This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-01-595

 

 

State of Minnesota

Respondent,

 

vs.

 

Lloyd Albert Weller,

Appellant.

 

 

Filed October 9, 2001

Affirmed

Randall, Judge

 

Fillmore County District Court

File No. K5-00-391

 

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

Matthew J. Opat, Fillmore County Attorney, P.O. Box 455, Chatfield, MN 55923 (for respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by, Toussaint, Chief Judge, Randall, Judge, and Hanson, Judge.


U N P U B L I S H E D O P I N I O N

R. A. RANDALL, Judge

Appellant was charged in a multi-count complaint and entered into a plea agreement in which he pleaded guilty to first-degree aggravated robbery and theft. The state recommended the presumptive sentence of 58 months, based on a severity-level VII offense and appellant's one criminal history point. The sentencing court upwardly departed from the state's recommendation and sentenced appellant to 120 months in prison. Appellant challenges his sentence, arguing that the sentencing court abused its discretion by upwardly departing because his conduct was no more serious than in a typical case of first-degree aggravated robbery, no trust relationship existed between himself and the victim, and the court's departure deprived him of the benefit of the plea agreement. We agree with appellant in part, but the record supports a finding of gratuitous cruelty and excessive violence over and above the violence inherent in first-degree aggravated robbery. Thus, we conclude that the sentencing court did not abuse its discretion by upwardly departing from the presumptive sentence. Affirmed.

FACTS

Appellant Lloyd Albert Weller was charged by complaint with attempted first-degree murder, attempted second-degree murder, kidnapping, first-degree aggravated robbery, simple robbery, assault, theft, and theft of a motor vehicle based on the facts below.

Appellant became acquainted with the victim about 18 months before the incident occurred. In July 2000, after the victim turned 18, she received $30,000 through her affiliation with the St. Croix Chippewa Indian Tribe. She purchased a new car and she and appellant went on a road trip. They traveled to Canada and Duluth. In Duluth they decided to head south after appellant told the victim about a place where they could watch eagles. Appellant directed the victim toward Eagle Bluff Environmental Learning Center. At the center, appellant and the victim walked down a closed trail to a remote path. When the victim complained that her feet were hurting because of her shoes, they lay down in the grass to rest. Suddenly, appellant begin to strike the victim's face shouting obscenities and calling her a "f--king bitch." The victim tried to escape but was unsuccessful, and appellant continued to strike and hit the victim with repeated blows to her head and face. Appellant finally put the victim in a headlock and squeezed until she became unconscious. As appellant applied pressure with the headlock, he continued to profess his love for her while speaking of death.

When the victim regained consciousness, she found that her hands were tied behind her back and that she had been dragged to another remote location. After struggling for 5-10 minutes she was able to free herself and make it to the center where emergency help was summoned. At the center, the victim discovered that her car, $3,000 in cash, and her identification were missing.

Pursuant to a plea agreement, appellant pleaded guilty to first-degree aggravated robbery and theft. In exchange, the state agreed to drop all other charges and recommend the 58-month presumptive sentence, based on a severity-level VII offense and appellant's one criminal-history point. At the first sentencing hearing, the court declined to accept appellant's plea until it had a chance to further research the sentencing guidelines concerning aggravated robbery cases. The sentencing court later accepted appellant's plea but upwardly departed from the state's recommendation and sentenced appellant to 120 months. The court relied on three aggravating factors to support its upward departure: the particular cruelty appellant used to commit the crime, his abuse of a trust relationship, and the severity of the offense. The court vacated appellant's guilty plea for theft because theft was a lesser-included offense of first-degree aggravated robbery. This sentencing appeal followed.

D E C I S I O N

Appellant argues that the sentencing court abused it discretion by upwardly departing from the guidelines and sentencing him to 120 months. First, appellant asserts that his conduct was no more serious than in a typical case of first-degree aggravated robbery. Second, appellant contends that no trust relationship existed between appellant and the victim. Third, appellant contends that the court deprived him of the benefit of the plea agreement's terms.

It is inaccurate to say that the [sentencing] court has broad discretion in deciding whether or not to depart. A more accurate statement is that the [sentencing] court has broad discretion to depart only if aggravating or mitigating circumstances are present.

