This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-99-1172

 

State of Minnesota,

Respondent,

 

vs.

 

William Joseph Netz,

Appellant.

 

Filed May 23, 2000

Affirmed

Amundson, Judge

 

Anoka County District Court

File No. K699495

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent)

 

John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Amundson, Presiding Judge, Randall, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

 

AMUNDSON, Judge

 

            On appeal from an 108-month sentence for first-degree burglary, appellant argues that a double upward departure based on the dangerous and repeat felony offender statute unduly exaggerated the criminality of his conduct—the daytime entry into an unoccupied dwelling that appellant left as soon as the homeowner returned.  We affirm.

FACTS

 

On January 12, 1999, at approximately noon, Appellant William Netz entered the unoccupied home of Tracy Chapman, who was out running errands at the time.  He began removing some items from the home to the vehicle he was using, which he had parked in the driveway.

Shortly thereafter, Chapman returned and saw the unfamiliar vehicle parked in the driveway.  Assuming it was someone with her husband, who often came home for lunch, Chapman entered the partly open door and became alarmed when she noticed that the kitchen was empty and that her dog was lying on the floor near a pool of urine.  Chapman called out “Hello” and a voice from her bedroom responded “hello.”  Netz emerged from the bedroom, walked toward Chapman, and asked her if she lived there.  She responded “yes” and he walked past her and out the door.  Chapman went to call the police, but found all the phones to be unplugged and piled on the bed.  She then ran out the door, watched Netz walk to his car and pack snow around the license plate, covering the numbers and letters.  When Netz got into the car, Chapman ran to it and, after wiping the snow from the plate, wrote down the license plate number.

Chapman then ran to a neighbor’s house, called the police, and returned to her house where she discovered three rifles and approximately $480 in cash missing.  Police arrived, began to investigate and found that the license plate of the vehicle Netz was driving was registered to Netz’s stepmother.

Later that day, Netz’s young stepsister found the stolen rifles in the basement of her house—where Netz slept when he was staying at his stepmother’s house.  Police identified Netz’s fingerprint on a box of ammunition that was left at the Chapman house.  The homeowners recovered almost all of what was taken in the burglary.

Netz was charged and convicted of first-degree burglary.  This was his fifth burglary and eighth felony conviction in 15 years.  At sentencing, the state moved for sentencing under Minnesota’s Dangerous and Repeat Felony Offender statute.  Minn. Stat. § 609.1095, subd. 4.  Netz moved for a dispositional departure of probation and chemical dependency treatment, or alternatively, for sentencing according to the Minnesota Sentencing Guidelines, which, given the severity of the offense and Netz’s criminal history score, was a presumptive sentence of 55 to 59 months.  Netz was sentenced under the Dangerous and Repeat Felony Offender statute to a total of 108 months (72 months in prison and 36 months supervised release).  This appeal followed.

D E C I S I O N

The decision to depart from the sentencing guidelines rests within the sentencing court’s discretion and will not be disturbed on review absent a clear abuse of that discretion.  State v. Munger, 597 N.W.2d 570, 572 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999). Netz was sentenced under Minnesota's Dangerous and Repeat Offender statute, which provides:

Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct. 

               

Minn. Stat. § 609.1095, subd. 4 (1998).   The presumptive sentence for first-degree burglary with Netz’s criminal history score of 6, is 55-59 months.  The statutory maximum for this offense is 240 months.

At the sentencing hearing, the district court noted that Netz had seven prior felonies, noted his pattern of committing property offenses, and found Netz to be a career offender.  In addition to his career offender status, the district court also cited several aggravating factors on which it based its upward departure.  Specifically, the court cited the victim’s vulnerability, the invasion of the victim’s home, and the theft of firearms. 

I.

The sentencing court’s conclusion that Netz was a career offender and thus subject to an upward durational departure under the statute was based on his prior convictions.  Not only do Netz’s prior convictions meet the statute’s requirement that he have five or more prior felony convictions, but they also evince a pattern of criminal conduct.  Netz had three convictions for second-degree burglary, a conviction for third-degree burglary, three convictions for receipt of stolen property and one conviction for aggravated robbery.   Netz’s convictions, coupled with the present offense of first-degree burglary, evidence a pattern of criminal conduct, specifically, a pattern of committing property crimes. 

II.

Netz argues that the sentencing court had no basis for imposing an upward departure because it was a daytime burglary of an unoccupied dwelling and when the homeowner returned he immediately left.  Netz contends that because his conduct was less egregious than the norm, the departure should be reversed and the case should be remanded for sentencing.  See State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984) (when determining whether to impose an upward departure in sentencing, the district court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question”).  Here, the sentencing court noted the victim’s vulnerability, the invasion of the victim’s home, and the theft of firearms as aggravating factors.

Among the departure factors included in the guidelines is the exploitation of a victim’s vulnerability.  The guidelines state that when a defendant commits a crime against a victim who is “particularly vulnerable due to age, infirmity or reduced physical * * * capacity, which was known” to the defendant, the district court may depart upward when imposing the sentence.  Minn. Sent. Guidelines II.D.2.b.(1)

            The sentencing court cited the vulnerability of the victim as an aggravating factor.  The court stated:

[e]ven though the victim was not at home when you first went in to the residence, the victim, who was a woman, came in there, while you were in the premises.  Thank God you didn’t hurt her at all.

 

 The sentencing court implies that the victim was vulnerable because she was a woman who walked in on a man committing a burglary.  This is not a sufficient basis for a finding of particular vulnerability under the guidelines, and accordingly is not a valid reason for departure.

            The sentencing court cited the invasion of the victim’s home as an aggravating factor justifying upward departure.  But a sentencing court is not allowed to make an element of the offense a reason for departure.  See State v. Hines, 343 N.W.2d 869, 873 (Minn. App. 1984).   The statute prohibits entering a dwelling without consent and with the intent to commit a crime.  Minn. Stat. § 609.582, subd. 1(a) (1998).  Invasion of another’s dwelling is an element of the offense; thus the district court improperly used this as an aggravating factor.  Additionally, the offense of first-degree burglary is not complete merely upon the entry into a dwelling of another; the defendant must also commit a crime while in the dwelling.  Here, Netz’s crime was theft.  Thus the theft of the firearms cannot be used as an aggravating factor.

            While we are troubled by the district court’s use of the gender of the victim, the invasion of the victim’s home, and the theft of firearms as aggravating factors sufficient to justify imposition of an upward departure, the district court’s imposition of the upward departure is proper under the career offender statue.  Accordingly, we affirm.

 

Affirmed.

 

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.