The Free Press, Mankato, MN

August 16, 2013

Sentencing may be cut in drive-by shooting appeal

Alex Marxen shot at a vehicle, man last March

By Dan Linehan
The Mankato Free Press

---- — The sentence of a Madison Lake man convicted in a drive-by shooting may be reduced after a state appeals court reversed the sentence and sent it back to district court.

The three-judge panel ruled this week that Blue Earth County District Judge Krista Jass made a mistake by sentencing Alexander Rapheal Marxen’s two charges in the incorrect order. This led to a longer sentence of 66 months because the first crime counted against his record, automatically increasing the severity of the second offense under state sentencing guidelines.

According to an opinion written by Judge Margaret Chutich, Marxen fired two rounds in Mankato on March 6, 2012, from his vehicle. The first shot was at a vehicle and the second, a bit later, at a person, though no one was hit. Marxen was charged with two counts of drive-by shooting, among other crimes, but eventually pleaded guilty to a count of drive-by shooting plus a count of second-degree assault for the second shooting.

He was given 36- and 66-month sentences, though they ran at the same time, effectively nullifying the shorter sentence for second-degree assault. Even so, the lesser charge lengthened the sentence for the more serious crime.

That’s because the second-degree assault was charged first, adding a “point” to sentencing guidelines for the more serious drive-by shooting charge, said Marxen’s state public defender, Erik Withall. This increased the sentencing range from 41-57 months to 50-69 months.

Withall appealed based on the incorrect order of the charges.

As the appeals court panel noted, multiple offenses are supposed to be sentenced in the order in which they occurred. In this case, that means the drive-by shooting charge, not the assault charge, should have come first.

The practical result appears to be that the drive-by shooting charge would not have a “point” attached for the previous charge, shrinking its sentencing range. The “point” is instead tacked onto the second lesser charge. But, again, the length of the lesser charge does not matter if both sentences are happening at the same time.

It's important to note that the appeals court only reversed the sentence, not the conviction itself.

So when the judge reconsiders sentencing, she will likely be looking at the lesser range, 41-57 months, fewer than the 66 months she settled on in November. The judge could exceed the sentencing guidelines but would have to state a reason for doing so.

A recent Minnesota Supreme Court decision on drive-by shootings reinforces the appeals court ruling.

The high court ruled somewhat counter-intuitively that a shooting is only “drive-by” if the victim is inside a vehicle or building. And because the second shot was fired at someone on foot, it was unequivocally not a drive-by shooting.

Marxen is incarcerated at the Faribault prison with a projected release date of July 4, 2016.