Richard W. TAYLOR, Appellant, v. STATE of Minnesota, Respondent.
No. C5-02-746.
Supreme Court of Minnesota.
Nov. 6, 2003.
670 N.W.2d 584
ANDERSON, RUSSELL A., Justice.
IT IS HEREBY ORDERED that we stay this appeal, retain jurisdiction over the case, and remand to the postconviction court for it to conduct an evidentiary hearing and issue findings and conclusions with respect to the trial court‘s handling of notes one and two as well as when Mckenzie and/or his counsel first knew or should have known about the issues raised by the handling of those two notes. Mckenzie shall, within 60 days of entry of the resulting order from the postconviction court, move this court to dismiss or vacate the stay of the appeal. If either party wishes to appeal the decision of the postconviction court, that party shall file and serve in this court a supplemental brief not to exceed seven pages within 60 days after the order dismissing or vacating the stay. The other party shall file and serve its brief, similarly limited in length, in this court 45 days thereafter.
BY THE COURT:
/s/Alan C. Page
Associate Justice
Susan J. Andrews, Assistant State Public Defender, Theodora Gaitas, Assistant State Public Defender, Minneapolis, MN, for Appellant.
OPINION
ANDERSON, RUSSELL A., Justice.
Appellant Richard Taylor entered a guilty plea to criminal sexual conduct in the first degree, in violation of
Taylor was charged by complaint with one count of first-degree criminal sexual conduct for engaging in sexual contact with a three-year-old child who was enrolled in a daycare program operated by Taylor‘s wife in the family home. The charged count alleged that one incident of criminal sexual misconduct occurred on March 16, 2001. Taylor pleaded guilty as charged.1 During the factual basis inquiry portion of the plea hearing, through leading questions posed by the state, Taylor admitted that he rubbed his penis on the child‘s genital area and ejaculated onto a towel. He also admitted that “this hap
At sentencing, the state moved for a departure from the 144-month presumptive executed sentence to 180 months; and Taylor, a first-time offender, argued for a dispositional departure. The district court sentenced Taylor to an executed term of 180 months, citing as reasons for the departure multiple incidents of abuse, violation of a position of trust and particular vulnerability of the victim due to age. Taylor‘s sentence also included a five-year conditional release term, restitution and a fine. Taylor challenged the durational departure through postconviction proceedings, seeking a reduction of his sentence to the presumptive 144-month term. The postconviction court denied relief. On appeal, the court of appeals affirmed. We granted review.
I.
Minnesota has a commission-based sentencing guidelines system, the goals of which currently are to assure public safety, promote uniformity and proportionality in sentencing, provide greater honesty or “truth in sentencing,” and coordinate sentencing practices with correctional resources.
The sentencing guidelines are represented by a grid, currently with eleven categories of offense severity levels for the offense of conviction on the vertical axis and seven offender criminal history scores on the horizontal axis. Minnesota Sentencing Guidelines IV. The presumptive guidelines sentence is usually located in the cell of the guidelines grid where the offender‘s criminal history score and offense severity level intersect. Id. II.C. As a general rule, the guidelines contemplate that offenders with similar criminal backgrounds who are convicted of similar crimes receive similar sentences; and offenders with more extensive criminal records who commit the most serious and violent offenses receive the greater sentences.
Initially, the guidelines ranked first-degree criminal sexual conduct as a severity level eight offense with a presumptive executed sentence of 43 months for an offender with a zero criminal history score. Minnesota Sentencing Guidelines IV, V (1980). In 1989, in response to public pressure for substantially increased penalties, the guidelines commission doubled sentence durations at severity levels seven and eight for first-time offenders and in
Prior to August 1, 1994, however, the offense of which Taylor was convicted was a variety of second-degree criminal sexual conduct.
