Tucker v. State, 799 N.W.2d 583

Tucker pleaded guilty to second-degree unintentional felony murder during a second-degree felony assault; sentence of 225 months upward departure from presumptive 128-180 months.
Plea included two aggravating factors: invasion of victim’s privacy and particular cruelty for failing to render aid.
Plea agreement waived Blakely jury rights; district court imposed 225-month sentence.
Postconviction court and court of appeals both addressed the validity of the departure basis; appellate remand occurred.
This Court reversed and remanded, holding particular cruelty based on failure to render aid was impermissible and the zone-of-privacy basis was improper.
The concurrence argues failure to aid constitutes an uncharged offense and cannot support an upward departure; further potential statutory considerations discussed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether departure based on particular cruelty was proper	Tucker: cruelty grounds valid; failure to aid could be cruel	State: cruelty justification supports departure	Not proper; cruelty grounds invalid for this departure
Whether failure to render aid can support particular cruelty	Tucker: failure to aid constitutes particular cruelty	State: asserts failure-to-aid supports cruelty	Not a valid basis for upward departure; alone cannot support
Whether the zone-of-privacy departure was improper	Tucker: zone-of-privacy reason improperly relied on	State: considered as part of departure	Reason improper; (zone-of-privacy) rejected as sole basis for departure
Whether failure-to-aid facts constitute admissible additional facts under Rourke	Tucker: additional facts do not support increased sentence	State: argues additional facts justify departure	Not enough to justify departure; cannot rely on uncharged conduct
Whether the record permits remand for resentencing	Tucker seeks remand due to improper departure	State assents to correction	Remand to postconviction court for proper disposition

State v. Jackson, 749 N.W.2d 353 (Minn. 2008) (upward departures require identifiable substantial and compelling reasons; misapplication leads to reversal)
State v. Misquadace, 644 N.W.2d 65 (Minn. 2002) (guideline departures discouraged; need substantial reasons)
State v. Rourke, 773 N.W.2d 913 (Minn. 2009) (particular cruelty requires factors not reflected in verdict/plea and substantial compensating reason)
State v. Jones, 745 N.W.2d 845 (Minn. 2008) (discussion of substantial/criminality equivalence and departure grounds)
State v. Jones, 328 N.W.2d 736 (Minn. 1983) (failure to obtain medical care as basis for cruelty depends on context)
State v. Stumm, 312 N.W.2d 248 (Minn. 1981) (upward departure based on cruelty and indifference following beating)
State v. Ming Sen Shine, 326 N.W.2d 648 (Minn. 1982) (illustrative cruelty cases)
State v. Traylor, 641 N.W.2d 335 (Minn.App. 2002) (upheld departure based on cruelty; distinguishable facts)
State v. Stumm, 312 N.W.2d 248 (Minn. 1981) (cruelty concepts discussed)
State v. Edwards, 774 N.W.2d 596 (Minn. 2009) (limitations on using uncharged conduct for departure)