This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Tracy Ann Pletschett,
Clearwater County District Court
File No. K701257
John Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Kip Fontaine, Clearwater County Attorney, 213 Main Avenue North, Bagley, MN 56621 (for respondent)
Considered and decided by Anderson, Presiding Judge, Toussaint, Judge, and Wright, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from sentencing, appellant argues that the district court abused its discretion when it imposed an upward durational departure from the presumptive guideline sentence for appellant’s burglary-in-the-first-degree conviction. We affirm.
Sometime between 11:30 p.m. on August 5, 2001, and 7:30 a.m. on August 6, 2001, appellant Tracy Pletschett broke into the residence of Winifred and George Boorman, who are both in their eighties. The Boormans were sleeping in their upstairs bedroom. Pletschett went through the house and took a number of the Boormans’ personal belongings. In the Boormans’ bedroom, Pletschett took items from the nightstand next to the bed where the elderly couple was sleeping. Among the items stolen were a jewelry box with a 100-year-old diamond wedding ring, a checkbook, a wallet, and several items of sentimental value. Following the theft, Pletschett took the Boormans’ car to Bemidji and hid the stolen items in the woods.
Pletschett pled guilty to burglary in the first degree, in violation of Minn. Stat. § 609.582, subd. 1(a) (2000). Pletschett’s presumptive sentence was 33 months. On November 28, 2001, the district court postponed sentencing and informed Pletschett that it was considering an upward departure due to the victims’ vulnerability and the fact that Pletschett burglarized their home while they were sleeping. At the sentencing hearing on December 14, 2001, the district court departed upward and sentenced Pletschett to 48 months. This appeal followed.
Absent a clear abuse of discretion, we will not reverse the district court’s decision to depart from the sentencing guidelines. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Before the district court may depart from the sentencing guidelines, it must articulate substantial and compelling reasons justifying the departure. State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999) (citation omitted). An upward departure is justified when the defendant’s conduct is significantly more serious than that typically involved in the commission of the crime in question. State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985). When imposing a durational departure, the district court must consider each case on its own, making a qualitative assessment of all facts to determine if the defendant's conduct was sufficiently different in degree or effect to justify a durational departure from the presumptive sentence. Minn. Sent. Guidelines, II D; State v. Cermak, 344 N.W.2d 833, 839 (Minn. 1984). The presence of just one aggravating factor can justify a departure from the presumptive sentence. See State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985) (single factor sufficient to uphold upward departure).
In this case, the district court based the upward durational departure on three aggravating factors: (1) the victims’ vulnerability, (2) the invasion of the victims’ zone of privacy, and (3) the emotional injury caused. Pletschett argues that the burglary she committed was no more serious than an ordinary first-degree burglary, and none of the district court’s reasons justifies an upward durational departure of one and one-half times her presumptive sentence. We disagree and conclude that two of the three bases articulated by the district court constitute substantial and compelling reasons for the departure.
A victim’s vulnerability “due to age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender,” can be an aggravating factor justifying departure. Minn. Sent. Guideline II D.2.b.(1). “Elderly victims have been found to be particularly vulnerable.” State v. Kimmons, 502 N.W.2d 391, 397 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993); see e.g., Givens, 544 N.W.2d 774 (74-year-old victim); State v. Dye, 371 N.W.2d 47 (Minn. App. 1985) (84-year-old victim), review denied (Minn. Aug. 29, 1986). With respect to the victims’ vulnerability, the district court relied on “Mrs. Boorman being 81 or thereabouts, and Mr. Boorman being 88 or thereabouts at the time [Pletschett] entered * * * and burglarized their home.”
Pletschett argues that the Boormans’ elderly status is not an aggravating factor in this case because she did not know their age prior to entering their home. An offender’s ignorance of the victim’s age prior to the commission of the crime, however, does not preclude the victim’s vulnerability from being considered an aggravating factor. If the offender learns of the victim’s age during the commission of the offense and exploits that newly-determined vulnerability, the district court may properly consider the victim’s vulnerability as an aggravating factor. Givens, 544 N.W.2d at 776.
In Givens, the supreme court held that the upward durational departure sentence imposed for first degree burglary based on the defendant’s exploitation of the 74-year-old victim’s age and physical vulnerability was not an abuse of discretion. The supreme court reasoned that once the victim opened the door, the defendant could not have failed to realize that, based on the victim’s age, she posed no threat. Givens, 544 N.W.2d at 776. Similarly, the defendant in Dye, who did not know the victim prior to entering her home, exploited her age once he saw her opening the front door. Dye, 371 N.W.2d at 52.
Upon entering the Boormans’ home, Pletschett looked around and discovered the Boormans sleeping in their bedroom. At this point, she had an opportunity to assess their age and it was clear that the Boormans posed no threat. Emboldened by this assessment, she took advantage of them by picking up items from their nightstands as they lay sleeping. Although not explicitly relied upon by the district court, the Boormans’ vulnerability is attributable to their sleeping state while Pletschett burglarized their home. See State v. Bingham, 406 N.W.2d 567, 570 (Minn. App. 1987) (victim vulnerable when sleeping); State v. Gettel, 404 N.W.2d 902, 906 (Minn. App. 1987) (victim “particularly vulnerable” in sleeping state), review denied (Minn. June 26, 1987). The district court did not abuse its discretion in determining that the Boormans’ vulnerability, due to their advanced age, along with the fact they were asleep, was an aggravating factor justifying an upward departure.
