State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1369

State of Minnesota,
Respondent,

vs.

Dayquan Jayru Rain Hodge,
Appellant.

Filed July 27, 2020
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-18-24099

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Reilly, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal from a final judgment of conviction for three counts of fleeing
a police officer resulting in de ath, appellant Dayquan Jayru Rain Hodge argues that the

2
district court abused its discretion by imposing three consecutive prison sentences, totaling
390 months. Appellant also argu es that he was denied the pr omised benefit of his plea
bargain because his attorney did not argue for a 300-month sentence. We affirm.
FACTS
The offenses and guilty plea
Shortly after 1:00 a.m. on September 23, 2018, a state trooper spotted a vehicle that
had been reported stolen driving on I-94 be tween St. Paul and Minneapolis. When the
vehicle exited the highway and stopped at the intersection of Hiawatha Avenue and Cedar
Avenue, state troopers activated their lights and sirens to signal the vehicle to pull over.
Hodge was the driver, and he had four juven ile passengers in the car. When he saw the
lights and sirens, he knew he was supposed to pull over. Bu t, instead of stopping, Hodge
fled south on Cedar Avenue at a high rate of speed, traveling at 80 to 105 miles per hour.
He sped away for several blocks, passing multip le cars by driving in the wrong lane of
traffic, as observed from a state patrol helicopter. He then ran a red light and struck a pickup
in the intersection at 35th Street. All three passe ngers in the pickup died at the scene. All
four passengers in Hodge’s vehicle sustai ned injuries, including fractures requiring
surgery, facial trauma, and injuries requiring intubation. Hodge was pinned in the vehicle
and also sustained injuries requiring surgery. Hodge had smoked marijuana before driving
the vehicle that day, and he knew that the vehicle was stolen.
The state charged Hodge with ten counts: three counts of fleeing a peace officer
resulting in death, three counts of crimin al vehicular homicide, criminal vehicular
operation—great bodily harm, criminal vehicular operation—substantial bodily harm, and

3
two counts of criminal vehicular operation—b odily harm. Pursuant to a plea agreement,
Hodge pleaded guilty to three counts of fleeing a police officer resulting in death and the
state dismissed the other seven charges. The parties agreed to a sentencing range of 300 to
480 months.
Sentencing
At sentencing, the district court heard fro m several family members of the victims,
who detailed the devastating impact of the loss of their loved ones. The district court also
heard from a doctor who performed a neurops ychological examination on Hodge. The
doctor explained, consistent with his written re port that the district court reviewed, that
Hodge had suffered a brain injury when he was four or five years old after he fell from a
third-story window and sustained multiple skull fractures. Since then, he has had a history
of negative, dysregulated beha viors, including impulsivity an d lack of cooperation with
authorities. His cognitive difficulties have been compounded by an extraordinarily
tumultuous home life. He was removed from the home at a young age and had 11 different
out-of-home placements. The doctor explained that Hodge has had various psychological
evaluations performed on him over the year s, which yielded diag noses including mood
disorders, conduct disorder, and oppositional defiant disorder.
In addition to reviewing Hodge’s records and history, the doctor performed a series
of thinking skills tests. He reported that Hodge’s best scores were in the lower part of the
“average range” but that many of his scores were “significantly lower.” Hodge’s “most
severe intellectual deficits” were with executive skills: logic, reasoning, planning,
organization, and decision-making. And, on the tests where Hodges “had to make decisions

4
and choices and use logic when speed was a factor, his scor es were uniformly below the
first percentile.” The doctor ex plained: “[Y]ou put Mr. Hodge[ in a] situation where he
does not have the ability to take his time and think about things, his decision-making skills
are greatly impaired.” The doct or stated that this impaired decision-making capability is
related to Hodge’s brain injury and that when Hodge is in “situations . . . trying to make
decisions quickly . . . these skills in essence entirely fail him.”
The district court also reviewed an extensive and thorough mitigation report
submitted by Hodge’s counsel. The mitigation report details Hodge’s difficult childhood
and experiences with child protective services, his exposure to abuse and violence in his
environment, his educational hi story, and his mental health history. The report provides
relevant details about the science on adoles cent brain development and specifically how
trauma affects the adolescent brain. It also provides Minnesota Sentencing Guidelines
Commission data on sentences for the same offense as Hodge’s.
The presumptive durational disposition fo r each of Hodge’s convictions is 150
months, without Hernandizing.1 The presentence investigation report (PSI) recommended
three 150-month sentences, served consecutiv ely, for a total of 450 months. The state

1 “Hernandize” is “the unofficial term for the process describe d in section 2.B.1.e [of the
sentencing guidelines] of counting criminal history when multiple offenses are sentenced
on the same day before the same court.” Minn. Sent. Guidelines 1.B.(10) (2018). With
Hernandizing, the presumptive duration fo r Hodge’s second conviction becomes 180
months, and for the third becomes 210 months. But when felony offe nses are sentenced
consecutively, “the court must use a Criminal History Score of 0 . . . to determine the
presumptive duration.” Minn. Sent. Guide lines, 2.F.2.b. (2018). The 150-month
presumptive duration for each of Hodge’s offenses is based on a criminal history score of
zero.

