Lead Opinion
OPINION
Aрpellant Kelvin Jackson was convicted of first-degree aggravated robbery in violation of Minn.Stat. § 609.245, subd. 1 (2006), following a jury trial in Ramsey County. The district court sentenced Jackson to an executed term of 210 months, a double durational upward departure from the high end of the range for the presumptive sentence under Minnesota’s Sentencing Guidelines. The court of appeals affirmed. Concluding the departure was impermissibly based on uncharged criminal conduct, we reverse and remand for resentencing.
On Sunday, November 6, 2005, at 8:45 p.m., Maplewood police were dispatched to a residence on a home invasion robbery and assault. Upon arrival, they found the homeowner, 67-year-old G.W., bleeding profusely from head wounds. G.W. told them that a man and a woman had forced their way into his hоme, assaulted him, and stolen his property. Earlier that day, around 9:30 a.m., a woman had come to G.W.’s residence, asking to use his phone because she had car trouble. G.W. allowed her to use the cordless phone in the kitchen, but when she walked into the living room, G.W. told her to return to the kitchen because his wife was sleeping. G.W. believed the woman involved in the nighttime robbery was the same woman who had used his phone in the morning.
The police investigation led to Jackson, who resided in an apartment building a short distance from G.W.’s residence. Two officers went to Jackson’s residence, arriving approximately three hours after the robbery, and made contact with Jackson and his girlfriend Rachel West. After a
Jackson was initially charged with one count of first-degree aggravated robbery (armed with a dangerous weapon), Minn. Stat. § 609.245, subd. 1 (2006), and a second count of first-degrеe aggravated robbery (inflicts bodily harm upon another), id. Shortly before trial, the complaint was amended to add second-degree aggravated robbery, Minn.Stat. § 609.245, subd. 2 (2006); and for the heart attack, first-degree assault, Minn.Stat. § 609.221, subd. 1 (2006).
At trial, G.W. described the robbery and assault. He had been home alone watching TV when he answered a knock on the door. He recognized the woman he had seen earlier that day, and, as he opened the door, a man “rushed in and cracked” him on the eye with what he thought was a handgun. According to G.W., the man struck him on the head several more times as he fell to the floor, landing on his stomach. The man then pinned him to the floor, took his wallet, and directed the woman to take various items from his home to their car. When they were finished, the man told him to “stay there for ten minutes” аnd threatened to come back and shoot him if he failed to comply. G.W. made an in-court identification of Jackson as the assailant. Also, at trial, a medical consultant involved in G.W.’s care at the hospital testified that G.W.’s head injuries fit within the legal definition of substantial bodily harm.
At the close of the State’s case, the district court granted Jackson’s motion for judgment of acquittal of the first-degree assault charge. The jury subsequently found Jackson guilty of the remaining charges. After the guilt phase of the trial concluded, for purposes of sentencing, the jury was instructed to answer three questions submitted by special verdict form: (1) did the aggravated robbery occur in G.W.’s home; (2) did G.W. sustain multiple blows to the head; and (3) did G.W. sustain an orbital fracture. After a short deliberation, the jury returned with affirmative answers to all three quеstions. At sentencing, the district court imposed an executed sentence of 210 months for first-degree robbery (armed with a dangerous weapon). The sentence was a double du-rational departure from the high end of the presumptive sentencing guidelines range. Specifically, the court based the departure on the severity of the victim’s injuries and the invasion of the victim’s zone of privacy.
Jackson appealed, challenging an evidentiary ruling, the sufficiency of the evidence in support of the conviction, and the propriety of the enhanced sentence. The court of appeals affirmed. State v. Jackson, No. A06-1001,
I.
