This opinion will be unpublished and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
Charles Conrad Hagen,
Filed May 6, 2003
Robert H. Schumacher, Judge
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, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Charles Conrad Hagen contends that the district court erred in accepting his guilty plea on the charge of criminal sexual conduct in the first degree because the plea lacked the necessary factual predicate to support a conviction, and that the court abused its discretion in departing from the presumptive sentence. We affirm.
On November 26, 2001, J.D. called the Ramsey County Sheriff's Department to report the sexual molestation of J.N., her thirteen-year-old, autistic daughter. Deputy John Lindke responded and interviewed J.D. that same day. She told him that the house in which she and J.N. lived had a basement apartment occupied by two tenants, Hagen and Alia Ebrahim, and that earlier that day she had gone downstairs to check on J.N. and discovered the child in an embrace with Hagen. When J.D. asked J.N. if Hagen had touched her anywhere, J.N. indicated that he had kissed her and touched her crotch area.
On November 29, 2001, J.D. took J.N. for a sexual-abuse consultation. J.N. told the counselor that Hagen had engaged in multiple acts of oral, anal, and vaginal penetration with her. Hagen was subsequently charged with criminal sexual conduct in the first degree. He retained a private attorney.
On March 18, 2002, trial was scheduled to begin. Hagen's attorney did not appear, and neither Hagen nor the court could reach him by phone or determine his whereabouts. After consulting with Hagen and the prosecuting attorney, the court continued the matter until that afternoon to see if the attorney could be located. Upon reconvening that afternoon, Hagen's attorney did appear and explained that he was not aware trial had been scheduled for that morning.
After conferring with his client, Hagen's attorney indicated that his client had decided to enter a guilty plea. He stated that Hagen did not want to
create any more pain or havoc in anybody's life; the victim's, his own, and he wants to have the healing come about that is available to all parties.
He stated that Hagen would enter a plea of guilty "with the understanding that Your Honor would be open to argument for a departure based on the amenability to probation." The prosecutor indicated that there was no agreement regarding sentencing and that he would "be arguing for a guidelines sentence."
Hagen's plea was then put on the record. His attorney questioned him and made a record regarding the various rights Hagen was surrendering with the guilty plea. The court then asked the prosecutor to make a record as to the factual basis for the plea. Hagen admitted engaging in sexual penetration with J.N., at a time in which she was not yet 16 years old. The prosecutor asked Hagen:
Were you living in a residence with a young woman – or young girl, excuse me, now 14 years old, at the time 13 years old, with the initials J.K.N.?
Hagen responded affirmatively. Later, the prosecutor asked:
And has your attorney talked to you about the significant relationship due to the fact that you resided in the same residence as JKN at the time of [the conduct]?
Hagen responded affirmatively. The court accepted the plea and scheduled a sentencing date.
At the sentencing hearing, the state requested an upward durational departure from the presumptive sentence of 144 months executed. Hagen's attorney argued for a downward departure because of Hagen's remorse and the fact that he accepted responsibility for his conduct, and requested probation with sex offender treatment. The court sentenced Hagen to 216 months executed, a 50% upward durational departure, citing as aggravating factors the violation of the victim's zone of privacy, the psychological and emotional trauma the victim suffered and continues to suffer, and the victim's vulnerability due to her disabilities. This appeal followed.
A valid guilty plea must be voluntary, accurate, and intelligent. State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). The district court must establish a proper factual basis for an accurate plea. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). The court should not accept the plea unless and until the record supports the conclusion that the defendant committed an offense at least as serious as the crime to which he is pleading. Trott, 338 N.W.2d at 251-52. Minnesota Rule of Criminal Procedure 15.05 provides that a defendant may be allowed to withdraw a guilty plea to avoid a manifest injustice. "Manifest injustice occurs if a guilty plea is not accurate, voluntary, and intelligent * * * ." Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997). Interpretation of a statute is a legal determination which this court reviews de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). Sentencing departures are reviewed according to an abuse of discretion standard, provided that the record indicates substantial and compelling reasons justifying the departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).