State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). If such circumstances are present, we review a sentencing court's decision to depart for an abuse of discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). When a sentencing court considers whether to depart durationally, the court looks at the defendant's conduct and determines if it was significantly more or less serious than is typical in the commission of the crime in question. State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996). Particular cruelty and gratuitous infliction of pain may be considered an aggravating factor supporting a departure. Smith, 541 N.W.2d at 589-90.

I. Appellant's Conduct

Appellant concedes he is guilty of first-degree aggravated robbery, but argues that his conduct, even if cruel, is an element of the crime and cannot be relied on as a basis to depart. Appellant is correct on the law, but not on the facts. The record does support a finding of gratuitous cruelty and excessive violence.

The sentencing court "shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances." Minn. Sent. Guidelines II.D (emphasis added). "The aggravating or mitigating circumstances justifying departure from the presumptive sentence must be present in the record." State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted).

The sentencing court relied on the particular cruelty with which appellant treated the victim as a basis to depart. The court, citing the record before it, reasoned that the victim was beaten viciously and gratuitously, choked to unconsciousness, dragged off the main trail, and left for dead, with her hands tied behind her back.

First-degree aggravated robbery is defined as:

Whoever, while committing a robbery, is armed with a dangerous weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or inflicts bodily harm upon another, is guilty of aggravated robbery in the first degree * * * .

 

Minn. Stat 609.245, subd. 1 (1998) (emphasis added). The amount of bodily harm inflicted on the victim is an element of this crime. "'Bodily harm'" means physical pain or injury, illness, or any impairment of physical condition. Minn. Stat.  609.02, subd. 7 (1998).

This definition does not adequately describe the harm inflicted on the victim in this case. In the complaint, the investigating officer stated that the victim sustained

swollen upper lip with possible small laceration to right underside area; bruising to extent across the front to side area of neck; difficulty in swallowing and movement of her neck; left cheek swollen and numb and an area of approximately 3"x2" of abrasions in the cheek area; left eye completely swollen shut and draining; horizontal laceration on left eyebrow appearing to contain 6 stitches; 1" area of abrasions to chin area; injury resembling a narrow reddened abrasion found at the left side of left wrist, approx. -1" in length.

 

The ambulance report indicated that "she was found to have defecated and urinated." These injuries are indicative of more than just "bodily harm" and approach the level of "great bodily harm," which is defined as:

bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.

 

Minn. Stat. 609.02, subd. 8 (1998).

Given appellant's conduct, the sentencing court did not err in determining that appellant's conduct included gratuitous cruelty, and included violence toward the victim over and above the violence inherent in the commission of typical first-degree aggravated robbery.

The court then went on to reason that appellant's lack of compassion toward the victim and her family, by making no attempt to notify anyone anonymously or otherwise, of the victim's location, justified its upward departure. We disagree with this reasoning as a basis to support an upward departure. It is correct that this type of conduct shows a lack of compassion toward the victim, but that is typical, that is the norm when a defendant commits any egregious crime. It would be highly unusual, close to bizarre, for courts to expect assistance from the "perpetrator" of a crime on behalf of the victim and then, not filing it, penalize a defendant over and above the presumptive sentence "for not being a Good Samaritan."

There is nothing unusual or atypical about a defendant's failure to make an anonymous telephone call to notify the authorities of the victim's location. If a criminal did perform such an act, it would be unusual. It might be part of an argument supporting a downward departure (that is not our issue and we do not speak to it), but it generally does not happen during the normal course of a felony.

II. Trust Relationship

The sentencing judge also reasoned that a trust relationship between appellant and the victim existed, and concluded that that relationship also supports its decision to impose an upward departure. Appellant argues that while a trust relationship is a recognized reason for a sentencing departure, no trust relationship existed between appellant and the victim. To support this argument, appellant relies on several cases illustrating that a perpetrator must be in a position of authority over the victim before a trust relationship can exist. See, e.g., State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990) (stating church youth worker abused position of trust by abusing child).

We agree with appellant on this issue. Appellant did not have a position of authority over the victim. His "status" with the victim was a dating relationship. The sentencing court relied on the dating relationship between appellant and the victim to find that appellant abused a trust relationship. A dating relationship, without more, is not the type of trust abuse envisioned by the sentencing guidelines. Any dating relationship, by definition, between two adults involves some indicia of "trust." If this became the standard, we would see upward departures every time a defendant and a victim knew each other and had dated.

