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Dave Roepke, Published September 05 2010

Felony records may be avoided in Best Buy theft ring case

All dozen defendants in a series of inside-job thefts at the Best Buy in Fargo are likely to have a shot at keeping a felony off their records.

Cases are still pending for four defendants, but the three of the 12 who faced either a more serious theft charge or multiple counts have already been sentenced. Even those three can end up without a felony record if they successfully complete probation.

Cass County pro­secutors sought sen­tences sufficient enough to prevent a felony record from bumping down to a misdemeanor for two of those men, ringleader and store security guard Adetimisola Ogundipe and Anthony Martin, who had $20,000 worth of items lifted from Best Buy stored in his mother’s garage.

Ogundipe and another Best Buy security staffer, Paul Larson, allowed their friends and others to take roughly $150,000 in unpaid goods out of the store last fall and winter, police say.

Tanya Johnson Martinez, an assistant Cass County state’s attorney, said while prosecutors wanted longer sentences for Martin and Ogundipe, they respect the judges’ decisions.

“It’s not like $150,000 walked out the door at the same time,” she said.

The saving grace for the defendants – most of whom are in their teens and early 20s and nine who have ties to local collegiate athletic teams – is misdemeanor-by-disposition, a state law that converts most felonies to a misdemeanor after the fact if the pronounced term is one year or less and the convict completes probation without revocation.

A pronounced sentence in­cludes the time a person is actually ordered to serve and the suspended portion of a sentence.

Mark Beauchene, a Fargo defense attorney who represented Martin, said aiming to keep a young client’s record felony free is often a chief goal in criminal defense, a more important issue than how much time is actually spent in jail.

That’s because more than ever, due to easier access to criminal histories, a felon can have great difficulty in finding housing, schooling and employment, he said.

“It will follow you,” Beauchene said.

Johnson Martinez said she wouldn’t discuss what the state’s attorney’s office will recommend in the four cases still pending, which are all set for guilty pleas within the next month.

But it’s unlikely prosecutors will seek pronounced terms longer than a year in any of those four cases, as they’ve tried to keep sentences for Best Buy defendants comparable based on level of involvement. Johnson Martinez said she uses a grid to track sentencing in the cases to try to make fair recommendations.

Fairness is part of the argument Beauchene made while urging Judge Steven McCullough to reject the state’s recommendation of a two-year total sentence for Martin, as well as his cooperation with police and lack of a serious criminal history. After all, the defendant who came up with the idea, Ogundipe, got a total sentence of just 364 days.

Ogundipe’s attorney convinced now-retired Judge Georgia Dawson to limit the length of Ogundipe’s sentence in hopes of avoiding deportation back to Nigeria. The 19-year-old was born there but has lived in the U.S. since he was 2 years old.

In the sentencing hearing, Dawson said she thought the sentence was “a gift.” Ogundipe’s attorney also acknowledged that the punishment was light.

“Maybe he doesn’t deserve it, but he’s only 19. He’s never done anything like this before,” said Jesse Lange, Ogundipe’s lawyer.

Though they will have a crack at felony-free criminal histories, Ogundipe, Martin and Larson are all serving multimonth stays in the Cass County Jail, Johnson Martinez said.

Ogundipe is serving nine months, Larson 100 days and Martin four months, according to court records. None of the three returned phone messages left at the jail seeking comment.

Avoiding being a felon is still going to require staying out of trouble. Most of the men sentenced will be on probation for 18 months, while Martin and Ogundipe will spend two years under supervision.

If they slip up and are found to have violated the terms of their probation, a judge can redo a sentence to give them to as much as the maximum penalty.

“He’ll still have a 10-year sentence hanging over his head,” Beauchene said of Martin.

Readers can reach Forum reporter Dave Roepke at (701) 241-5535