Jackson argues that the sentencing departure was improperly based on uncharged offenses of third-degree аssault and burglary. Generally, we review a dis
The purpose of the Minnesota Sentencing Guidelines is to “establish rational and consistent sentencing standards which reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender’s criminal history.” Misquadace,
To maintain uniformity and proportionality, departures from the presumptive guidelines sentence are discouraged. Misquadace,
In Jackson’s case, judgment was entered and the enhanced sentence imposed on the conviction for aggravated robbery while armed with a dangerous weapon. The departure from the presumptive guidelines sentence was based on the nature of the victim’s injuries and commission of the crime in the victim’s zone of privacy, his home. Regarding the nature of the injuries, the State presented expert evidence that the orbital fracture amounted tо substantial bodily harm; and the jury was asked to find, and did find, that the victim sustained an orbital fracture. The infliction of substantial bodily harm is third-degree assault. Minn.Stat. § 609.223 (2006). A departure cannot be based on uncharged criminal conduct. Misquadace,
With regard to the zone of privacy, the noncоnsensual entry into a dwelling with intent to commit a crime when a person (not an accomplice) is present is first-degree burglary. Minn.Stat. § 609.582, subd. 1(a) (2006). The fact that the offense takes place in a dwelling elevates the crime to a higher grade than it would otherwise be. Compare id., subd. 2(a)(1) (burglary of a dwelling), with id., subd. 3 (burglary of a building). The crime of burglary “carries with it some special risks to life and is not therefore purely a property offense.” State v. Hodges,
II.
Pre-Blakely, when the reasons stated on the record for a departure wеre improper or inadequate, we independently examined the record to determine whether there was sufficient evidence “ ‘to justify departure’ for legitimate reasons.” State v. Jones,
III.
In the interests of judicial economy, we address Jackson’s argument that a 210-month sentence is disproportionate. This argument implicates our decision in State v. Evans, in which we concluded that, generally, upward durational departures should not exceed double the presumptive sentence length.
Jackson argues that the guidelines sentencing system has changed considerably over the past 27 years, increasing dramatically the presumptive duration of sentences for serious offenses. He calls attention to the presumptive sentencing ranges that now extend 20 percent above the presumptive fixed sentence.
If a jury finds facts that support a departure from the presumptive sentence, the court may exercise discretion to depart but is not required to depart. Minn. Sent. Guidelines II.D.; see State v. Kindem,
As for the Evans doubling rule, it may be that the rule is in need of serious reevaluation, but we question whether this court is, at this time, the proper forum for doing so. This is especially true in light of the fact that the Guidelines Commission has collected and analyzed information on actual sentencing practices over the more than 25 years the guidelines have been in effect and makes recommendations to the legislature on various aspects of sentencing. Minn.Stat. § 244.09, subd. 6 (2006). We believe, in the first instance, that the continued efficacy of the Evans departure rule, if any, is a question morе properly addressed by the Commission.
Reversed and remanded.
Notes
. Dale G. Parent served as the Executive Director of the Minnesota Sentencing Guidelines from its inception in September 1978 until May 1982. The guidelines went into effect in May 1980. Richard S. Frase is the Benjamin N. Berger Professor of Criminal Law at the University of Minnesota Law School. Parent & Frase, supra,
. Under the sentencing guidelines, sentences are determined by use of a grid system. Minn. Sent. Guidelines IV. The vertical axis on the grid tracks the severity of the offense, while the horizontal axis tracks the offender’s criminal history. To determine the proper sentence to be imposed in any given case, a sentencing court locates the cell on the grid that corresponds to the offense level and the offender’s criminal history. Not counting the cells applicable to relatively minor offеnses, each cell on the grid contains three different numbers. The lowest number is the minimum guidelines sentence for that particular cell, the highest number is the maximum guidelines sentence, and the middle number is what might be referred to as the “presumptive fixed sentence.” Originally the presumptive sentencing range for an aggravated rob-beiy with a criminal history score of zero (which was the situation in Evans,
. The dissent asserts that our interpretation of the sentencing guidelines system eliminates aggravating sentencing factors of particular cruelty and zone of privacy. We believe the dissent reads the majority too broadly. The jury in this case was not asked to find particular cruelty beyond a reasonable doubt. See, e.g., Kevin S. Burke, State v. Dettman: The End of the Sentencing Revolution or Just the Beginning?, 33 Wm. Mitchell L.Rev. 1331, 1342-43 (2007) (noting issues in defining "cruelty” for sentencing juries). As for zone of privacy, cases referencing burglaries of dwellings have involved particular cruelty. E.g., State v. Winchell,
Dissenting Opinion
The majority interprets Minnesota’s sentencing system in a manner that effectively eliminates the well-established aggravating sentencing factors of particular cruelty and zone of privacy. The majority’s interpretation is inconsistent with our precedent and it has significant and adverse effects on the criminal justice system. I respectfully dissent.
