to know that
Gomez had the gun in his possession. Cooper drove Gomez to Gomez’s residence. Cooper
knew that by driving Gomez from the scene , he intentionally assisted Gomez in avoiding
arrest. He also had reason to know that because Gomez had the gun, he was r emoving
evidence from the scene and assisting Gomez in avoiding prosecution. Cooper did not
report the crime to police.
Cooper was indicted on charges of first- and second-degree murder for acting alone
or intentionally aiding in the de ath of J.H. The indictment was amended to include the
unranked offense of aiding an offender after the fact, in violation of Minn. Stat. § 609.495,
subd. 3 (2012).1

1 Gomez was charged with first - and second-degree murder and felon in possession of a
firearm. State v. Gomez , No. A15 -0128, 2016 WL 363403, at *1 (Minn. App. Feb. 1,

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On December 4, 2014, Cooper pleaded guilty to aid ing an offender after the fact.
Cooper’s plea agreement included a severity-level-nine ranking for the offense and a 134-
month prison sentence. The state submitted a sentencing memorandum with justification
for the level-nine ranking. Cooper did not object to the state’s memorandum. The district
court sentenced Cooper to 134 months in prison. The district court incorporated the state’s
memorandum regarding the justification for the level-nine ranking as part of its sentencing
order.
In January 2017, Cooper filed a petition for postconviction relief, requesting that a
“correct” severity level be assigned to the offense. The district court denied Cooper’s
petition, concluding that the district court appropriately exercised its discretion by adopting
the state’s sentencing memorandum regarding justification for the severity -level-nine
ranking. This appeal followed.
D E C I S I O N
Cooper argues that he should be resentenced using a lower severity level. The
district court denied Cooper’s challenge to the severity-level assignment in a peti tion for
postconviction relief. This court reviews a denial of postconviction rel ief for an abuse of
discretion. State v. Hokanson, 821 N.W.2d 340, 357 (Minn. 2012). In doing so, this court
reviews the postconviction court’s legal determinations de novo and its factual findings for

2016), review denied (Minn. Mar. 29, 2016). A jury found Gomez guilty of second-degree
murder and felon in possession of a firearm. Id. The district court sentenced Gomez to 60
months in prison for being a prohibited person in possession of a firearm and to 346 months
in prison for second-degree murder. Id.

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clear error. Bonga v. State , 797 N.W.2d 712, 718 (Minn. 2011). This court reviews a
district court’s severity -level determination for an abuse of discretion. State v. Bertsch ,
707 N.W.2d 660, 666 (Minn. 2006).
Here, Cooper pleaded guilty to ai ding an offender after the fact, an unranked
offense. When a district court sentences an unranked offense, the court “must assign an
appropriate severity level for the offense and specify on the record why that particular level
was assigned.” Minn. Sent. Guidelines 2.A.4 ( 2012). In doing so, the district court may
consider the following factors: (1) “the gravity of the specific conduct underlying the
unranked offense;” (2) “the severity level assigned to any ranked offense with elements
that are similar to the e lements of the unranked offense ;” (3) “the conduct of and severity
level assigned to other offenders for the same unranked offense;” and (4) “the severity level
assigned to other offenders engaged in similar conduct.” Id.; State v. Kenard, 606 N.W.2d
440, 443 (Min n. 2000). No single factor is controlling and th e list of factors is not
exhaustive. Kenard, 606 N.W.2d at 443.
The district court adopted the state’s sentencing memorandum, which analyzed the
factors considered in assigning a severity level to an unranked offense.
As to the first factor—“the gravity of the specific conduct underlying the unranked
offense”—the district court found that Cooper’s conduct was “extremely serious” because
Cooper was present at the time of the shooting and he drove Gomez away from the scene.
The district court’s findings are supported by the record.
Gomez shot J.H. in the res idence while Cooper was there. Cooper drove Gomez
away from the scene, believing that Gomez shot J.H. Cooper admitted that he should have

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known that Gomez left with the gun; thus, Cooper assisted in removing evidence from the
scene and knew that doing so would assist Gomez in avoid ing prosecution. And Cooper
did not report the crime to police. These facts support the district court’s determination
that Cooper’s conduct was “extremely serious.”
As to the second factor —“the severity level assigned to any ranked offense with
elements that are similar to the elements of the unranked offense”—the district court, citing
Kenard, found that the offense most similar to the offense for which Cooper was convicted
was aiding an offender, in violation of Minn . Stat. § 609.495, subd. 1(a) (2012). Noting
that section 609.49 5, subdivision 1(a) , dealt with “considerably less serious underlying
crimes,” the district court relied on characteristics of a n offender’s conduct identified in
Kenard that would justify a higher severity level, including the offender’s presence at,
participation in, and covering up of the underlying offense. The district court found that
Cooper was present during and assisted in covering up the shooting. As described above,
this finding is supported by the record.
As to the third factor—“the conduct of and severity level assigned to other offenders
for the same unranked offense” —the district court listed several cases cited in Kenard in
which offenders were convicted of violating section 609.495, subdivision 3 and received
severity-level rankings of seven and eight.2 The district court noted that the severity levels