The district court also determined that Pletschett’s invasion of the Boormans’ zone of privacy was an aggravating sentencing factor, stating
[a] second aggravating factor would be that [Pletschett] invaded [the Boormans’] zone of privacy by going into their bedroom, robbing them of their property, even from their nightstands as they slept.
Invading a victim's zone of privacy can be an aggravating factor in a sentencing departure. State v. Morales, 324 N.W.2d 374, 377 (Minn. 1982). In considering the zone of privacy factor, the district court specifically relied on State v. Pierce, 368 N.W. 2d 427 (Minn. App. 1985), which held that the invasion of privacy in burglary cases was properly considered an aggravating factor when the invasion was not an essential element of the charge itself. Id. at 436. The defendant in Pierce was convicted under Minn. Stat. § 609.582, subd.1(b) (2000), which merely required as an essential element that the burglar enter a building, not a dwelling. Pierce, 324 N.W.2d at 436. Because the defendant entered a dwelling, the Pierce court found that the invasion of privacy was properly considered as an aggravating factor. Id. The district court in this case explained that entering the Boormans’ bedroom was an appropriate aggravating factor to consider since Pletschett’s first-degree burglary charge under Minn. Stat. § 609.582, subd. 1(a) (2000) did not require, as an essential element, that the burglar enter a bedroom, only a dwelling. See Minn. Stat. § 609.582, subd. 1(a) (nonconsensual entry of occupied dwelling an element of first-degree burglary).
Consideration of aggravating factors for purposes of an upward departure should take place only in cases where the crimes are not committed in the typical or usual way. See Holmes v. State, 437 N.W.2d 58, 59 (Minn. 1989) (holding departure unjustified where defendant’s conduct in committing murder did not significantly differ from that typically involved in commission of that crime). Entering the bedroom of a residence during the commission of a burglary is not atypical in a first-degree burglary. However, Pletschett’s entry into the Boormans’ bedroom and theft of items which were within inches of where they lay sleeping is atypical and supports the district court’s finding of an aggravating factor for the invasion of the victims’ zone of privacy. We conclude based on the facts in this case that, although entering an occupied dwelling is an element of Pletschett’s burglary offense, invading the close, personal space of the sleeping victims makes this case atypical for purposes of an upward durational departure. The district court, therefore, did not abuse its discretion in considering Pletschett’s invasion of the victim’s zone of privacy an aggravating factor.
3. Emotional and psychological injury
The district court also found the emotional and psychological injury to the Boormans resulting from the manner in which the burglary was committed to be an aggravating factor. In their victim impact statements, the Boormans stated that Pletschett’s actions took away their sense of security and caused them to change the way they felt about their home and their neighborhood. They also stated that many of the stolen items were of sentimental value and could not be replaced.
Emotional and psychological effects on a victim may justify an upward durational departure in sentencing. State v. Branson, 529 N.W.2d 1, 5 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995), State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992) (psychological injury to victim among aggravating factors justifying upward departure), review denied (Minn. Mar. 3, 1992). In cases where an emotional injury justified an upward departure, the psychological effects of the crime on the victims are severe. This court in Allen, for example, held that the upward departure was proper because psychological effects caused the victim to be depressed, take antidepressant medication and undergo psychological therapy. Id. In State v. Patterson, the upward departure due to psychological injury was upheld where the victim had nightmares, was unable to stay at home alone at night, was unable to return to college, and was in need of psychological counseling. State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994), review denied (Minn. Mar. 31, 1994). In contrast, an upward departure for psychological injury was not warranted in Branson where the victim was “scared a lot” and thought someone was behind her. Branson, 529 N.W.2d at 5.
In this case, the burglary caused the Boormans to experience a loss of security. While this loss is certainly significant to them, the record does not support a finding of emotional and psychological injury that is particularly severe or atypical for burglary victims. It is an unfortunate, but not an unusual, consequence for victims of a burglary to lose their sense of security. The district court noted that the emotional injury was particularly present in this case, because Pletschett robbed the Boormans while they slept and took items within inches of where they lay. These particular facts were part of the court’s consideration of the other aggravating factors warranting departure, namely, the Boormans’ vulnerability and the invasion of their zone of privacy. On the record before us, the Boormans’ loss of security is not a proper basis for an upward durational departure.
In this case, two of the three aggravating factors relied on by the district court justify an upward durational departure. Given the Boormans’ age and Pletschett’s entry into their home, taking items from them within inches of where they slept, the district court did not abuse its discretion in departing upward from the presumptive guideline sentence. It is noteworthy, albeit not critical to our analysis, that the departure in this case was limited. An upward departure generally should not exceed double the presumptive sentence. State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). Here, Pletschett was sentenced to an additional 15 months, an amount less than one and one-half times her presumptive sentence of 33 months.