This action arises from the brutal beating and robbery of a 67-year victim, G.W., in his home. The record reflects that on November 6, 2005, a young woman came to G.W.’s home in the morning hours, claiming car trouble and asking to use his telephone. G.W. agreed to help the woman, took her into his home, and let her use the telephone. After using the phone, the young woman left, only to return agаin that evening.
When G.W. saw the same young woman at his door, he opened it only to be met by Jackson, who “rushed in and cracked [G.W.] on the left eye” with what appeared to be a handgun. Jackson proceeded to hit G.W. on the right side of the forehead and the jaw, and then more times on the head. After G.W. fell to the floor, Jackson knelt on his back, took his wallet, and directed that the woman retrieve guns that G.W. kept in his home.
As a result of the beating, G.W. suffered a severe laceration on the right side of his head and the orbital socket of his left eye was “blown out,” meaning that Jackson fractured G.W.’s eye socket as well as the bones directly underneath his left eye. When the police arrived, they found G.W. bleeding profusely from the wound on his head, and he had to be taken to the hospital by ambulance.
Based on the jury’s factual findings that Jackson inflicted multiple blows to G.W.’s head, fractured the orbital socket around his left eye, and committed the robbery inside G.W.’s home, the district court imposed an aggravated sentencing departure of 210 months. At the sentencing hearing, the court articulated that it was imposing an aggravated departure because “the crime was committed within [G.W.’s] zone of privacy” and because of “the injuries inflicted.” The majority holds that the district court erred. I disagree. The abuse of discretion standard controls our review of a district court’s decision to impose a sentencing departure. Taylor v. State,
I.
The district court’s decision to depart upward on a sentence for aggravated robbery in the first degree, committed with a dangerous weapon, based on the severe injuries inflicted and invasion of the victim’s zone of privacy is consistent with our
Notwithstаnding the precedent discussed above, the majority holds that it was improper for the district court to consider Jackson’s decision to commit the robbery (the offense of conviction) in a manner that inflicted gratuitous pain on the victim and in a way that invaded the victim’s zone of privacy because this conduct supports the uncharged offenses of third-degree assault and burglary. I disagree.
In my view, the departure in this case is consistent with the double upward departure we affirmed in State v. Winchell,
A. Particular Cruelty
The Guidelines provide that there may be departures from presumptive sentences where “there exist identifiable, substantial, and compelling circumstances.” Minn. Sent Guidelines II.D. While the list of aggravating factors does not purport to be exhaustive, importantly for purposes of this case, one factor specifically listed as a basis for upward departure is where “[t]he victim was treated with particular cruelty for which the individual offender should be held responsible.” Minn. Sent. Guidelines II.D.b(2).
Relying on State v. Misquadace,
Moreover, Misquadace does not support the majority’s result. In Misquadace, the issue was whether a plea agreement, standing alone, could provide a substantial and compelling justification for departure.
Nothing we said in Misquadace called into question the well-established principle set forth above that the district court is permitted to depart based on the way in which the offense is committed. In addition, the concerns regarding plea negotiations at issue in Misquadace and “alleged, but unproven, behavior” articulated in Minn. Sent. Guidelines cmt. II.A.01 are not implicated in this case because Jackson did not plead guilty and the sentencing jury found that the State proved the aggravating sentencing factors beyond a reasonable doubt.
The majority also relies on State v. Norregaard,
Every time a defendant commits the offense of conviction in a manner that gratuitously inflicts bodily harm, the State can arguably charge the defendant with some form of assault. Minn.Stat. §§ 609.221-24 (2006). According to the majority, if the State fails to charge the defendant with assault, the sentencing court cannot consider the defendant’s gratuitous infliction of physical injury. Yet, if the State charges and convicts the defendant of as
Moreover, Norregaard does not compel the rule the majority writes today, and I would not interpret Norregaard in a manner that effectively rewrites the Guidelines. In Norregaard, the State charged the defendant with both aggravated rоbbery, Minn.Stat. § 609.245 (2006) (robbery accompanied by infliction of “bodily harm”), and third-degree assault, Minn.Stat. § 609.223 (2006) (assault involving infliction of “substantial bodily harm”).
