The Minnesota Court of Appeals ruled in favor Monday, May 13, with Crow Wing County District Court's decision when it sentenced a 33-year-old Garrison man, who was convicted of two felonies for violating an order for protection.
James M. Alger, Sr., was sentenced March 26, 2018, by Judge David Ten Eyck, now retired, to 24 months in the St. Cloud prison, with 34 days of time for credit served for one count and 12 months and one day for the second count, and the sentences are concurrent. He also had to pay a fine.
The court of appeals decision was considered and decided by Presiding Judge Michelle A. Larkin, Judge Tracy M. Smith and retired Judge Jim Randall. Attorney General Keith Ellison, Crow Wing County Attorney Don Ryan and Matti R. Adam, special assistant to the Crow Wing County attorney, represented the state. Chief Appellate Public Defender Cathryn Middlebrook and her assistant public defender Michael McLaughlin represented Alger.
Alger had an order for protection filed against him, prohibiting him from contacting his former girlfriend and their minor child. He was convicted and sentenced on two counts of violating the order after he engaged in conduct against them by going to a hotel where they were staying. In Alger's appeal, he argued his multiple sentences violate state law because the multiple-victim rule doesn't apply, as stated in the published appeals court opinion.
In his order, Judge Smith wrote the appeals court disagreed with Alger's argument and affirmed the county district's court's decision.
The court of appeals reviewed two things: If the district court erred by sentencing Alger on two counts arising from a single incident in which he violated the OFP by contacting two people; and whether the court abused its discretion by sentencing him to consecutive terms of imprisonment.
Alger argued his violation did not include harming the victims, but the appeals document stated a person may be subject to multiple sentences even if harm was not an element.
"Alger's reliance on the fact that he did not actually engage in domestic abuse at the hotel misses the point of an OFP," the document states. "By violating the OFP, Alger created a situation in which domestic abuse was more likely to occur. Even if (the victims) were not directly and identifiably injured by Alger's conduct, they were nonetheless victims of his violation."
Alger also argued the violation of the OFP can be prosecuted as criminal contempt, stating it is actually a crime against the court and not against the protected persons. Alger cites no case law suggests violating an OFP does not violate the protected person, but instead relies on his interpretation of the law. The appeals court stated violating an OFP is also criminal contempt and is both an offense against the protected persons and also contempt of court.
The court of appeals stated the district court's imposition of multiple sentences did not exaggerate the criminality of Alger's conduct.
"By contacting two protected parties in violation of the no-contact provisions of an OFP, Alger committed crimes against multiple victims," the document stated. "Therefore, even though the crimes were committed during a single behavioral incident, (state law) did not prohibit the district court from imposing multiple sentences. In addition, because Alger's consecutive sentences do not exaggerate the criminality of his conduct, the district court did not abuse its discretion in sentencing."