State v. GlaratonState v. Glaraton
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- Before:
- Kelley
This аppeal presents the issue whether the court of appeals erred when it vacated a 240-month sentence following respondent’s conviction of criminal sexual conduct in the first dеgree. The original sentence imposed by the trial court represented a departure slightly more than four times the maximum presumptive sentence duration provided in the Minnesota Sentenсing Guidelines (58 months when offense was committed by one having a criminal history of 1). We hold the court of appeals properly affirmed the respondent’s conviction; but we hold it erred in ruling that the deрarture was excessive. Therefore, we modify the decision of the court of appeals by reinstating the sentence imposed by the trial court.
On October 28, 1986, the victim, a 15-yeaiM)ld boy, was in ninth grade. Respondent had just turned 18 and was a school dropout. As the victim walked home after basketball practice respondent, whom he did not know, stopped him and asked the time. After the victim replied, respondent pulled out a pistol (it looked like a .22 caliber pistol but after respondent’s arrest it was determined in fact to be an unloaded air pistol for shooting BB’s). He then started threаtening the victim with the pistol, saying he had killed 20 people with it and might shoot the victim. As they ap
The victim ran home immediately and told his parents that he had been “raped” by a “faggot.” The parents called thе police who, shortly thereafter, arrested respondent as he was walking a short distance away. Initially respondent denied that he assaulted anyone. The victim meanwhile was taken to thе hospital, where he received treatment for his cuts. One of these apparently was a permanently disfiguring cut.
Later, at trial, respondent admitted that he had physically assaulted the victim but denied that the assault had any sexual component. However, when being examined at the state security hospital at St. Peter, he admitted that he had raped the victim, saying that he did it because he was upset with his girl friend and wanted to take out his anger on someone.
Under the Minnesota Sentencing Guidelines, the presumptive sentence would be 54 (50-58) months in prison, given respondent’s criminal history scorе of one (based on his juvenile record). The trial court imposed the statutory maximum for the offense under
In affirming the conviction but holding that the departure was excessive, the court of appeals pointed to the fact that the people who examined respondent at St. Petеr stated that they did not think respondent was a “patterned sexual offender.”
State v. Glaraton,
No. C9-87-893 (Minn. App. filed Feb. 16, 1988) (unpublished opinion) [available on WESTLAW, 1988 WL 10452]. It likewise noted that although respondent had a criminal history scоre of one, his 240-month sentence was the same as the one imposed on a compulsive sex offender having a criminal history score of two in
State v. Herberg,
324 N.W.2d 346 (Minn.1982). In vacating the sentence and remanding for rеsentencing, the majority mandated that the trial court consider mitigating factors and also clearly indicated that the trial court could not reimpose a 240-month sentence because thе sentence
Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the Sentencing Guidelines maximum presumptive sentence duration. State v. Evans, 311 N.W.2d 481, 483 (Minn.1981). But when the aggravаting circumstances are severe, the doubling limit of Evans does not apply. State v. Stumm, 312 N.W.2d 248, 249 (Minn.1981). Whether severe aggravating circumstances are present is a decision which, “[i]n the final analysis * * * must be based on our collective, collеgial experience in reviewing a large number of criminal appeals from all the judicial districts.” State v. Norton, 328 N.W.2d 142, 146-47 (Minn.1983). 1
In the instant case the respondent stuck the gun in the victim’s mouth and in his rectum, causing the victim to think that he was going to die a horrible death. The victim was also subjected to multiple acts of penetration. Respondent inflicted gratuitous physical injury (including, apparently, a permanent scar) and psychological injury (perhaps of a permanent nature). Additionally, he urinated on the victim’s face and made him lie face down in the urine; and ridiculed his religious beliefs. We conclude, as we did in Herberg under similar circumstances, that severe aggravating circumstances were present and that therefore a departure of greater than two times the presumptive sentence duration by thе trial court was justified.
In State v. Mortland, 399 N.W.2d 92, 94 n. 1 (Minn.1987), we made it clear that when, as here, severe aggravating circumstances are present, the only absolute limit on sentence duration for the offense is that provided by the legislаture in the statutory definition of the offense. This, of course, does not mean that when severe aggravating circumstances are present the trial court should automatically impose the maximum sentence permitted for the offense. As we said in State v. Evans, 311 N.W.2d 481, 483 (Minn.1981), when we adopted the general doubling limit, “this is only an upper limit and we do not intend to suggest that trial courts should automatically double the presumptivе sentence length in all cases in which upward departure is justified nor do we suggest that we will automatically approve all departures of this magnitude.” Similarly, while the statutory maximum is the upper limit on sentence length that applies in cases in which severe aggravating circumstances are present, trial courts should not automatically impose the statutory maximum each time severе aggravating circumstances are present. Moreover, appellate courts should not automatically affirm all sentences imposing the statutory maximum even though some severe аggravating circumstances may exist. Therefore, if the facts support the conclusion that the 240-month sentence was excessive, the decision of the court of appeals panel should be affirmed.
However, because we conclude that the court of appeals panel holding was based primarily on failure to consider the trial court record as a whole, we disagree with its holding that
State v. Herberg,
324 N.W.2d 346 (Minn.1987) is controlling. As indicated, the court of appeals felt respondent’s sentence should be less than Her-berg’s because respondent had a criminal history score of one and is not a compulsive
Accordingly, we hоld that the court of appeals panel correctly affirmed respondent’s conviction, but that it erred in holding the sentencing departure to be excessive. Therefore, we reversе and reinstate the sentence imposed by the trial court.
Notes
. Relevant cases in which we have upheld greater than double durational departures include: State v. Hatton, 409 N.W.2d 854 (Minn.1987); State v. Mortland, 399 N.W.2d 92 (Minn.1987); State v. VanGorden, 326 N.W.2d 633 (Minn.1982); State v. Herberg, 324 N.W.2d 346 (Minn.1982); State v. Stumm, 312 N.W.2d 248 (Minn.1981).
Among the decisions of the court of appeals, see State v. Mesich, 396 N.W.2d 46 (Minn.App.1986), petition for review denied (Minn.1987) [cited favorably in State v. Mortland 399 N.W.2d 92, 94 at n. 1 (Minn.1987) ].