This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Martin Dennis Jackson,


Filed June 10, 2003


Peterson, Judge


Anoka County District Court

File No. K20111608


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and


Robert M. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN  55303 (for respondent)


John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N


In this appeal from a judgment of conviction for second-degree assault, appellant Martin Dennis Jackson argues that the district court abused its discretion by rejecting his motion for a downward dispositional departure from the presumptive sentence and by imposing an upward durational departure.  We affirm.


            On December 13, 2001, shortly after 12:00 p.m., Jackson was driving his pickup truck on Central Avenue in Columbia Heights when a car passed him and cut him off.  Jackson became angry.  He chased the car and followed it when it turned westbound onto 50th Avenue.  A witness saw Jackson’s truck rear-end the car and then saw the car pull to the left side of the road as if to avoid Jackson’s truck.  The witness saw Jackson’s truck hit the car again, causing the car to hit a tree.   After hitting the tree, the car bounced back into the roadway and caught on fire.  Jackson left the scene in his truck.  A passerby pulled the driver from the burning car.

            The day after the accident, a confidential informant contacted police.  The informant told police that at about 1:45 to 2:00 p.m. on December 13, 2001, Jackson showed up at a bar in Columbia Heights and told a story about just having been involved in a road-rage incident.  According to the informant, Jackson said he had run a car off the road into a tree, and the car had started on fire.

Jackson was charged by complaint with one count each of first-degree assault in violation of Minn. Stat. §§ 609.221, subd. 1, 609.11, subd. 4 (2000); and second-degree assault in violation of Minn. Stat. §§ 609.222, subd. 1, 609.11, subd. 4 (2000).  The district court ordered a Rule 20 evaluation and, based on the evaluation results, found Jackson mentally competent to face criminal charges.  Jackson pleaded guilty to second-degree assault.  At the plea hearing, Jackson admitted deliberately hitting the car with his truck and then accelerating his truck so that his truck’s front bumper maintained contact with the car’s rear bumper and pushed the car down the road. 

            After Jackson pleaded guilty, the district court ordered a presentence psychological evaluation, which was performed by James H. Gilbertson, PhD.  Gilbertson stated in his report:

[I]t is my opinion that [Jackson’s] mental illness had a significant contribution to the instant offense.  His particular mental illness is of the manic type with high energy, delusional and false beliefs, increased anger and irritability, compromised judgment and decreased behavioral inhibition.


            Additionally, he has an underlying antisocial personality disorder.  Even when non-psychotic, Mr. Jackson has a potential for impulsive and thoughtless behavior.  He is anti-authority and has had disrupted social relationships.


            It is not uncommon for individuals in correctional settings to evidence a bipolar disorder superimposed upon an antisocial personality disorder.  One interacts with the other and it is not uncommon for this subtype to be characterized by especially aggressive and “over the top” offenses.


            It is my opinion that Mr. Jackson is in need of a correctional program as the main thrust of his disposition.  Within most correctional programs he could obtain psychiatric and psychological services.  To manage the attitudes and beliefs surrounding his antisocial orientation needs specific correctional address and confrontation.  His mental status, per his bipolar illness, needs specific address to allow him to rationally engage a correctional program and the assorted treatment that would be associated with such.


            It is my opinion that Mr. Jackson’s mental illness may introduce a mitigating factor though it itself is not the entire issue with regard to Mr. Jackson’s at risk behavior.  As indicated, he has an antisocial orientation and his history also reveals drug usage that could only further exacerbate his existing problems.


            In the past Mr. Jackson has not demonstrated significant compliance with treatment programming, save for the time he has been in a controlled environment, i.e. psychiatric and/or correctional.  Given the particular configuration of his mental illness and antisocial personality, a commitment to a correctional program, sufficiently long and sufficiently psychiatrically tailored, would appear to be the best option to intercept his downward decline, allow him to engage in sustained management of his illness and gain in understanding and maturity.


            The district court found that Jackson’s mental illness was not a mitigating factor that justified a downward departure.  The court stated at the sentencing hearing that Jackson suffers from mental illness and has an anti-social personality disorder.  The court then stated:

            However, the anti-social personality disorder has a tendency to be present in many circumstances while the mental illness is in remission or is not active.  That is a matter that Mr. Jackson is likely to have to deal with all of his life, has in the past, and undoubtedly will in the future.  Under the circumstances of this case, the Court does not believe that the mental illness of the defendant substantially impaired his judgment as it pertains to the victim in this case and the incident to which he has pled guilty.


