This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-1739

 

Gerald Wayne Stahl, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed April 22, 2003

Affirmed

Stoneburner, Judge

 

Olmsted County District Court

File No. K6973239

 

John M. Stuart, Minnesota Public Defender, Lawrence W. Pry, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, Tricia L. Matzek, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

 

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            Gerald Wayne Stahl appeals consecutive sentences for his convictions of first-degree criminal sexual conduct and attempted first-degree murder, arguing that both offenses arose from a single course of conduct.  Stahl also argues that the district court abused its discretion by failing to adequately consider mitigating circumstances, violated the rule of Apprendi v. New Jersey, and demonstrated actual bias against him in violation of his due process right to an impartial and disinterested tribunal.  We affirm.

FACTS

 

            Stahl approached a woman on the street in Rochester, grabbed her from behind, pulled her into a darkened yard, and raped her.  He then took her to his truck and said he would take her home.  Instead, Stahl drove approximately one half hour from Rochester, stopped at a cornfield in Dodge county, and ordered her out of the truck.  The woman tried to run.  Stahl tackled her, raped her again, and then told her that he could not let her go because she had seen his face.  Stahl stabbed her three times in the back with a filet knife, forced her to get up, and pushed her into a field of corn.  Stahl forced her farther and farther into the field, but eventually stopped following.  The woman was able to wander out of the cornfield and was found by a passerby the next morning.  Stahl was arrested based on information provided by the victim.  While he was in jail, he threatened his wife in an attempt to convince her to plant evidence of his crime on a co-worker.  Stahl was charged with four counts of first-degree criminal-sexual conduct, three counts of attempted first-degree murder, one count of kidnapping, and one count of aggravated first-degree witness tampering. 

            Stahl pleaded guilty to one count of attempted first-degree murder, one count of first-degree criminal-sexual conduct for his actions in Olmsted County, and first-degree witness tampering.  Pursuant to a plea agreement, Stahl stipulated to facts necessary for imposition of a mandatory 30-year sentence for criminal sexual conduct.  Regarding the remaining convictions, the parties agreed that all sentencing issues, including departures from the guidelines and the consecutive or concurrent nature of the sentences, were open for the parties to argue and for the court to decide. 

            After a sentencing hearing, Stahl was sentenced to 360 months for first-degree criminal-sexual conduct pursuant to the mandatory 30-year sentence for repeat sex offenders whose crimes meet certain requirements to which Stahl stipulated.  Minn. Stat. § 609.109, subd. 4 (1998).  Stahl was sentenced to a consecutive 180-months for attempted first-degree murder and a consecutive 86 months for first-degree witness tampering.

            Stahl’s petition for post-conviction relief was denied and this appeal followed.

D E C I S I O N

 

            We review a postconviction court’s findings “to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  Appellate courts defer to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.  Id.  Unless the district court abused its discretion, its postconviction decision will not be disturbed.  Id.

            Appellant first argues that the district court erred by imposing consecutive sentences for first-degree criminal sexual conduct and attempted first-degree murder because both crimes arose from a single behavioral incident. 

[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.

 

Minn. Stat. § 609.035, subd. 1 (1998).  The determining factor in deciding whether related criminal acts are separate events or a single behavioral incident is whether the conduct was motivated by an effort to obtain a single criminal objective.  State v. Bookwalter, 541 N.W.2d 290, 295 (Minn. 1995).  Courts will also consider unity of time and place to determine whether an event was a single behavioral incident.  State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001).  Offenses are not part of the same behavioral incident if each offense can be explained without necessary reference to the other.  State v. Banks, 331 N.W.2d 491, 494 (Minn. 1983).

            In a case with facts very similar to the ones found here, the supreme court noted that the divisibility of both time and place support a conclusion that  the crimes of sexual assault and attempted murder did not arise out of a single behavioral incident and that a single common criminal objective did not underlie both offenses.  Bookwalter, 541 N.W.2d 290, 297.  Bookwalter forced his victim to drive to a secluded area where he sexually assaulted her in the back of a van.  Id. at292.  After the assault, as Bookwalter drove the van, the victim struggled for a knife.  Id.  Bookwalter stopped the van, pulled the victim into a nearby wooded area and attempted to murder her.  Id.  The supreme court agreed with the district court’s conclusion that Bookwalter’s sexual assault and attempted murder were not part of a premeditated plan and that the attempted murder was more of an afterthought.  Id. at 297The court rejected the argument that the attempted murder was motivated by avoidance of apprehension because Bookwalter had numerous opportunities to escape.  Id. at 297.  

            In this case, as in Bookwalter, Stahl’s crime of criminal sexual conduct committed in Olmsted county and his crime of attempted murder committed in Dodge county occurred at two distinct times and places.  The sequence of events demonstrating the divisibility in time and place of the first sexual assault and the attempted murder is a significant factor supporting the conclusion that the two crimes did not arise out of a single behavioral incident.  See id. at 295.  As in Bookwalter, no evidence exists in the record to suggest that the perverse sexual impulses that led Stahl to assault the victim in Olmsted county motivated his attempt to murder her in Dodge county after the second criminal sexual assault. 