2 Since Kenard, this court has released several unpublished opinions affirming severity-
level assignments of eight and nine for the offense of aiding an offender, in violation of
Minn. Stat. § 609.495, subd. 3 , including: State v. Wilson , No. A15-1001, 2016 WL
1396803, at *1 (Minn. App. Apr. 11, 2016) (present in vehicle during drive-by shooting
that injured two women and concealed firearm, assigned severity level eight ), review
denied (Minn. June 29, 2016); State v. Oldenburg, No. A09-1273, 2010 WL 2161028, at

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in these comparable cases predated a modification to the se ntencing guidelines that led to
the increase of severity levels, making a n offense previously ranked at seven now ranked
at eight. See Taylor v. State, 670 N.W.2d 584, 587 n.3 (Minn. 2003). With the increase of
the severity levels, a level seven or eight ranking would now be an eight or nine ranking.
We are also persuaded that Kenard supports a level -nine ranking. There are six
cases cited in Kenard, divided into two groups based on the predicate offense s—robbery
and murder. 606 N.W.2d at 444 -45. The aiding-in-a-robbery offenses were assigned
severity level seven. Id. at 445. The aiding-in-a-murder offenses were ass igned severity
level eight. Id. at 444-45. One of the murder cases is Brayboy. Id. at 444; see State v.
Patterson, 587 N.W.2d 45, 47-48 (Minn. 1998) (discussing Brayboy’s conduct). Brayboy
admitted to being present during the murders and helping the perpetrator flee the scene.
Kenard, 606 N.W.2d at 444. Brayboy’s offense was assigned a severity level eight. Id.
Similarly, Cooper was present at the scene and helped Gomez flee. Cooper’s offens e was
assigned severity level nine. Under the current sentencing scheme Brayboy’s offen se
would be assigned a severity level nine as well.
Finally, as to the fourth factor —“the severity l evel assigned to other offenders
engaged in similar conduct”—the district court found that Cooper’s conduct was analogous

*1-2 (Minn. App. June 1, 2010) (aware of boyfriend’s plot to murder, assisted in disposing
of body, lied to police, and concealed/destroyed evidence, assigned severity level nine); In
re Welfare of T.J.W ., No. A07 -1014, 2008 WL 224013, at *3, *11 (Minn. App. Jan. 29,
2008) (present during murder, participated in attack preceding murder, covered up murder,
and misled i nvestigators, assigned severity level eight), review denied (Minn. Mar. 26,
2008); In re Welfare of C.H., No. C0-02-900, 2003 WL 457233, at *3 (Minn. App. Feb.
25, 2003) (chased victim with intent to cause harm, present during murder, and c oncealed
gun, assigned severity level eight). Although not precedential, these cases are persuasive.

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to the conduct of the offender in State v. Solorzano-O’Brien, who received a severity level
ten ranking. No. A10-1514, 2011 WL 1237554, at *1 (Minn. App. Apr. 5, 2011) , review
denied (Minn. June 28, 2011). In that case, the offender, a high-ranking gang member,
drove four codefendants t o threaten or harm an alleged member of a rival gang. State v.
Patino,3 No. A08 -1005, 2009 WL 2225440, at *1 (Minn. App. July 28, 2009), review
denied (Minn. Oct. 20, 2009). The victim was lured outside and one of the co defendants
shot and killed him. Id. The appellant pleaded guilty to aiding an offender after the fact
for the benefit of a gang. Id.
This court affirmed the severity-level ranking because the appellant was the oldest
of the codefendants and exercised influence on the others, the appellant was in the car when
the codefendants lured the victim outside, the appellant instructed the others to stay silent
and misled the police, and the victim’s family feared gang retaliation. Solorzano-O’Brien,
2011 WL 1237554, at *1 -2. Similarly, Gomez was Cooper’s step son; thus, there was a
level of influence. Gomez was a gang member. Cooper was present during the shooting.
And Cooper assisted Gomez in avoiding arrest and prosecution.
In State v. Skipintheday, this court affirmed the district court’s decision to assign a
severity level eight for the crime of accomp lice after the fact to first-degree murder. 704
N.W.2d 177, 183 (Minn. App. 2005), aff’d, 717 N.W.2d 423 (Minn. 2006). In that case,
the appellant went with three individuals to a party where rival gang members would be
present. Id. at 179. An argument arose between the i ndividuals who arrived with the

3 The appellant used different names.

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appellant and other party attendees, resulting in three individuals being shot and one being
killed. Id. The appellant was present during the shootings but did not participate in them.
Id. The appellant fled in a car with the shooters, advising the driver: “You didn’t see
anything.” Id. The police stopped the vehicle and the appellant removed the ammunition
from the gun and hid it and the gun in separate locations. Id. He also denied involvement
in the shootings and misidentified an individual in the vehicle to protect him from an arrest
warrant. Id.
Similarly, Cooper was present during the shooting an d he fled in a vehicle with
Gomez. Although Cooper did not personally hide the weapon, he admitted that he should
have known that Gomez was in possessi on of the weapon when they fled; by driving
Gomez from the scene, he was removing evidence and assisting Gomez in avoiding
prosecution.
In sum , t he district court considered the Kenard factors and p rovided sufficient
reasons for its severity-level assignment. Cooper’s offense was assigned a severity level
nine, a ranking that corresponds with assignments for similar conduct in comparable cases.
See State v. Misquadace , 644 N.W.2d 65, 68 (Minn. 2002 ) (stating that the sentencing
guidelines promote “uniformity, proportionality, rationality, an d predictability in
sentencing”). The district court did not abuse its discretion by denying Cooper’s petition
for postconviction relief.
Affirmed.