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No lighter sentence for man who fired shots at crowded public park

A man who fired a gun while at a park filled with children and adult bystanders lost his appeal to the Minnesota Supreme Court for a lighter sentence.

August Latimothy Fleming was 20 years old when he was arrested for firing six errant shots at a crowded North Minneapolis park back in 2012. He pleaded guilty and was sentenced to 7 1/2 years in prison – longer than the normal five years in prison because of “aggravating factors” (more on that below). But the judge gave him an out – follow the rules of probation for eight years, and no prison time.

When that probation was violated, it meant Fleming had to serve out his longer prison sentence; that prompted him to appeal the sentence, arguing the extended prison sentence (referred to as an “upward departure”) was unfair.

The State Supreme Court ruled on the case Wednesday, saying the upward departure was appropriate and within the rules of the law. Read on for a full explanation from the court documents.

Fleming was stabbed, which led to the shooting

Fleming was originally charged with second-degree assault and ineligible possession of a firearm in connection with the Oct. 3, 2012 incident.

While at Folwell Park playing pick-up basketball, a scuffle broke out – Fleming being one of the players. He was stabbed in the cheek during the altercation, and in response took a gun from his friend’s bag, brandished it, and fired six times at the man (who was not struck).

Fleming was charged with second-degree assault and ineligible possession of a firearm, and pleaded guilty in February of 2013, the Hennepin County Attorney’s Office said.

Because there were children and adults nearby at the park (one soccer coach yelled at his kids to hit the ground, and others froze in shock or fled in terror, court documents say) the court decided there were aggravating factors – meaning it’s a more serious crime, and results in a longer-than-normal sentence.

Fleming was sentenced to 90 months in prison for ineligible possession – an upward departure from the 60 months (so five years) that sentencing guidelines call for. He also got 30 months for the assault, to be served at the same time.

But instead of going straight to prison, the judge gave Fleming eight years of probation – meaning he wouldn’t serve any prison time if during that span he never committed a crime. (The Hennepin County Attorney’s Office wasn’t thrilled with this decision.)

Fleming however later violated his probation, and the court came back and enacted his prison sentence.

Fleming argues the shooting was part of the assault charge

Fleming appealed his sentence, arguing that an aggravating factor (which is what makes the sentence longer than the guidelines) can’t be something that’s part of the crime itself.

Fleming firing the gun was part of the assault charge, the judge said, so should only be applicable to the assault charge – and not support a longer sentence for the ineligible possession charge.

The appeals court in September of 2015, disagreed with his argument, and said the court was within its rights to have an upward departure.

Fleming then took his case to the Minnesota State Supreme Court – and they said the same thing.

The Supreme Court’s opinion said the original sentence was not out of line because “the firing of a gun six times in a park with many children present” made Fleming’s illegal possession of the gun “significantly more serious than that typically involved” in such an offense.

The fact that it was part of the same course of conduct as the assault charge is allowable, the Supreme Court said.

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