STATE оf Minnesota, Respondent, v. Kelvin JACKSON, Appellant.
No. A06-1001
Supreme Court of Minnesota
May 30, 2008
749 N.W.2d 353
I join in the dissent of Justice Meyer.
PAGE, Justice (dissenting).
I respectfully dissent. Like Justice Meyer, “I am unwilling in the name of convenience and judicial efficiency to close my eyes to a procedure that risks influencing the jury‘s decisional process in some degree, however difficult to define or impossible to measure.” (Internal quotation marks and citation omitted.) Therefore, I join Justice Meyer in her dissent.
Lori Swanson, Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for Respondent.
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, Office of the State Public Defender, St. Paul, MN, for Appellant.
PAGE, Justice.
Appellant Kelvin Jackson was convicted of first-degree aggravated robbery in violation of
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 home, 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),
At trial, G.W. described the robbery and assаult. 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” and 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 substаntial 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 questions. 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 durational departure from the high end of the presumptive sentencing guidelines range. Specifiсally, 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, 2007 WL 2245594 (Minn.App. Aug. 7, 2007). We granted review of the sentencing issue.
I.
Jackson argues that the sentencing departure was improperly based on uncharged offenses of third-degree assault 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, 644 N.W.2d at 68 (quoting Minn. Sent. Guidelines I). Accordingly, the “primary relevant sentencing criteria” are the “offense of conviction and the offender‘s criminal history.” Id.
To maintain uniformity and proportionality, departures from the presumptive guidelines sentence are discouraged. Misquadace, 644 N.W.2d at 68; see Minn. Sent. Guidelines I. The grounds provided by the guidelines for departure, “while nonexclusive, are intended to apply to a small number of cases, and each departure must be based on the offensе of conviction rather than charges that were dropped or never alleged.” Misquadace, 644 N.W.2d at 68; see also Minn. Sent. Guidelines II.A.01, cmt., II.D.103, cmt.; Dale G. Parent & Richard S. Frase, Why Minnesota Will Weather Blakely‘s Blast, 18 Fed. Sent‘g Rep. 12, 2005 WL 4001178, at *5 (2005) (noting that early case law reinforced the guidelines commission‘s key policy choices, including that “judges could not enhance a sentence based on offenses for which the defendant had not been charged or for which charges had been dropped“).1 Departures must comport with the guidelines criteria, which cannot be waived even by plea agreement. Misquadace, 644 N.W.2d at 72 (holding that departures from the guidelines “must be supported by substantial and compelling circumstances, and that a plea agreement—standing alone—is not a sufficient basis to depart from the sentencing guidelines“).
In Jackson‘s case, judgment was entered and the enhаnced 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 to 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.
With regard to the zone of privacy, the nonconsensual entry into a dwelling with intent to commit a crime when a person (not an accomplice) is present is first-degree burglary.
II.
Pre-Blakely, when the reasons stated on the record for a departure were improper or inadequate, we independently examined the record to determine whether there was sufficient evidence “to justify departure for legitimate reasons.” State v. Jones, 745 N.W.2d 845, 851 (Minn.2008) (citation omitted). Post-Blakely, unless waived by the defendant, the fact-finding function is performed by the jury. Id. Accordingly, we reverse Jackson‘s enhanced sentence and remand for imposition of the presumptive sentence or, unless waived by Jackson, the empanelling of a resentencing jury to determine the existence of facts in support of legitimate aggravating factors for enhanced sentencing, including sentencing as a career or dangerous offender under
III.
In the interests of judicial economy, we address Jackson‘s argument that a 210-month sentence is disproportionate. This аrgument implicates our decision in State v. Evans, in which we concluded that, generally, upward durational departures should not exceed double the presumptive sentence length. 311 N.W.2d 481, 483 (Minn.1981). Evans was a sentencing appeal related to convictions of aggravated robbery involving different elderly victims and different incidents in November 1980. Id. at 482. The defendant‘s criminal history score was zero, the presumptive sentence under the sentencing guidelines in effect at the time of the offenses for aggravated robbery with a criminal history score of zero was 24 months in prison, and consecutive sentencing was not a departure. Id. Thus, the guidelines permitted a 48-month sentence without departure. Id. The trial court sentenced the defendant to consecutive terms of 15 years each, or a total of 30 years. Id. This court reduced the sentence to 96 months, adopting the standard that “generally in a case in which an upward departure in sentence length is justified, the upper limit will be double the presumptive sentence length.” Id. at 483. We also stated, however, that in “unusually compelling” cases “an even greater degree of departure will be justified.” Id.
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.2 His brief includes charts comparing the 1981 presumptive durations and ranges for serious offenses with the 2007 presumptive durations and ranges for the same offensеs to illustrate the exponential increase in sentence durations by application of the Evans rule. He suggests that the Evans rule is no longer necessary given the wide presumptive sentencing ranges that cover a broader range of criminal conduct than the minimum to constitute the offense. In the alternative, Jackson proposes modifications to the rule, such as limiting any departure to twice the presumptive fixed duration or calculating the departure with a criminal history of zero to avoid “double counting” the offender‘s criminal record.