5
joined the recommendation of the PSI evaluator. Hodge’s co unsel argued for a sentence
“towards the middle or bottom of the [bargained-for] range.” Hodge’s counsel represented
that the middle of the bargained-for range, 390 months, could be accomplished without a
departure from the sentencing guidelines because the bottom of the guidelines range would
be 384 (128—the bottom-of-t he-box sentence for each conviction—three times). The
district court pronounced three consecutive sentences of 130 months each, totaling 390
months.
This appeal follows.
D E C I S I O N
I. The district court did not abuse its di scretion by imposing three consecutive
sentences totaling 390 months.

We review the imposition of permissive consecutive sentences when multiple
victims are involved for an abuse of discretion. See State v. Cruz-Ramirez , 771 N.W.2d
497, 512 (Minn. 2009). An appellate court “will interfere with a district court’s sentencing
discretion only when the sentence is disproportionate to the offense or unfairly exaggerates
the criminality of the defendant’s conduct.” State v. Ali, 895 N.W.2d 237, 247 (Minn. 2017)
(quotation omitted). Reviewing courts “are also guided by past sentences imposed on other
offenders.” State v. McLaughlin, 725 N.W.2d 703, 715 (Minn. 2007) (quotation omitted).
A sentence within the guidel ines range is presumptively appropriate. Minn. Sent.
Guidelines 2.D.1 (2018); State v. Delk, 781 N.W.2d 426, 4 28 (Minn. App. 2010), review
denied (Minn. July 20, 2010) (“This court will not generally review a district court’s

6
exercise of its discretion to sentence a defendant when the sentence imposed is within the
presumptive guidelines range.”).
The Minnesota Sentencing Guidelines prov ide that “when an offender is convicted
of multiple current offenses . . . concurrent sentencing is presumptive.” Minn. Sent.
Guidelines 2.F (2018). But a district cour t may impose consecutive sentences “[i]f the
offender is being sentenced for multiple current felony convictions for crimes on the list of
offenses eligible for permissive consecut ive sentences.” Minn. Sent. Guidelines
2.F.2.a.(1)(ii). Fleeing a peace officer resulting in death is included on the list of offenses
eligible for permissive consecutive sentencing. Minn. Sent. Guidelines 6 (2018). “In cases
with multiple victims, consecutive sentences ar e rarely, if ever, disproportionate to the
offense.” State v. Ali, 855 N.W.2d 235, 259 (Minn. 2014).
Hodge argues that the district court abused its discretion by imposing three
consecutive sentences because a cumula tive 390-month sentence exaggerates his
culpability based on his “extre me mental impairment.” “Extreme mental impairment has
been held to mitig ate against an upward departure.” State v. Lee , 491 N.W.2d 895, 902
(Minn. 1992). The supreme court has emphasi zed that “extreme mental impairment” is
impairment that deprives a pers on of control over his actions. Id.; see McLaughlin, 725
N.W.2d at 716 (stating that in order to be c onsidered a mitigating factor in sentencing, a
mental impairment must be “‘extreme’ to the point that it deprives the defendant of control
over his actions”).
Hodge argues that the neuropsychological report presented to the district court
established that he suffered an extreme ment al impairment. He argues that the doctor’s

7
testimony that, when Hodge is trying to make decisions quickly, his executive functions
“in essence entirely fail him” establishes that he “had no capacity to make a rational
decision” when the sirens came on and he ne eded to decide whether to pull over. Hodge
argues that this court has foun d “extreme mental impairment” based on similar levels of
cognitive impairment, citing State v. Martinson , 671 N.W.2d 887 (M inn. App. 2003),
review denied (Minn. Jan. 20, 2004), and State v. Barsness, 473 N.W.2d 325 (Minn. App.
1991), review denied (Minn. Aug. 29, 1991).
Neither Martinson nor Barsness provides a particularly close factual analogy,
though, and, importantly, in neither case did this court reverse the district court’s decision
whether to impose permissive consecutive sentences. In Martinson, the district court
granted a substantial downward dispositional departure due to the defendant’s mental
condition. 671 N.W.2d at 890. Martinson suffered from paranoid schizophrenia, which
manifested in psychotic delusions. Id. At the time that he killed his wife by swerving into
oncoming traffic, he believed that his wife was working with the CIA, which, he
irrationally believed, wanted him dead. Id. The state appealed, argui ng that district court
abused its discretion by granting the downward durational departure because the sentence
was not proportional for a murder offense. Id. at 891. This court affirmed the district court’s
decision to depart as within its discretion. Id. at 893.
In Barsness, the district court similarly imposed a downward dispositional
departure, and this court affi rmed. 473 N.W.2d at 329. Bars ness left her baby alone for a
week, causing its death. Id. at 327. The mitigating circumstances cited by the district court
included that “Barsness was: 1) borderline me ntally retarded; 2) chemically dependent;