In 2000, the legislature amended the first-degree criminal sexual conduct statute to provide for a minimum presumptive sentence of 144 months, or 12 years. Act of April 3, 2000, ch. 311, art. 4, § 2, 2000 Minn. Laws 211 (codified at
“Underlying the [g]uidelines is the notion that the purposes of the law will not be served if judges fail to follow the [g]uidelines in the ‘general’ case.” State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981). Accordingly, courts may depart from the guidelines only when substantial and compelling circumstances are present. Id. (citing Minnesota Sentencing Guidelines II.D.); see also State v. McIntosh, 641 N.W.2d 3, 8 (Minn.2002) (substantial and compelling circumstances must be present to warrant departures from the presumptive guidelines sentence). “Substantial and compelling circumstances” are those circumstances that make the facts of a particular case different from a typical case. State v. Peake, 366 N.W.2d 299, 301 (Minn.1985)
II.
Here, the district court concluded there were three aggravating factors warranting an upward departure: (1) “multiple incidents of abuse,” (2) abuse of a position of trust and (3) victim vulnerability. It is generally proper for the court to consider the conduct underlying the charge of which the defendant is convicted; but reliance on other offenses that are not part of the charge and of which the defendant was not convicted is not a permissible basis for durational departure. State v. Peterson, 329 N.W.2d 58, 60 (Minn.1983) (citing State v. Hagen, 317 N.W.2d 701, 703 (Minn.1982), and State v. Barnes, 313 N.W.2d 1, 3 (Minn.1981)); cf. State v. Simon, 520 N.W.2d 393, 394 (Minn.1994) (explaining that court may not base durational departure from presumptive sentence on evidence that defendant could have been convicted of uncharged offense); State v. Arnold, 514 N.W.2d 801, 802 (Minn.1994) (stating that court cannot deprive defendant of guilty plea bargain by relying on underlying conduct supporting dismissed charge). To use prior uncharged sex offenses would amount to improper sentencing for crimes of which the defendant was not convicted. State v. Chase, 343 N.W.2d 695, 697 (Minn.App. 1984) (citing Peterson, 329 N.W.2d at 60 and State v. Brusven, 327 N.W.2d 591, 593-94 (Minn.1982)).4
It is true, as the dissent indicates, that in certain criminal sexual conduct cases, multiple acts of sexual contact and penetration have served as aggravating factors for enhancement purposes; but in those cases the various acts of sexual abuse were a part of the offense of which the defendant was charged and convicted. E.g., State v. Heinkel, 322 N.W.2d 322, 324 (Minn.1982) (victim forced to submit to various types of sexual contact and penetration over two-hour period); State v. Martinez, 319 N.W.2d 699, 700 (Minn.1982) (over two-hour period, victim compelled to engage in various types of sexual contact and penetration, culminating in ejaculation onto her body). If, however, the evidence “only supports defendant‘s guilt of some other offense but does not support the conclusion that the defendant committed the instant offense for which he is being sentenced in a particularly serious way, then it cannot be relied upon as a ground for departure.” State v. Ott, 341 N.W.2d 883, 884 (Minn.1984) (citations omitted); State v. Northard, 348 N.W.2d 764, 769 (Minn.App.), rev. denied (Minn. Sept. 5, 1984) (explaining that uncharged offense cannot justify a departure). Ac
Similarly, the victim‘s vulnerability both as to age and the defendant‘s position of authority or trust were inappropriate bases for departure where those facts were already taken into account by the legislature in determining the degree of seriousness of the offense. Hagen, 317 N.W.2d at 703 (explaining that age and position of trust unavailable as departure factors for criminal sexual contact with child under age of 13 and actor is 36 months older); see also Peterson, 329 N.W.2d at 60 (stating that youth and position of authority impermissible grounds for departure from presumptive sentence for first-degree criminal sexual conduct); State v. Johnson, 327 N.W.2d 580, 583 (Minn.1982) (explaining that it is unfair to consider age for departure purposes when offense contains an age element). The legislature has set absolute vulnerability for the offense involved here at 13 years, and we are not inclined to tamper with that. It is true that in State v. Partlow, 321 N.W.2d 886 (Minn.1982), we noted “the absolute vulnerability of the 2-year, 10-month-old victim” would justify “an aggravation of sentence.” Id. at 887, n. 1. But Partlow also involved particular cruelty and was decided 20 years ago, during the early stages of the determinate guidelines system in which “real time” sentences revealed relatively short terms typically served and the presumptive term for first-degree criminal sexual conduct was 43 months. Here, although Taylor‘s conduct was reprehensible and regrettable, we cannot say that it was an atypical first-degree offense warranting a durational departure from the statutory presumptive 12-year term.