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, 313 N.W.2d 6, 7 (Minn.1981) (“It would be a rare case which would warrant rеversal of the refusal to depart.“). Departures from the presumptive sentence are justified only when substantial and compelling circumstances are present in the record. State v. McIntosh, 641 N.W.2d 3, 8 (Minn.2002); Minn. Sent. Guidelines II.D. To achieve uniformity and proportionality, whether sentences above the broadened presumptive maximum merit stricter scrutiny is an open question. Appellate courts do have the authority to modify a sentence on many grounds, including that the sentence is inconsistent with statutory requirements,
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 sentеncing practices over the more than 25 years the guidelines have been in effect and makes recommendations to the legislature on various aspects of sentencing.
Reversed and remanded.
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 womаn 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 again 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, 670 N.W.2d 584, 588 (Minn.2003). A sentencing departure must be justified by “substantial and compelling circumstances” in the record that make the facts in the case different from the presumptive sentence, and we have held that it is generally proper for courts to consider that the defendant committed the offense in a particularly serious way in imposing an upward departure. Id. Because the upward departure was not an abuse of discretion, I would uphold the sentence.
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
Notwithstanding 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, 363 N.W.2d 747 (Minn.1985). In that case, the defendant pleaded guilty to aggravated robbery in exchange for the dismissal of other charges, including burglary and assault with a dangerous weapon. Id. at 748. The district court imposed a double upward departure based in part on the fact that the defendant “‘gratuitously inflicted particular cruelty on the victims during the course‘” of the robbery, and the fact that the robbery “was committed in the privacy and security of the victim‘s own home.” Id. at 749. We did not prohibit the court from departing even though the aggravating factors also supported other crimes. To the contrary, we affirmed the sentence because the departure was based on the “facts relating to the conduct underlying the offense to which the defendant pleaded guilty.” Id. at 750. The majority does not articulate any sound basis for a decision to depart from this precedent. I would follow our precedent and affirm.1
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).2 It is well established that gratuitous infliction of pain qualifies as “particular cruelty.” State v. Smith, 541 N.W.2d 584, 590 (Minn.1996) (upholding an upward sentencing departure where the manner in which the defendant committed the robbery included punching the victim into unconsciousness and then kicking him as he lay on the ground); State v. Schantzen, 308 N.W.2d 484, 487 (Minn.1981). Consequently, the district court did not abuse its discretion when it concluded that Jackson‘s gratuitous infliction of pain justified an upward durational sentencing departure, because this conduct demonstrated that Jackson committed the robbery in a particularly cruel way.3
Relying on State v. Misquadace, 644 N.W.2d 65 (Minn.2002), the majority asserts that “[a] departure cannot be based on uncharged criminal conduct.” But consideration of evidence pointing to the defendant‘s guilt of some other uncharged offense is only improper if that evidence “does not support the conclusion that the defendant committed the offense in question in a particularly serious way.” Cox, 343 N.W.2d at 643.
Moreover, Misquadace does not support the majority‘s result. In Misquadace, the issue was whether a plеa agreement, standing alone, could provide a substantial and compelling justification for departure. 644 N.W.2d at 69. Citing Minn. Sent.
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, 384 N.W.2d 449, 450 (Minn.1986), and asserts that had the State charged Jackson with third-degree assault, it would have been improper for the district court to consider Jackson‘s decision to gratuitously inflict substantial bodily harm on the victim. But by holding that it is improper for a district court to consider the beating Jackson inflicted on G.W. when such conduct is either uncharged, as in this case, or charged, as in Norregaard, the majority has effectively eliminated the aggravating factor of particular cruelty, which is expressly recognized in Minn. Sent. Guidelines II.D.b(2).4
Every time a defendant commits the offense of conviction in a manner that gratuitously inflicts bodily harm, the State can arguably charge the defendаnt with some form of assault.
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 robbery,
The result in Norregaard was dictated not by the Guidelines, but by section 609.035. 384 N.W.2d at 450. In this case, by contrast, the legislative decision reflected in section 609.035—that an offender may not be sentenced for separate crimes that arise out of the same behavioral incident—is not at issue. Jackson did not receive two sentences. He received one sentence based on the way in which he committed one crime, aggravated robbery.6
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., 328 N.W.2d 162, 164 (Minn.1983); see also
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, 696 N.W.2d 351, 379 (Minn.2005); Winchell, 363 N.W.2d at 750. But every time a defendant commits a crime within a victim‘s zone of privacy, the State can arguably charge the defendant with burglary.
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 sеntence that could have been imposed had Jackson been sentenced on both burglary 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, 311 N.W.2d 481, 483 (Minn.1981). After describing the legislature‘s recent expansion of the prеsumptive sentencing ranges, the majority concludes that the Evans rule may be “in need of
ANDERSON, G. Barry, Justice (dissenting).
I join in the dissent of Justice Gildea.
DIETZEN, Justice (dissenting).
I join in the dissent of Justice Gildea.