            Stahl relies on State v. Hawkins for the proposition that an offense committed in order to avoid apprehension and arrest is deemed part of the same behavioral incident as the first crime.  State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994).  But even where a defendant’s second offense is committed in an attempt to avoid apprehension, the court must still analyze whether the offense committed in avoidance of apprehension was “substantially contemporaneous” or was a “single behavioral incident” with the first offense.  State v. Bookwalter, 541 N.W.2d at 296 (quotation omitted).  Stahl argues that the attempted murder was contemporaneous with the sexual assault that occurred in Dodge county, but Stahl did not plead to and was not sentenced for that sexual assault.  The issue is whether the attempted murder in Dodge county is part of the same behavioral incident as the earlier sexual assault in Olmsted county.

            In Hawkins, the supreme court held that an attempted murder which occurred at about the same time and in the same place as a robbery was committed for the purpose of avoiding apprehension where the defendant did not have an opportunity to make a safe escape and leave the scene without being harmed or apprehended.  Id. at 297 (discussing Hawkins).  By contrast, Stahl, like Bookwalter, had numerous opportunities to make a safe escape, and Stahl never clarified, prior to sentencing, his motivation for the attempted murder.  The issue of whether multiple crimes are part of a single behavioral incident depends on the facts and circumstances of each case and the resolution is not always simple.  Id. at 296.  The postconviction court thoroughly analyzed this issue based on the facts and circumstances of this case.  There is sufficient support in the record for the district court’s finding that Stahl’s crime of criminal sexual conduct committed in Olmsted county and his crime of attempted murder committed in Dodge county are not part of a single behavioral incident.

            Stahl next argues that the district court should have considered whether he lacked substantial capacity for judgment when the offenses were committed because of a mental impairment and whether that impairment mitigated his culpability.  The scope of review of the imposition of a presumptive sentence is very narrow.  We generally will not review a district court’s exercise of discretion in cases where the sentence imposed is within the presumptive range.  State v. Witucki, 420 N.W.2d 217, 233 (Minn. App. 1988), review denied (Minn. Apr. 15, 1988).  If substantial and compelling circumstances exist, the district court is permitted to depart from the guidelines but is not required to do so.  State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).

            As noted by the postconviction court, the record does not support Stahl’s assertion that he suffered from a mental incapacity or insanity.  The psychologist who conducted Stahl’s presentence psychosexual evaluation concluded that Stahl is of average intelligence and “has the intellectual capacity to understand the nature of his actions and the process in which he is currently involved.”  The psychologist found no evidence suggesting a major depression or the presence of psychosis, but concluded that Stahl is a “patterned sex offender” and a “sexually dangerous individual.”  The record supports the postconviction court’s determination that Stahl did not establish any grounds for relief from his sentence based on a mental impairment.

            Stahl’s third argument is that because his total cumulative sentence is higher than the maximum sentence that can be imposed for any one of his three convictions if sentenced individually, Apprendi is implicated.  In Apprendi, the United States Supreme Court held that a jury, and not the sentencing judge, must make any findings, other than that of a prior conviction, that results in a sentence in excess of the statutory maximum.  Apprendi v. New Jersey, 530 U.S. 466, 491, 120 S. Ct. 2348, 2363 (2000).  Although Minnesota has not addressed the issue of whether Apprendi applies to consecutive sentencing, the state and federal circuit courts that have decided this issue have concluded that imposing consecutive sentences on multiple counts does not violate Apprendi when the sentence for each count does not exceed the statutory maximum for that count.  See e.g. U.S. v. Diaz, 296 F.3d 680, 684 (8th Cir. 2002), cert. denied, Lorh v. U.S., 123 S. Ct. 709 (2002); U.S. v. Parolin, 239 F.3d 922, 930 (7th Cir. 2001), cert. denied,533 U.S. 923, 121 S. Ct. 2538 (2001); U.S. v. McWaine, 290 F.3d 269, 276 (5thCir. 2002), cert. denied, 123 S. Ct. 311 (2002); U.S. v. Buckland, 289 F.3d 558, 572 (9th Cir. 2002), cert. denied, 122 S. Ct. 2314 (2002); People v. Carney, 752 N.E.2d 1137, 1147 (Ill. 2001), cert. denied, 122 S. Ct. 490 (2001); State v. Bramlett, 41 P.3d 796, 798 (Kan. 2002); and State v. Jacobs, 644 N.W.2d 695, 699 (Iowa 2001).  We agree that because Stahl was not sentenced beyond the statutory maximum for any of his crimes, the rule in Apprendi is not implicated.

            Stahl’s final argument is his totally unsupported assertion that the sentencing court demonstrated bias against him.  The postconviction court properly found this claim to be without merit.

            Affirmed.