The result in Norregaard was dictated not by the Guidelines, but by section 609.035.
The majority’s conclusion that section 609.035 prohibits the beating from being used to aggravate the sentence of aggravated robbery would mean that the legislature intended that statute to nullify the particular cruelty departure provision in the Guidelines. The legislature did not provide for the nullification of the particular cruelty departure ground in the text of section 609.035. And our implication of such a nullification would be inconsistent with our obligation to give effect to all legislative enactments. See Owens v. Federated Mut. Implement & Hardware Ins.,
B. Zone of Privacy
The majority’s analysis of the zone of privacy factor is also flawed. It is well established that departures from the presumptive sentence are appropriate where a defendant invades the zone of privacy that surrounds the victim’s home. See State v. Blanche,
The majority also seems to conclude that a departure is not appropriate based on the invasion of the zone of privacy because “punishment is allowed for both the burglary and the crime committed in the dwelling,” and because the aggravated sentence imposed in this case is greater than the sentence that could have been imposed had Jackson been sentenced on both burglаry and aggravated robbery. The majority argues “that the guidelines do not contemplate enhanced sentences based on uncharged criminal conduct that would be far greater than what would otherwise be permitted based on charged criminal conduct.” Had Jackson been given consecutive sentences, assuming he was charged and convicted with aggravated robbery and burglary, the presumptive sentence would have been 162 months. Because 210 months is apparently “far greater” than 162 months, the majority seemingly concludes that the district court erred. But the 162-month sentence is not an aggravated sentence; it is the presumptive sentence. The majority’s analysis does not take into account that even in the hypothetical it poses the State could seek a departure based on the way in which the crimes were committed. Thus, in my view, it is not proper to conclude that an aggravated sentence is unlawful because it exceeds the presumptive sentence. If that were the law, there would no such thing as an aggravated sentence, and again this would write provisions out of the Guidelines, something that it is not within the province of this court to do.
II.
In the interests of judicial economy, the majority considers Jackson’s argument that this court should reconsider the Evans rule, which limits upward durational sentencing departures to twice the presumptive sentence unless there are “unusually compelling” circumstances. See State v. Evans,
. The majority contends that it is not creating a new rule and attempts to find support for this conclusion in a law review article's position about what the Guidelines provide. But the article the majority cites specifically departs from the rule the majority writes today by noting that courts "could depаrt on the basis of non-charged offenses if the defendant admitted them on the record.” Dale G. Parent & Richard S. Frase, Why Minnesota Will Weather Blakely’s Blast, 18 Fed. Sent’g Rep. 12,
. The legislature may modify the Guidelines, but it has taken no action to cast doubt on the Guidelines' inclusion of the particular cruelty departure ground. See Minn.Stat. § 244.09, subd. 11 (2004) (noting that modifications to the Guidelines shall be submitted annually to the legislature and that such modifications "shall be effective * * * unless the legislature by law provides otherwise”).
. Although the sentencing jury was not specifically asked if Jackson committed the offense with "particular cruelty,” the jury was asked to find facts about the injuries the victim suffered. The district court appropriately used those facts as the basis to depart. See State v. Cox,
. The majority also cites State v. Simon,
. Jackson does not assert that the "particular cruelty” aggravating factor violates his constitutional rights.
. Jackson was convicted of two counts of aggravated robbery, but consistent with section 609.035, the district court imposed sentence on only one count.
. This reading is consistent with other provisions in the statute wherein exceptions are provided to the prohibition against multiple sentences. See Minn.Stat. § 609.035, subd. 2 (providing for consecutive sentences).
. Jackson makes no claim that the charging decisions at issue in this case were discriminatory.
Dissenting Opinion
(dissenting).
I join in the dissent of Justice Gildea.
Dissenting Opinion
(dissenting).
I join in the dissent of Justice Gildea.