This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-99-1654

 

State of Minnesota,

Respondent,

 

vs.

 

Derick Dwayne Glover,

Appellant.

 

Filed June 6, 2000
Affirmed
Amundson, Judge

 

Ramsey County District Court
File No. K099928

 

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

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence W. Pry, 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

†††††††††††

††††††††††† Appellant challenges his sentence for first-degree burglary, arguing that his 175-month sentence, a less-than-double upward departure, was not supported by substantial and compelling circumstances.† Because we conclude that appellantís agreement to a sentencing cap of 175 months, as well as the presence of aggravating circumstances, both support the sentence, we affirm.

FACTS

†††††††††††

††††††††††† On March 25, 1999, Derick Glover violated an order for protection which prohibited him from having any contact with his estranged wife, V.M, when he went to her motherís house.† Glover and V.M. got into an argument.† Glover beat V.M. and she ran from the house to her sisterís house just a few blocks away, yelling for someone to call 911.† Glover pursued V.M. as she entered her sisterís house, but she and her sister were able to push him out the front door and lock him outside.† Glover then went to another door, broke the glass in the door and forced it open.† Glover began hitting V.M. in the face, striking her more than fifteen times, and causing her lip to split and her face to swell.† He then punched her in the stomach.† V.M., five months pregnant, fell to the ground and Glover kicked her more than five times in the abdomen and then pushed her down the basement stairs.† Glover then left the house and was arrested a short time thereafter.

††††††††††† Glover pleaded guilty to first-degree burglary. As part of the plea agreement, the state had agreed not to pursue a sentence in excess of 175 months.† At the plea hearing, the district court sentenced Glover to 175 months in prison, a sixty-three month upward durational departure from the presumptive sentence, citing aggravating factors in addition to Gloverís agreement to the sentencing cap.† This appeal followed

D E C I S I O N

 

††††††††††† The presumptive sentence for first-degree burglary in violation of Minn. Stat. ß 609.582, subd. 1(c) (1998), with Gloverís criminal history score is 104 to 112 months.† Minn. Sent. Guidelines IV.† A sentencing court may depart from the presumptive sentence under the guidelines only if the case involves substantial and compelling circumstances.† Minn. Sent. Guidelines II.D.† A district courtís decision to depart from the sentencing guidelines will not be reversed on appeal absent an abuse of discretion.† State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).† ďA sentencing court should consider whether the defendantís conduct was significantly more or less serious than that typically involved in the commission of the crime in question.Ē† Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996) (quotation omitted.† If aggravating factors are present, a sentencing court has broad discretion to depart from the sentencing guidelines.† State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).†

The sentencing court cited four reasons for its upward departure from the sentencing guidelines:

(1)  Glover violated an order for protection which required him to have no direct or indirect contact with the victim;

(2)  The victim was five months pregnant at the time of the assault;

(3)  Children were present and witnessed the assault.

(4)  Glover pleaded guilty and agreed to a 175-month sentencing cap

 

I.† OFP Violation

 

††††††††††† Generally, violation of a restraining order while committing the charged offense is a valid reason for an upward departure.† State v. Coley, 468 N.W.2d 552, 556 (Minn. App. 1991).

††††††††††† Glover argues that his violation of the OFP was an improper reason for departure because, in this case, it did not make his conduct more serious than that of a typical burglary and assault. But here, Glover did not just enter a home without permission and commit an assault, he did so knowing a court had specifically intervened to order him to have no contact with V.M., regardless of the location.† Accordingly, the sentencing courtís departure on this basis does not constitute an abuse of discretion.

II.† Pregnant Victim

††††††††††† During the incident, Glover punched V.M. in the stomach, causing her to fall to the ground.† Once on the ground, Glover, knowing V.M. was five months pregnant, kicked her at least five times in the stomach and then pushed her down the basement stairs.†††

††††††††††† Glover contends that the mere fact that a victim is pregnant is insufficient to justify departure.† Rather, Glover contends the pregnancy must render the victim ďparticularly vulnerableĒ and that there must be evidence that he actually exploited this vulnerability to commit the crime.†

††††††††††† This court has concluded that a victim was particularly vulnerable because she was seven months pregnant.† State v. Davis, 540 N.W.2d 88, 91-92 (Minn. App. 1995), review denied (Minn. Jan. 31, 1996).† Here, V.M.ís pregnancy of five months was known to Glover.† Therefore, we conclude the sentencing courtís upward departure on this basis was not an abuse of discretion.

III.† Presence of Children

††††††††††† Commission of an offense in the presence of a child is an aggravating factor warranting upward departure.† State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982) (ďcommitting the offense in front of the children was a particularly outrageous act and that while the children were not technically victims of the crime, they were victims in another senseĒ).

††††††††††† Glover contends that domestic assault is, by its very nature, likely to occur in the presence of children and therefore it does not make the commission of this offense more serious than other similar offenses.† Additionally, Glover argues that this case is distinguishable because the child who witnessed the assault was the partiesí fifteen-year-old son, not a young child.

††††††††††† Gloverís argument is similar to arguing that the court cited a factor constituting an element of the offense as a reason for its departure.† See, e.g., State v. Hines, 343 N.W.2d 869, 873 (Minn. App. 1984) (stating that a sentencing court is not allowed to make an element of the offense a reason for departure). The courts have not so normalized this criminal and destructive behavior as to include it as an element of the offense.† Instead, it is an aggravating factor that the sentencing court properly relied on in imposing an upward durational departure.†

IV.† Negotiated Agreement

A defendant may relinquish his right to be sentenced under the Minnesota Sentencing Guidelines.† Givens, 544 N.W.2d at 776 (Minn. 1996).† But such a waiver must be knowing, intelligent, and voluntary.† Id.At his plea hearing, Glover pleaded guilty to first-degree burglary with a sentencing cap of 175 months.† Glover contends that this does not constitute an agreement that he would receive a sentence of 175 months, thus he argues he did not waive his right to be sentenced under the guidelines.† But under the agreement, Glover knew that he could receive precisely the sentence imposed by the sentencing court.† Gloverís agreement to enter a plea of guilty with a 175-month cap on sentencing in combination with other compelling circumstances supports the district courtís upward departure.

††††††††††† Affirmed.

 



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