We disagree with the sentencing court that appellant's "abuse of trust" in a dating relationship between appellant and the victim was another aggravating factor justifying an upward departure from the presumptive sentence.

Our decision to affirm the upward departure is based solely on concluding that the district court properly found gratuitous cruelty and excessive violence.

III. Benefit of the Bargain

Appellant argues that the sentencing court deprived him of the benefit of the plea bargain. In support of this argument, appellant relies on State v. Lubitz, 472 N.W.2d 131, 133 (Minn. 1991), where the sentencing court assigned a severity-level ranking that was reflective of a charge that was dismissed by a plea bargain rather than the charge to which the defendant pleaded guilty. Appellant contends that the court imposed its sentence based on the attempted intentional second-degree murder charge, which the state dropped as part of the plea agreement.[1] He asserts that this deprived him of the benefit of the plea bargain and punished him for conduct for which he was convicted.

We disagree. Appellant correctly analyzed Lubitz, but the case is distinguishable. First, the sentencing court in Lubitz assigned the wrong severity-level ranking, which did not occur in this case. In the plea-bargain agreement, appellant pleaded guilty to a severity-level VII offense and had a criminal-history score of 1. The sentencing court, in basing its sentence on that agreement, found that

this is a severity level seven offense [and] you have one criminal history point, that the presumptive Minnesota Guidelines sentence in this case is a * * * period of fifth-four to sixty-two months, nominally [the sentence would be] fifty-eight months.

The sentencing court may depart when aggravating circumstances are present and may generally make a durational departure that is double the maximum presumptive sentence duration listed in the sentencing guidelines. State v. Williams, 608 N.W2d 837, 840 (Minn. 2000). Under the guidelines, the sentencing range for a level VII offense is 54 to 62 months. A sentence within this range is not considered a departure. Minn. Sent. Guidelines II.C. (stating sentence outside presumptive duration range constitutes departure from guidelines). Accordingly, the sentencing court could have doubled appellant's sentence to 124 months if it found sufficient aggravating circumstances.

Second, in Lubitz the defendant was sentenced based on conduct associated with dismissed charges. Appellant contends that like Lubitz, the court imposed a sentence based on the dropped charge of attempted intentional second-degree murder and thereby deprived him of the benefit of his plea bargain. Here, the sentencing court stated in unequivocal terms that

the amount of violence which accompanied the robbery is in this Court's opinion far above and beyond that which would normally be considered to be part of an aggravated robbery.

 

We agree with this statement by the district court. That statement did not refer to the dismissed charges, but rather directly referred to the aggravated robbery, which is the conviction at issue.

Appellant's argument that he did not benefit from the plea bargain is unsupported by the record. The court accepted the plea bargain that included the dismissal of several charges, including the extremely serious charges of attempted second-degree murder and kidnapping, and included an agreement by the prosecuting attorney to recommend the presumptive sentence of 58 months for first-degree aggravated robbery. The plea bargain specifically called for certain charges to be dropped, which they were, and for the prosecuting attorney to make a nonbinding sentence recommendation to the court, which he did. The court, being free to reject the proposed 58 months, did so and then went on to sentence appellant to an upward departure of 128 months. The sentencing judge included an explanation on particular cruelty, and on that basis (and that only) the record supports the upward departure.

Appellant did not lose the benefit of his plea bargain. He received the benefit of several dismissed charges, and he received the benefit of a favorable recommendation from the prosecuting attorney. Some plea bargains call for the defendant to be able to withdraw a guilty plea if the court does not accept the prosecutor's recommendations and some plea bargain's don't. This plea bargain did not include a provision that the defendant could withdraw his guilty plea if the sentencing judge overrode the state's favorable recommendation on length. Thus, the court was free to depart upward if it could establish a proper basis. On the issue of gratuitous cruelty, it did. The record reflects that appellant, in return for the dismissal of certain charges and a favorable recommendation as to sentencing length, accepted the risk that the sentencing judge might scour the record for a bona fide reason to depart upward. That happened, but from all we can see in the record, appellant received the benefit of his plea bargain.

Affirmed.



[1] Appellant claims that his sentence is reflective of attempted intentional second-degree murder but refers to the guideline range for unintentional second-degree murder. Appellant was charged with attempted intentional second-degree murder with a sentencing range of 319 to 333 months. Minn. Sent. Guidelines IV.