This opinion will be unpublished and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

A03-71

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey Dean Caperton,

Appellant.

 

 

Filed September 23, 2003

Affirmed

Robert H. Schumacher, Judge

 

Itasca County District Court

File No. 31-K6-02-1195

 

 

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

John J. Muhar, Itasca County Attorney, Courthouse, 123 Fourth Street Northeast, Grand Rapids, MN 55744 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Parker, Judge.*

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

ROBERT H. SCHUMACHER, Judge

Appellant Jeffrey Caperton appeals from a conviction and sentence for first-degree burglary in violation of Minn. Stat.  609.582, subd. 1(c) (2000). The district court did not abuse its discretion in imposing a double departure and the plea agreement did not promise Caperton a presumptive sentence. We affirm.

FACTS

Caperton was charged with entering the home of two of his acquaintances in the early morning hours of June 16, 2002, and physically assaulting their 13-year-old daughter. The complaint charged Caperton with two counts of first-degree burglary, under Minn. Stat.  609.582, subd. 1(b) (entering a building and committing a crime while possessing a dangerous weapon) and (c) (entering a building and committing an assault), as well as terroristic threats.

The complaint alleged that the victim told police that she woke up and someone was standing over her. When she screamed, the man, whom she identified as Caperton, began hitting her head many times, then threatened to stab her with a knife if she didn't stop screaming. The victim's sister, who was also in the bedroom, also identified Caperton as the assailant.

Police found a small sharp cutlery knife on the floor next to the victim's bed. When Caperton was arrested, he had blood on his face and his left hand. DNA testing identified the blood found on Caperton as a mixture matching the DNA samples of the victim and Caperton.

At the guilty-plea hearing, Caperton's attorney explained the plea agreement as follows:

Judge, on Count 2 we do not really have an agreement. It's more or less a plea straight up, and I believe the State would recommend top of the box. There are no bases in [the prosecutor]'s opinion for departure, so we'd be looking at a 52-month sentence. However, we would need a presentence investigation.

 

At one point, defense counsel asked Caperton if he understood that if the court "were to deviate from the guideline sentence that you'd have a right to withdraw your plea." The court, however, interrupted and asked the prosecutor if an agreement regarding sentence had been reached. The prosecutor stated that although she had "not been able to find a way to depart," she had not agreed to the presumptive sentence, which was 48 months, although the parties agreed the state would seek 52 months, the upper end of the presumptive range. Caperton then stated that he understood that if some reason for departure from the presumptive sentence were found, he would not be allowed to withdraw his guilty plea.

At sentencing, the court imposed a 96-month sentence, citing the following aggravating factors: (1) violation of the victim's zone of privacy; (2) failure to take responsibility for the offense; (3) vulnerability of the victim due to age; and (4) particular cruelty of the assault.

D E C I S I O N

Caperton argues that the district court abused its discretion in departing upwards to 96 months, which represents a double departure from the presumptive sentence of 48 months. The decision to depart from the sentencing guidelines rests within the district court's discretion and will not be reversed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

Caperton argues that the district court could not use the "zone of privacy" aggravating factor because that is an element of the offense of burglary. In that regard, Caperton urges this court to overrule its holding to the contrary in State v. Pierson, 368 N.W.2d 427 (Minn. App. 1985). Caperton also argues that the other aggravating factors cited by the district court are either not supported by the facts or do not sufficiently distinguish his crime from the typical first-degree burglary. We disagree.

Caperton entered the victim's bedroom, which is not an element of first-degree burglary, even under subdivision 1(a), which requires only entry into the "dwelling." And there are sufficient aggravating circumstances to support the double departure without considering the "zone of privacy" factor. A victim's vulnerability due to age is a well-established aggravating factor. See Minn. Sent. Guidelines II.D.2.b.(1). The victim was only 13 years old, and since she was a friend of Caperton's daughter, her vulnerability due to age was well known to him. And Caperton's assault on her exhibited cruelty beyond the elements of first-degree burglary, which does not require any particular degree of assault. Caperton's assault left the victim covered in blood. Finally, although the district court did not explicitly cite the psychological impact of the crime, the record establishes that the crime had a severe impact on the victim, who was unable to sleep in her bedroom after the offense and sought counseling to deal with the offense. See generally State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992) (recognizing that victim's psychological injury will support upward departure), review denied (Minn. Apr. 13, 1992).

Caperton also argues that the plea agreement gave him the right to withdraw his guilty plea if the district court imposed an upward departure. Caperton seeks a remand to provide him with the opportunity to withdraw his guilty plea.

A defendant has a right to withdraw his guilty plea if the plea agreement is violated by imposition of a sentence other than that promised in the agreement. State v. Tyska, 448 N.W.2d 546, 549 Min. App. 1989). But here, although defense counsel at one point said Caperton could withdraw the plea if there was a departure, the court clarified with counsel that there was no agreement as to sentence. In what defense counsel himself described as "more or less a plea straight up," there was only an understanding that the prosecutor did not anticipate seeking an upward departure. Thus, the parties expected there would be a 52-month sentence (the "top of the box"), but the prosecutor made it clear she had not agreed to any particular sentence. Therefore, the 96-month sentence did not violate the plea agreement, and Caperton is not entitled to withdraw his guilty plea.

Affirmed.



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