This opinion will be unpublished and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

C6-00-1092

 

State of Minnesota,
Respondent,

vs.

Daniel Larry Bronson,
Appellant.

 

Filed January 30, 2001

Affirmed

Crippen, Judge

 

Polk County District Court

File No. K5991152

 

 

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

 

Wayne H. Swanson, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, 525 Second Street S.E., Milaca, MN 56353 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Crippen, Presiding Judge, Foley, Judge,* and Holtan, Judge.**

U N P U B L I S H E D   O P I N I O N

 

CRIPPEN, Judge

 

            Appellant challenges a 360-month sentence, involving an upward departure from the sentencing guidelines, which the trial court justified on at least three bases.  Concluding that the sentencing departures are justified by the trial court’s recitation of severe aggravating circumstances, we affirm.

FACTS

            On a plea of guilty, the trial court convicted appellant Daniel Bronson of criminal-sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subds. 1(c), 2 (1998); burglary in the first degree in violation of Minn. Stat. § 609.582, subd. 1(c) (1998); and attempted murder in the first degree in violation of Minn. Stat. §§ 609.17, subd. 1, 609.185(1) (1998).  In exchange for appellant’s plea, the court dismissed the remaining counts against him, which included one count of attempted murder in the second degree; one count of assault in the first degree; one count of assault in the second degree; one count of criminal-sexual conduct in the first degree; and two counts of attempted criminal-sexual conduct in the first degree.

            All of appellant’s convictions arose out of an attack on K.A. at her place of employment.  Appellant came up behind the victim, who was alone, struck her many times with an ice/snow scraper, sexually attacked her, and delayed seeking medical attention for her despite her many pleas for help.

There were several severe aggravating circumstances that the trial court used as bases for the upward sentencing departures. The court found that appellant had gratuitously inflicted serious physical harm on the victim: even after K.A. fell to the floor, appellant continued to strike her, causing her to suffer multiple lacerations to the scalp measuring 63 centimeters in length and a non-displaced fracture of the left temporal lobe.  Appellant also took advantage of the victim’s vulnerability by attacking her while she was alone and sexually assaulting her after she was seriously injured.  In addition, there is evidence that appellant randomly chose K.A. as his victim, and that, as a result of the attack, she suffers from severe emotional harm.  The trial court further found that appellant planned the attack by surveillance of the site beforehand to make sure the victim was alone and by sneaking up behind her with his shoes off so that she would not hear his approach.  Finally, appellant feigned insanity in an effort to avoid conviction for his crimes and at no time since the attack has he shown any remorse for the crimes. Based on these circumstances, the trial court concluded that appellant should be sentenced to 360 months, regardless of how it was achieved, explaining “there [are] a number of different ways, * * * [to] get to that figure” and it intended “to utilize each and every one of those aspects” in its sentencing order.

The court first imposed a 360-month sentence for attempted first-degree murder, by applying subdivisions 1 and 2 of the patterned and predatory sexual-offender statute.  Under subdivision 1,[1] the court doubled the presumptive sentence for attempted murder from 180 to 360 months.  Under subdivision 2,[2] the court determined that the statutory maximum, otherwise set at 240 months, would be 360 months, as allowed by the subdivision.[3]

The next two bases that the court used to arrive at a 360-month sentence were premised on the severe aggravating circumstances of the case.  Under the first approach of the two, the trial court sentenced appellant using a combination of upward durational departures and a consecutive sentencing departure.  Under this sentencing plan, the court imposed the statutory maximum of 240 months for attempted first-degree murder, which constituted an upward departure of 60 months, and a consecutive sentence of 120 months for first-degree burglary, which constituted a 72-month upward departure.

The court’s second severe-circumstances approach entailed sentencing appellant to a 360-month term for first-degree criminal-sexual conduct—a double durational departure—along with a 120-month concurrent sentence for first-degree burglary. 

