This opinion will be unpublished and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

A03-537

 

 

State of Minnesota,

Respondent,

 

vs.

 

Joen Sanchez-Sanchez,

Appellant.

 

 

Filed October 7, 2003

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 01076444

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

 

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

ROBERT H. SCHUMACHER, Judge

In this appeal from the sentence following remand, Joen Sanchez-Sanchez argues that the district court abused its discretion by departing upwards dispositionally and imposing more than a quadruple upward durational departure. We affirm.

FACTS

The facts in this case are undisputed. In September 2001, Sanchez-Sanchez shook an infant, causing permanent brain damage. Sanchez-Sanchez was charged with first-degree assault and she entered a guilty plea. The district court rejected the plea, however, because the factual basis for the plea showed that Sanchez-Sanchez did not act with the intent to injure the child.

The state amended the complaint to add a charge of felony child endangerment, which carries a penalty of up to 60-months imprisonment. See Minn. Stat.  609.378, subd. 1(b)(1) (2002). Sanchez-Sanchez pled guilty to the child-endangerment charge, and the court sentenced her to a 54-month executed sentence, which was an upward dispositional and durational departure from the presumptive stayed sentence of one year and one day. See Minn. Sent. Guidelines Grid.

Sanchez-Sanchez appealed her sentence, arguing the district court erred in imposing a sentence that was four-and-one-half times the presumptive sentence without citing severe aggravating circumstances. We reversed and remanded, holding that the district court erred in departing upwards without citing the severe aggravating circumstances to support the departure. State v. Sanchez-Sanchez, 654 N.W.2d 690, 694 (Minn. App. 2002).

On remand, the district court cited the infant's vulnerability and substantial injuries as severe aggravating factors that supported a dispositional and durational departure and the court imposed a 48-month sentence. Sanchez-Sanchez now appeals from the amended sentence, arguing the district court abused its discretion by imposing the 48-month sentence because severe aggravating circumstances do not exist which justify a greater-than-double durational departure and her sentence is not consistent with sentencing in other child endangerment cases.

D E C I S I O N

A district court has broad discretion in sentencing criminal defendants. State v. Law, 620 N.W.2d 562, 564 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000). But a district court "has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present." State v. Spain, 590 N.W2d 85, 88 (Minn. 1999); Minn. Sent. Guidelines II.D.01. When a departure is justified by compelling factors, the upper departure limit is double the maximum presumptive sentence length. State v. Neal, 658 N.W.2d 536, 544 (Minn. 2003). But when severe aggravating circumstances exist, departures up to the statutory maximum are permitted. State v. Williams, 608 N.W.2d 837, 840 (Minn. 2000).

The severe aggravating circumstances cited by the district court form a sufficient basis for the greater-than-double departure. The 11-month old victim in this case was particularly vulnerable due to his age. See Minn. Sent. Guidelines II.D.2.b.(1) (stating that victim's vulnerability due to age is aggravating factor that may justify upward departure). Although the infant's age is an element of the child-endangerment offense, it can be relied on for an upward departure if it is considered in conjunction with other appropriate factors. State v. Skinner, 450 N.W.2d 648, 654 (Minn.App.1990), review denied (Minn. Feb. 28, 1990).

The infant also suffered very severe and permanent injuries. Infliction of injury is not an element of the child-endangerment offense. Minn. Stat.  609.378, subd. 1(b)(1) (2002). Even if it were an element, the victim's injuries can be considered as an aggravating factor that supports a sentencing departure when they are serious and permanent. State v. Van Gorden, 326 N.W.2d 633, 634 (Minn. 1982). Evidence in the record shows that the infant suffered a skull fracture, subdural hematoma, bilateral retina hemorrhages, and extensive severe brain injuries, including necrosis of his pituitary gland, which left the child in a coma for a number of days.

The district court found that the infant sustained "great bodily harm," which is defined as "bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm." Minn. Stat.  609.02, subd. 8 (2002). The court emphasized the fact that the infant's injuries were "closer to death than great bodily harm," and the defense conceded the severity of the injuries. It is unknown if the infant will ever hear, see, speak, or have motor control. The infant's injuries constitute a severe aggravating circumstance.

Because the infant was particularly vulnerable and has sustained such severe and permanent physical injuries, this is one of the rare cases in which a greater-than-double departure is warranted. See State v. Steinhaus, 405 N.W.2d 270, 271 (Minn. App. 1987) (affirming greater-than-double sentencing departure where infant victim was particularly vulnerable, assault was cruel, and infant sustained severe permanent injuries); cf. State v. Partlow, 321 N.W.2d 886, 887 (Minn. 1982) (concluding greater-than-double departure for first-degree criminal sexual conduct not warranted where child did not sustain any permanent injury).

In addition, the infant's injuries are more serious than the typical case of child endangerment. In State v. Rieger, the appellant failed to properly care for her child's hygiene, failed to enroll her in school, and starved her to the point that the child's growth was stunted. 2000 WL 1219422 *3 (Minn. App. Aug. 29, 2000), review denied (Minn. Nov. 15, 2000). The appellant was charged with child endangerment, and other similar offenses, and the district court imposed a double durational departure because the appellant acted with particular cruelty, the victim was particularly vulnerable, and the victim suffered severe emotional trauma. Id. The facts in Rieger indicate that the child's condition began improving after she was placed in foster care. Id. at *1.

Here, the infant suffered permanent injuries that will potentially leave him immobile, without the ability to see, hear, or speak for the rest of his life. When considering an upward departure, the district court must "decide whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question." Sanchez-Sanchez, 654 N.W.2d at 693-94 (quotation omitted). Because the infant in this case comparatively suffered significantly more serious and permanent injuries than the child in Rieger, the district court did not abuse its discretion by imposing a greater-than-double sentencing departure.

Affirmed.