Certainly it is the legislature that defines the conduct that constitutes a criminal offense and fixes the punishment. State v. Olson, 325 N.W.2d 13, 17-18 (Minn.1982) (citing State v. Meyer, 228 Minn. 286, 37 N.W.2d 3 (1949)). But we are charged with the responsibility of ensuring that the punishment “is not inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate or not warranted by the findings of fact issued by the district court.”
In conclusion, for this case, we hold that the departure from the statutory presumptive minimum executed sentence was improper. Accordingly, Taylor‘s executed sentence is reduced to 144 months, the statutory presumptive minimum term.
Affirmed as modified.
MEYER, Justice (dissenting).
I respectfully dissent. I would hold that the district court erred in relying on two of the three aggravating factors to support an upward departure in Taylor‘s sentence, and remand for reconsideration of the departure in light of the remaining factor.
I would analyze this case under our well-accepted principle of appellate review that a district court‘s sentencing departure is evaluated for an abuse of discretion. See State v. Thao, 649 N.W.2d 414, 421 (Minn. 2002) (stating decision to depart from presumptive sentence is within district court‘s discretion if substantial and compelling reasons are articulated); State v. Misquadace, 644 N.W.2d 65, 68 (Minn.2002) (stating district court‘s decision to depart will not be disturbed absent abuse of discretion); State v. Pickett, 358 N.W.2d 38, 39 (Minn.1984) (stating decision to depart is for the trial court to exercise). This discretion is no mere formality. As with evidentiary issues, the trial judge “sits with a unique perspective on all stages of a case, including sentencing, and the trial judge is in the best position to evaluate the offender‘s conduct and weigh sentencing options.” State v. Hough, 585 N.W.2d 393, 397 (Minn.1998).
Here, I concur with the majority‘s view that two of the factors—the age of the victim and the abuse of a position of trust—were impermissible reasons for departure. I would not conclude, however, that the multiple incidents of abuse that occurred in this case cannot support an upward departure.
The complaint against Taylor noted that the victim in this case, three-year-old L.E.P., disclosed that Taylor‘s assaults on her had “happened more than one time.” The majority offers a number of reasons why Taylor‘s admission of multiple incidents of abuse cannot support an upward departure. The decision notes that a sentencing court may not rely upon offenses that do not form the basis of a conviction. See, e.g., State v. Hagen, 317 N.W.2d 701, 703 (Minn.1982). Similarly, the majority asserts that a durational departure may
This last reason is the easiest to dismiss. Arnold involved a defendant charged with five offenses committed during three robberies. 514 N.W.2d at 801. One of the robberies involved an allegation that Arnold had sexually touched the victim during the crime. Id. Arnold entered into a plea bargain in which he admitted to the robberies in exchange for dismissal of the sex offense charge, a charge that he had consistently denied. Id. In sentencing Arnold, the trial court departed upward and based the departure on the allegation Arnold had sexually touched a victim during the robbery. 514 N.W.2d at 802. The situation in Arnold, then, was one where the trial court impermissibly relied upon a dismissed allegation—the dismissal of which was part and parcel of the plea bargain.
Such a scenario is obviously not the case here. Unlike Arnold, during his plea hearing Taylor admitted to another earlier incident. It was therefore no mere unproven allegation, as was the case in Arnold. Moreover, our concern in Arnold centered around the fact that the trial court‘s action essentially deprived Arnold of the benefit of his plea bargain. Arnold at 801-02. Here, Taylor received a sentence within the range he bargained for.
