State v. Petersen, 799 N.W.2d 653

Gatson offered Petersen money to punch S.L. in the stomach to cause miscarriage of the unborn child; the punch led to a baby being born alive and later dying.
Petersen pleaded guilty to intentional second-degree murder and first-degree assault as part of a plea agreement that included an upward durational departure based on alleged victim vulnerability and cruelty.
District court sentenced Petersen on December 1, 2009, pursuant to the plea agreement, expressly relying on the negotiated departure grounds.
Appellant challenged the sufficiency of the factual basis for the intent required for second-degree intentional murder and the propriety of the upward departure.
The court held the act caused the death of a human being and there was a sufficient factual basis for the intent; the upward departure was supported by the record and the plea.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there a sufficient factual basis for intent to kill under second-degree murder?	Petersen argues lack of intent to kill a person.	Petersen argues intent to kill the unborn child, not a person.	Yes; the record shows intent to kill a child and the natural consequences support this.
Was the upward sentencing departure justified by the record?	Petersen contends departure was solely due to the plea.	State argues aggravating factors support departure beyond the plea.	Yes; aggravating factors (particularly vulnerability) justify the upward departure.
Was Petersen's Blakely waiver issue properly preserved and analyzed?	Petersen challenged the waiver of a Blakely hearing.	State contends waiver issue was not properly raised in opening brief.	Waived; the issue is not addressed on the merits.

State v. Soto, 378 N.W.2d 625 (Minn. 1985) (concerning the birth status of a fetus for homicide statutes)
State v. Merrill, 450 N.W.2d 318 (Minn. 1990) (unborn child homicide statute context)
State v. Ecker, 524 N.W.2d 712 (Minn. 1994) (requires factual basis for guilty plea to fit charge)
State v. Theis, 742 N.W.2d 643 (Minn. 2007) (plea must be accurate, voluntary, intelligent; factual basis required)
State v. Cooper, 561 N.W.2d 175 (Minn. 1997) (recognizes natural and probable consequences standard for intent)
State v. Williams, 361 N.W.2d 840 (Minn. 1985) (general guidance on review standards in plea-related departures)
State v. Misquadace, 644 N.W.2d 65 (Minn. 2002) (substantial and compelling circumstances needed for negotiated departure)
State v. Geller, 665 N.W.2d 514 (Minn. 2003) (abuse of discretion standard for sentencing departures)
State v. Dettman, 719 N.W.2d 644 (Minn. 2006) (Blakely waiver requirements for upholding enhanced sentence)
State v. O’Brien, 369 N.W.2d 525 (Minn. 1985) (aggravating factors may justify departure when present)
State v. Hester, 796 N.W.2d 328 (Minn. 2011) (statutory construction; identifiability of intent in homicide)