8
and 3) suffering from major, severe depression.” Id. at 329. On appeal, Barsness argued
that she should have received a greater downward durational departure (more than 36
months), and this court concluded that the de parture adequately reflected her “lack of
substantial capacity for judgment” and affirmed the district court’s decision. Id. (quotation
omitted). Ultimately, neither Martinson nor Barsness leads us to conclude that the district
court erred by imposing consecutive sentences here.
Hodge also argues that his history of trau ma and related mental illness compounded
the cognitive deficits caused by his brain injury. He also cites case law and research about
the mitigating factor of youth, as he had rece ntly turned 18 when this offense occurred.
See, e.g. , Roper v. Simmons , 543 U.S. 551, 574, 125 S. Ct. 1183, 1197 (2005) (“The
qualities that distinguish juveniles from adults do not disappear when an individual turns
18.”).
The state responds that the same informa tion Hodge presents in his appellate brief
was presented to the district court. It argues that the district court considered the totality of
the evidence and acknowledged Hodge’s mental condition but determined that Hodge was
nonetheless responsible for a series of choice s that made consecutive, bottom-of-the-box
sentences appropriate.
The district court indeed evaluated su bstantial information regarding Hodge’s
cognitive abilities and mental condition. At se ntencing, the district court told Hodge,
“[There is] no question that you’ve experience d trauma in your short life.” The district
court also noted that Hodge was remorseful for his actions. But the district court
nevertheless determined that sentencing on e ach count did not unfa irly exaggerate the

9
criminality of Hodge’s conduct because three victims died and, as the district court
explained to Hodge, “[Y]ou were making choices that day: You were on probation. You
were in a stolen car. You were using marijuan a. You were speeding, really speeding. In
addition, you drove for miles. You could have stopped at any point, but you didn’t, and we
are here today.”
Although Hodge makes a co mpelling case for leniency in sentencing, and his
traumatic past is indeed trag ic, we cannot conclude that th e district court abused its
discretion by imposing consecutive sentences, at the bottom of the guidelines range, under
these circumstances. See State v. Hough, 585 N.W.2d 393, 397 (M inn. 1998) (explaining
that the district court “sits with a unique pers pective . . . [and] is in the best position to
evaluate the offender’s conduct and weigh sentencing options”). The district court imposed
a guidelines sentence, and consecutive senten ces when there are mu ltiple victims “are
rarely, if ever, disproportionate.” Ali, 855 N.W.2d at 259; see also State v. Edwards , 774
N.W.2d 596, 605 (Minn. 2009) (“[W]here multiple victims ar e involved, a defendant is
equally culpable to each vic tim.”). As the district court de termined, Hodge made a series
of choices—not just a single, split-second decision—the night of the offenses in question.
Moreover, Hodge has not shown that his sentence is inconsistent with sentences imposed
on other offenders. See McLaughlin , 725 N.W.2d at 715. Acco rding to the historical
sentencing data in the mitigation report, th e six offenders convicted of fleeing police
resulting in death between 2010 and 2017 each received sent ences within or above the
guidelines range. For the foregoing reasons, we hold that the district court did not abuse its
discretion by imposing three consecutive sentences, totaling 390 months.

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II. Hodge was not denied the promised benefit of his plea bargain.