The majority‘s reliance on State v. Peterson is similarly misplaced. In Peterson, the defendant was charged with criminal sexual conduct, and Spreigl evidence was introduced to show that Peterson had used his position of authority to induce young people to have sexual contact with him. 329 N.W.2d 58, 59 (Minn.1983). In sentencing Peterson, the trial court imposed consecutive, rather than concurrent, sentences. Id. The trial court stated on the record that the consecutive sentence was permissible because Peterson had used his position of authority to induce both the victim of the charged offense and the victims of the Spreigl offenses. Id. We reversed, stating that “in relying on the Spreigl offenses, the trial court relied on other offenses with which defendant apparently was not charged and of which defendant was not convicted.” Id. at 60.
Taylor‘s case is dissimilar. In contrast to the facts set forth in Peterson, proof of Taylor‘s earlier criminal sexual conduct was provided not by untested, uncharged, possibly disputed Spreigl evidence relating to victims other than L.E.P., but instead by Taylor‘s own admission at his plea hearing that he had assaulted L.E.P. on more than one occasion.
A third case relied upon by the majority, State v. Simon, is also inapposite. In Simon, the defendant pled guilty to second-degree assault after shooting his victim. Simon, 520 N.W.2d at 393-94. Second-degree assault, however, contains two statutory provisions, one of which is less severe than the other as it does not include the element of substantial bodily harm. Id. at 394. See also
In reversing, we noted that we disapproved of the state‘s actions and indicated that prosecutors were not free to circum
There is no allegation that undercharging is what occurred here. Certainly L.E.P.‘s allegation appears in the complaint, but there is no contention before us that Taylor could have been convicted of both crimes. Taylor was not charged under a different statutory provision that considers multiple incidents as an element, nor could he have been. That provision,
The majority correctly notes that generally “the sentencing court may not consider evidence that points to the defendant‘s guilt of some other offense but does not support the conclusion that the defendant committed the instant offense, for which he is being sentenced.” State v. Cermak, 344 N.W.2d 833, 837 (Minn.1984); see also State v. Ott, 341 N.W.2d 883, 884 (Minn.1984). However, this does not necessarily suggest that the sentencing judge‘s reliance on the prior uncharged assault was improper. If the defendant admits to the underlying conduct, a sentencing court may generally consider the course of conduct underlying an offense including uncharged conduct “in order to reach the conclusion that the defendant‘s conduct was sufficiently serious to justify the departure.” Cermak, 344 N.W.2d at 838. In this case, Taylor admitted to committing the earlier assault. The uncharged assault involved the same victim and the same behavior, and occurred within approximately a month of the second assault. These facts are sufficient to permit consideration of the earlier assault as part of Taylor‘s course of conduct. It seems ironic and incongruent that by today‘s holding we allow for upward durational departures for multiple penetrations of one victim over the course of several hours, while barring upward durational departures for admitted sexual contact of one victim occurring on separate days.
Accordingly, I would hold that an upward durational departure was appropriate, but would remand and direct the district court to reconsider the sentence without regard to the factors of age of the victim and the abuse of a position of trust.
BLATZ, Chief Justice (dissenting).
I join in the dissent of Justice Meyer.
Notes
THE COURT: To the charge from Ramsey County, criminal sexual conduct in the first degree, with a maximum sentence of thirty years and/or a fine of forty thousand dollars, on March 16, 2001, how do you plead, guilty or not guilty.
THE DEFENDANT: Guilty.
The state did not charge Taylor with the earlier incident but did refer to it in the probable cause portion of the complaint.Q. Mr. Taylor, how many times has this happened?
A. Twice.
Q. When was the second or other incident?
A. I don‘t know.
Q. Was it within a month of this one?
A. Probably within a month.
Q. Where did that one happen?
A. Same bathroom.
Q. Was the behavior the same as—
A. Yes.