            Based on its finding that Jackson treated the victim with particular cruelty, the district court sentenced Jackson to 36 months in prison, an upward durational departure from the presumptive term of 21 months.  The district court found:

            3.  The final time [Jackson] rammed the Ford Tempo, the Ford was forced into a tree, bounced off the tree and caught on fire.


            4.  [Jackson] fled the scene of the assault in his pickup, but not before he observed that the Ford Tempo had hit the tree and caught fire.


            5.  The force of the assault, together with the speed of the vehicles, was not only sufficient to cause the Ford to crash and bounce off the tree after striking it, but also sufficient to result in serious injuries to [the victim] – an open compound [leg] fracture.


            6.  Despite the force of the assault and the resulting fire, [Jackson] failed to take any measure to assist the victim of the assault, leaving the victim in substantial peril.



            The decision to depart from the presumptive sentence under the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).  An upward departure is within the district court’s discretion only if aggravating circumstances are present.  State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).  An upward departure from sentencing guidelines must be supported by substantial and compelling circumstances that make the crime more serious than a typical case involving the same crime.  State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992); Minn. Sent. Guidelines II.D.

            The district court departed upward durationally based on its finding that Jackson acted with particular cruelty.  A finding that the victim was treated with particular cruelty alone is sufficient to justify an upward durational departure because that factor is specifically included in the sentencing guidelines as an aggravating factor justifying an upward departure.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  The district court’s finding of particular cruelty was based on the severity of the assault and Jackson’s failure to aid the victim after his car caught fire.  Those factors are sufficient to support the finding of particular cruelty.  See Minn. Stat. § 609.222, subd. 1 (2000) (substantial bodily harm not necessary element of second-degree assault with a dangerous weapon); State v. Cox, 343 N.W.2d 641, 644 (Minn. 1984) (sentencing court may consider serious permanent injuries inflicted during an assault as an aggravating factor); State v. Jones, 328 N.W.2d 736, 738 (Minn. 1983) (defendant’s failure to aid robbery victim, leaving her in a beaten condition and failing to notify the paramedics, supported finding of particular cruelty).

            Jackson argues that the district court did not assign sufficient weight to his mental illness as a mitigating factor.  “Extreme mental impairment has been held to mitigate against an upward departure.”  State v. Lee, 491 N.W.2d 895, 902 (Minn. 1992) (citation omitted).  Whether the defendant lacked substantial capacity for judgment is a factual issue best determined by the district court.  State v. Barsness, 473 N.W.2d 325, 329 (Minn. App. 1991), review denied (Minn. Aug. 29, 1991).

            The district court’s comments at the sentencing hearing demonstrate that it carefully considered whether Jackson’s conduct resulted from his mental illness.  The record supports the court’s conclusion that although Jackson suffers from a mental illness, his mental illness did not substantially impair his judgment with respect to this offense.

            Jackson argues that he was amenable to probation.  But Gilbertson opined that given Jackson’s previous failure to cooperate with treatment, he needed to be incarcerated.

            Jackson argues that he did not know the victim’s car was on fire when he left the scene.  At the plea hearing, Jackson testified that he left the scene without seeing that the car had caught fire.  But after leaving the scene Jackson went to a bar where he talked about the road-rage incident and said the car was on fire.

The fact that a defendant attempts to plead not very guilty in pleading guilty ordinarily does not limit the trial court in its findings of fact at the subsequent sentencing hearing.


State v. Alston, 391 N.W.2d 2, 4 (Minn. App. 1986) (citing State v. Winchell, 363 N.W.2d 749, 749 (Minn. 1985)).

            Jackson argues that the district court erred in considering the severity of the assault because bodily injury was an element of the dismissed charge.  “Great bodily harm” is an element of first-degree assault.  Minn. Stat. § 609.221, subd. 1 (2000).  The district court could have considered injury less severe than great bodily harm without considering an element of the dismissed charge.  See Minn. Stat. § 609.02, subds. 7-8 (2000) (defining “bodily harm,” “substantial bodily harm,” and “great bodily harm”).  But even if the district court erred in considering the severity of the assault, appellant’s failure to aid the victim supports the upward departure.

            The district court did not clearly abuse its discretion by declining to grant a dispositional departure or by imposing an upward durational departure.




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