Hodge next argues that he was denied the promised benefit of his plea bargain when
his attorney did not argue for a 300-month sentence. For a guilty plea to be valid, it must
be voluntary, accurate, and intelligent. Perkins v. State , 559 N.W.2d 678, 688 (Minn.
1997). As part of the voluntariness requi rement, “if a guilty pl ea is induced by a
government promise, such a promise must be fulfilled or due process is violated.” State v.
Wukawitz, 662 N.W.2d 517, 522 (Minn. 2003). “Determining what the parties agreed to in
a plea bargain is a factual inquiry,” but th e interpretation and en forcement of plea
agreements present issues of law subject to de novo review. State v. Rhodes, 675 N.W.2d
323, 326 (Minn. 2004); see also State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000).
Hodge pleaded guilty to thre e counts of fleeing a peace officer resulting in death,
and the state dismissed the remaining seven coun ts in the complaint. At the plea hearing,
the prosecutor explained that the bargained- for sentencing arrangem ent was a sentence
range of 300 to 480 months. Hodge’s attorney agreed with this summary and also noted for
the record that a discussion in chambers occurred about how the district court could
structure the sentences to fit w ithin that range. Hodge’s atto rney noted that “the defense
will be arguing for 300 months.”
The district court then expressed its understanding that the guidelines called for a
presumptive sentence on count one of 150 months, or a range of 120 2 to 180 months.

2 The correct lower limit is actually 128 months. See Minn. Sent. Guidelines 4.A. & 5.A
(2018).

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Accordingly, it explained, if permissive consecutive sentences were imposed, the
cumulative sentence would approach the uppe r limit of the agreed upon range. Before
accepting Hodge’s plea, the district court cl arified that Hodge understood that the
agreement was for a sentence within a broad range:
DISTRICT COURT: Mr. Hodge, you know that the plea
agreement in this case comes w ith some level of uncertainty?
You know that?
HODGE: Yes.
DISTRICT COURT: Because ther e’s that range, 300 to 480.
So if you choose to go forward with the plea today, then the —
the two sides are going to argue what they think the sentence
should be within that range. So there is some uncertainty there
for you. You get that?
HODGE: Yes.
DISTRICT COURT: And you want to go forward despite that
uncertainty?
HODGE: Yes.

The PSI noted that “[t]he negotiate d range of a 300-480 month commitment
presumes permissive consecutive senten cing.” The PSI evaluator and the state
recommended that the district court impose three consecutive sentences of 150 months (the
presumptive duration on one count), for a total of 450 months’ imprisonment.
3
As discussed above, in lieu of a sent encing memorandum, the defense submitted a
detailed mitigation report, which ultimately requested “[a] sentence near the bottom of the
range.” At the sentencing hearing, defense co unsel argued that “Mr. Hodge’s history, his
significantly traumatic childhood and his brain injury all support the sentencing towards

3 The PSI evaluator reviewed the neuropsycho logical report by the doctor before making
this recommendation.

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the middle or bottom of the range.” Defense counsel then explained that the middle of the
bargained-for range, 390 mont hs, could be accomplished w ithout a downward departure
from the guidelines by imposing three sentences of 130 months, an amount near the bottom
of the guidelines range, 128 months. Defense counsel later reiterate d the request for a
sentence “towards the middle or bottom of the range.”
Hodge argues on appeal that his attorney ’s sentencing argument denied him the
benefit of the plea bargain because his atto rney did not argue for a 300-month sentence.
4
He asserts that his attorney could have argued for consecutive sentences of 150 months on
the first two counts and a concurrent sentence on the third, which would have kept the
request within the agreed-upon range. The st ate responds that the plea bargain was not
induced by an unfulfilled promise because Hodge received a sentence within the bargained-
for range, and claims that the agreement had always been to sentence each count to
recognize the death of each victim. A senten ce of 300 months, the state contends, would
have constituted a departure from the pr esumptive guidelines range if sentencing
consecutively on all three counts.
It appears from the record that, as Ho dge argues, the plea agreement would have
allowed defense counsel to argue for two consecutive sentences and one concurrent
sentence, consistent with the guidelines, which allow for permissive—not presumptive—
consecutive sentences under these circumstances. See Minn. Sent. Guidelines

4 Hodge does not bring a claim of ineffective assistance of trial counsel. He clarifies in his
reply brief—after the state responded to his claim as potentia lly encompassing an
ineffective-assistance argument—that his “claim is based pr imarily on due process—that
he was denied the benefit of his agreement.”

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2.F.2.a.(1)(ii). It is not entirely clear why defense counsel did not argue for one of the
sentences to run concurrently, because, at th e plea hearing, defense counsel appeared to
anticipate doing so and the state’s sentencing memorandum anticipated that argument. It is
possible that defense counsel thought that an argument for concurrent sentencing would
likely fail under the general one-sentence-per-victim principle and in light of the historical
sentencing data for the same offense. See Ali, 855 N.W.2d at 259. In any event, defense
counsel prepared and submitted a wealth of m itigating information for the district court’s
consideration and argued for a sentence “towards the middle or bottom of the range.” We
accordingly hold that Hodge has not shown that his plea was induced by an unfulfilled
promise.
Affirmed.