1. Hagen pleaded guilty to first-degree criminal sexual conduct. See Minn. Stat. § 609.342, subd. 1 (2000) (defining offense). He was charged under Minn. Stat. § 609.342, subd. 1(g), which provides that a person who engages in sexual penetration with another person under the age of 16 with whom that person has a "significant relationship" has committed the first-degree offense. Minn. Stat. § 609.341, subd. 15(2) (2000) defines the term "significant relationship" to include the situation in which the actor is "an adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant's spouse."
Hagen argues that the plea cannot stand because the record does not establish that he occupied the same dwelling as J.N. for purposes of creating a "significant relationship" under the statute. We disagree. The dwelling in question is what is known as a single-family home, with the basement rented and occupied by Hagen and another adult and her child. Black's Law Dictionary defines dwelling as the "house or other structure in which a person or persons live; a residence; abode." Black's Law Dictionary 505 (6th ed. 1990). It is clear that Hagen occupied the same "dwelling" as the victim as that term is generally and commonly understood.
Moreover, our conclusion finds support in the legislature's definition of dwelling in the burglary statute, which defines dwelling as "a building used as a permanent or temporary residence." Minn. Stat. § 609.581, subd. 3 (2000). Also, the supreme court has held that a basement, even though accessible only from the outside, was part of the same "dwelling" along as the remainder of the house for purposes of the burglary statute. State v. Maykoski, 583 N.W.2d 587, 588-89 (Minn. 1998). The record provides adequate support for the requisite factual basis for the first-degree crime and Hagen's plea to that crime.
2. Hagen also contends the district court abused its discretion in departing from the presumptive sentence. The court listed three reasons for the departure: (1) Hagen invaded J.N.'s zone of privacy to complete the crime, (2) J.N. suffered "great psychological and emotional trauma," and (3) J.N. was particularly vulnerable due to her "many disabilities." If any of these reasons are valid and adequate to support the departure, or if the record indicates alternative reasons justifying the departure, this court will affirm the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).
Hagen argues that although J.N. suffers a disability that admittedly renders her particularly vulnerable, Hagen did not "actually exploit this vulnerability in order to commit the crime." In support of his claim, Hagen cites cases discussing how a victim's size or age did not render that victim more vulnerable when confronted with a weapon. State v. Luna, 320 N.W.2d 87, 89 (Minn. 1982); State v. McClay, 310 N.W.2d 683, 685 (Minn. 1981).
It is not clear from the record how J.N.'s autism made her vulnerable and how Hagen exploited this vulnerability, although common sense would indicate a vulnerability. The record indicates that Hagen told J.N. that he loved her and that the two of them were "in love." He made references to "candy" and "caramel" to induce J.N. to have oral sex with him. We cannot determine from the record, however, what exactly the district court meant with its reference to "many disabilities."
The record does indicate, however, that J.N. suffered severe psychological trauma as a result of the sexual abuse. Family members provided evidence at the sentencing hearing that J.N. has acted out sexually with other children, has nightmares and anger fits, and obsesses about sex and anatomy. This court has acknowledged that trauma of this nature justifies a sentencing departure. State v. Schroeder, 401 N.W.2d 671, 675 (Minn. App. 1987), review denied (Minn. Apr. 23, 1987).
We also find from the record a clear alternative justification for the upward departure. Hagen's conduct included multiple incidents and multiple methods of penetration. J.N. told the counselor that Hagen committed multiple acts of oral, anal, and vaginal penetration on her. These factors constitute appropriate grounds on which to depart. See State v. Van Gorden, 326 N.W.2d 633, 635 (Minn. 1982) (multiple methods); State v. Sebasky, 547 N.W.2d 93, 101 (Minn. App. 1996) (multiple acts), review denied (Minn. June 19, 1996). The district court did not abuse its discretion in departing upward from the presumptive sentence.
3. In his pro se brief, Hagen raises the issue of ineffective assistance of counsel. Although the record indicates that neglect may have occurred with respect to Hagen's attorney's failure to appear on time for trial, it does not contain sufficient facts "to show defense counsel's performance was deficient" and that "the deficient performance prejudiced the defense." State v. Gustafson, 610 N.W.2d 314, 320-21 (Minn. 2000). Accordingly, this issue must be raised in a postconviction petition for relief. Id. The other issues raised in Hagen’s pro se brief are without merit.
 The 7th edition of Black's Law Dictionary, published in 1999, does not define the word "dwelling." Instead, that edition lists the same definition for "dwelling-house."