The court justified the durational departures on five of the severe aggravating circumstances that it found: (a) gratuitous infliction of serious physical injuries/particular cruelty; (b) multiple forms of criminal-sexual conduct; (c) particular vulnerability; (d) infliction of serious psychological harm; and (e) commission of multiple crimes.  The court then based the consecutive-sentence departure on the four remaining aggravating factors – the random nature of the crimes, the planning of the crimes, the lack of remorse, and feigning insanity to avoid conviction.  Even though the trial court did not make such a determination, its findings also suggest support for a 360-month sentence for criminal-sexual conduct in the first degree under Minn. Stat. § 609.108, subd. 1.[4]

D E C I S I O N

A departure from the sentencing guidelines rests within the trial court’s discretion, and the reviewing court will not reverse the trial court’s departure absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). This court will not substitute its own judgment for that of the trial court regarding sentencing matters.  State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994).  A trial court may depart both durationally and with respect to consecutive sentencing if severe aggravating circumstances are present.  State v. Williams, 608 N.W.2d 837, 840 (Minn. 2000).  If severe aggravating circumstances exist, the only absolute limit on the departure is the statutory maximum sentence.  Perkins v. State, 559 N.W.2d 678, 692 (Minn. 1997).

Here, the trial court has appropriately identified the severe aggravating circumstances that justify either the 360-month sentence for criminal-sexual conduct in the first degree with the 120-month concurrent sentence for first-degree burglary or the 240-month term for attempted first-degree murder plus the 120-month consecutive sentence for first-degree burglary.  See Minn. Sent. Guidelines II.D.2(b) (providing a nonexclusive list of appropriate factors that may be used for departure); see also Perkins, 559 N.W.2d at 692 (reviewing precedents demonstrating aggravating factors sufficient for major departures).

Appellant suggests that the trial court failed to make separate findings for each sentencing departure.  See Williams, 608 N.W.2d at 841 (requiring the trial court to separately identify the aggravating factors that support each sentencing departure).  Although the court explained its separate bases for imposing durational departures and consecutive sentencing, it did not specifically provide separate justification for each major offense.  But the court’s findings make it clear that the aggravating circumstances apply to either sentencing theory.

Adding impact to the trial court’s identification of aggravating circumstances, we observe that appellant was sentenced pursuant to an open-plea agreement that provided the state would request a sentence of no more than 30 years.  The supreme court has held that a plea bargain calling for a departure may be used as grounds for departure.  State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996).  Although appellant did not waive his right to be sentenced under the guidelines and requested at the sentencing hearing that there be no deviation from the guidelines, he was aware that he might be sentenced to a maximum of 30 years in accordance with the plea agreement.

Because there is abundant evidence supporting the upward durational departures for both the attempted-murder and first-degree burglary convictions, and given the overlap of the five severe aggravating circumstances between burglary and appellant’s crimes against the person,[5] we conclude that the law does not compel further efforts by the trial court to delineate separate grounds for the concurrent burglary departure.

Concluding as we do that the trial court’s sentence must be upheld on its recitation of severe aggravating circumstances, we have no occasion here to fully explore whether the 360-month sentence could have been imposed under the patterned and predatory sex-offender statute, either for first-degree attempted murder or for first-degree criminal-sexual conduct.

Affirmed.

 

 



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

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

[1]  Minn. Stat. § 609.108, subd. 1 (1998) provides:

 

Subdivision 1. Mandatory increased sentence. (a) A court shall commit a person to the commissioner of corrections for a period of time that is not less than double the presumptive sentence under the sentencing guidelines and not more than the statutory maximum, or if the statutory maximum is less than double the presumptive sentence, for a period of time that is equal to the statutory maximum, if:

(1) the court is imposing an executed sentence, based on a sentencing guidelines presumptive imprisonment sentence or a dispositional departure for aggravating circumstances or a mandatory minimum sentence, on a person convicted of committing or attempting to commit a violation of section 609.342[first-degree criminal-sexual conduct], 609.343, 609.344, or 609.345, or on a person convicted of committing or attempting to commit any other crime listed in subdivision 3 if it reasonably appears to the court that the crime was motivated by the offender’s sexual impulses or was part of a predatory pattern of behavior that had criminal sexual conduct as its goal;

(2) the court finds that the offender is a danger to public safety; and

(3) the court finds that the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release.  The finding must be based on a professional assessment by an examiner experienced in evaluating sex offenders that concludes that the offender is a patterned sex offender.  The assessment must contain the facts upon which the conclusion is based, with reference to the offense history of the offender or the severity of the current offense, the social history of the offender, and the results of an examination of the offender’s mental status unless the offender refuses to be examined.  The conclusion may not be based on testing alone.  A patterned sex offender is one whose criminal sexual behavior is so engrained that the risk of reoffending is great without intensive psychotherapeutic intervention or other long-term controls.

(b) The court shall consider imposing a sentence under this section whenever a person is convicted of violating section 609.342 or 609.343.

Id.

[2] Minn. Stat. § 609.108, subd. 2 (1998) provides:

 

Subd. 2. Increased statutory maximum.  If the factfinder determines, at the time of the trial or the guilty plea, that a predatory offense was motivated by, committed in the course of, or committed in furtherance of sexual contact or penetration, as defined in section 609.341, and the court is imposing a sentence under subdivision 1, the statutory maximum imprisonment penalty for the offense is 40 years, notwithstanding the statutory maximum imprisonment penalty otherwise provided for the offense.

Id.

[3] Each of the trial court’s determinations required fulfilling at least three conditions of the predatory-sexual-offender statute.  First, at the time of the plea, the trial court enlarged the statute’s application under subdivision 2 by a determination, not objected to by appellant, that the attempted-murder charge was a predatory crime and “was motivated by, committed in the course of, or committed in furtherance of sexual contact or penetration.”  See Minn. Stat. § 609.108, subd. 2.  Although it is undisputed that first-degree murder is a predatory crime, neither subdivision 2 nor subdivision 3 expressly states that attempted first-degree murder is a predatory crime.  But under subdivision 1, the trial court determined that appellant qualified as “a person convicted of committing or attempting to commit” a predatory crime that was motivated by “the offender’s sexual impulses,” a conclusion that was not disputed at the sentencing hearing.  See Minn. Stat. § 609.108, subd. 1. 

The court found, second, that appellant was a “danger to public safety” and, third, that appellant was a “patterned sex offender,” which is defined by the statute as “one whose criminal sexual behavior is so engrained that the risk of reoffending is great without intensive psychotherapeutic intervention or other long-term controls.”  Id. subd. 1(a)(2)–(3).  The trial court based the last determination on a licensed psychologist’s assessment as mandated by the statute.  See id., subd. 1(a)(3).  Appellant disputes the trial court’s last finding, arguing that not only did the psychologist fail to specifically classify him as a “patterned sex offender,” but also, because appellant has no history of violent or sexual crimes, the psychologist failed to state that appellant’s criminal-sexual behavior was “so engrained.”

[4] Because the statutory maximum for first-degree criminal-sexual conduct is 360 months and, thus, not larger than appellant’s sentence, there is no need to determine whether the statutory maximum may be enlarged under Minn. Stat. § 609.108, subd. 2.  Moreover, under subdivision 1, criminal-sexual conduct in the first degree is a legitimate basis for doubling the presumptive sentence without a showing by the court that

it reasonably appears * * * the crime was motivated by the offender’s sexual impulses or was part of a predatory pattern of behavior that had criminal sexual conduct as its goal.

Minn. Stat. § 609.108, subd. 1(a)(1).  Subdivision 1(a)(1) provides for application of the subdivision on (a) “a person convicted of committing or attempting to commit” a criminal sexual offense or (b) “on a person convicted of committing or attempting to commit any other [predatory crime]” if the crime was motivated by the offender’s sexual desire or part of a predatory pattern as stated above.  Id.  Still at issue, however, is the court’s application of the statute to appellant under subdivision 1(a)(3), where there remain questions as to the sufficiency of the evidence in concluding that appellant is a “patterned sex offender.”  See supra note 3.

[5] For example, included in the list of aggravating circumstances, the trial court found that two forms of burglary were involved and that appellant had committed unusually severe crimes during the course of those burglaries.