This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Steven Howard Bailey,
Ramsey County District Court
File No. KX024139
Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, Minnesota Public Defender, Steven P. Russett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Stoneburner, Judge.
Appellant Steven Howard Bailey challenges the district court’s imposition of an upward durational departure in his sentence. Because the district court improperly based the departure on public safety and lack of remorse, we reverse the departure from the presumptive guidelines sentence.
Bailey and the victim met on the Internet and agreed to engage in an “erotic knockout session” using chloroform and a gas mask. While the victim was bound and wearing the gas mask with a chloroform rag in a plastic bag attached to the air intake valve, Bailey engaged in a telephone conversation with a friend that lasted 50 minutes. When Bailey returned to the victim, he had stopped breathing. Bailey’s attempts to revive the victim were unsuccessful. Bailey kept the victim’s body in his apartment for three days, during which Bailey scattered the victim’s belongings and identification throughout St. Paul. He was attempting to load the body into the backseat of his car to dispose of it in the river when a neighbor saw him and called the police. Following a court trial, Bailey was found guilty of second-degree manslaughter and not guilty of third-degree murder.
The state requested that the district court double the 48-month presumptive sentence based on the following factors: (1) abuse of a position of trust; (2) the victim’s vulnerability; (3) failure to seek help; (4) concealment of the crime and treatment of the body; (5) attempts to make himself blameless for the death; and (6) lack of remorse. Bailey argued for the presumptive sentence, as recommended by the pre-sentence investigation report.
Because Bailey and the victim were consenting adults, the district court explicitly rejected the state’s assertions that Bailey was in a position of trust and that the victim was in a position of particular vulnerability. The district court also specifically rejected the state’s arguments that Bailey’s concealment of the body and his failure to obtain medical aid warranted departure. Citing public-safety concerns, Bailey’s lack of remorse, and Bailey’s failure to accept responsibility for the death, the district court sentenced Bailey to an executed prison term of 72 months, a 24-month upward durational departure from the 48-month presumptive sentence.
On appeal, Bailey challenges only the upward durational departure from the sentencing guidelines.
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 before a district court may depart from the sentencing guidelines, it must articulate substantial and compelling reasons justifying the departure. State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999). An upward departure is justified if the defendant’s conduct is significantly more serious than that typically involved in the commission of the crime in question. State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985). If the reasons given by the district court for the departure are improper or inadequate and there is insufficient evidence in the record to justify the upward departure, the departure will be reversed. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).
In this case, the district court partly based the upward durational departure on its concerns that Bailey would continue engaging in the risky behavior that led to the victim’s death. But while posing a threat to public safety may bear on a decision whether to depart dispositionally, it does not bear on a decision whether to depart durationally. State v. Ott, 341 N.W.2d 883, 884 (Minn. 1984). Therefore, the district court abused its discretion by relying on public-safety concerns as an aggravating factor to support the durational departure.
Respondent now claims that Bailey’s conduct of engaging in sexual activity even though he is HIV positive supports the district court’s use of public safety as an aggravating factor. But the facts of this case, which involve consensual acts between adults, are dissimilar to the facts of the cases relied on by respondent in which the defendants were convicted of first-degree criminal sexual conduct. See Perkins v. State, 559 N.W.2d 678, 692 (Minn. 1997) (affirming triple upward durational departure, in part, because defendant committed forcible rape knowing he had AIDS); see also State v. Sebasky, 547 N.W.2d 93, 101 (Minn. App. 1996) (affirming triple upward durational departure after conviction of first-degree criminal sexual conduct against children based, in part, on defendant’s positive HIV status), review denied (Minn. June 19, 1996).
The second reason for the departure cited by the district court was Bailey’s lack of remorse and failure to accept responsibility for the death. Generally, a defendant’s lack of remorse may not be considered to justify a durational departure. State v. McGee, 347 N.W.2d 802, 806 n. 1 (Minn. 1984). A defendant’s lack of remorse may “relate back and be considered as evidence bearing on a determination of the cruelty or seriousness of the conduct on which the conviction was based.” Id. But we conclude that the post-offense lack of remorse cited by the district court does not relate back to the conduct on which the conviction was based and therefore cannot support an upward durational departure.
Respondent urges this court to examine the record as a whole for sufficient evidence to justify the departure. Williams, 361 N.W.2d at 844; see also State v. Dietz, 344 N.W.2d 386, 389 (Minn. 1984) (appellate court may make a qualitative assessment of all of the facts to determine if a defendant’s conduct was “sufficiently different in degree to justify a departure”). Respondent argues that Bailey’s conduct was sufficiently different in degree to justify the departure. But the record does not demonstrate that Bailey’s conduct was significantly more serious than a typical second-degree manslaughter offense. And the district court explicitly rejected additional factors advocated by respondent for departure, such as concealment of the body, the victim’s vulnerability, and Bailey’s position of trust. We cannot say that the district court abused its discretion by rejecting these factors even if we might have reached a different conclusion. Because the departure reasons relied on by the district court were invalid and the district court acted within its discretion when it specifically rejected the other possible reasons for departure contained in the record, we reverse the upward departure from the presumptive sentence.
After this case was submitted, the United States Supreme Court issued an opinion invalidating upward durational departures based on aggravating factors determined by a judge rather than a jury. Because we are reversing the upward departure based on existing Minnesota law, we are not requesting further briefing from the parties on the effect of Blakely v. Washington, 124 S. Ct. 2531 (2004), on this case.
MINGE, Judge (concurring specially)
I concur with the decision to reverse. I would remand because Blakely v. Washington, 124 S. Ct. 2531 (2004), recognizes the right to a jury determination of factors that support durational departures. Under Blakely, appellant should have been given the opportunity to consider whether he wished to exercise that right in choosing between a bench and a jury trial. However, I respectfully disagree with the majority on whether the district court otherwise erred in sentencing. There is ample evidence in the record of aggravating circumstances and egregious conduct to support the length of appellant’s sentence, even if the district court erred in explaining the reasons for its sentence. But for Blakely, we should affirm. See Williams v. State, 361 N.W.2d. 840, 844 (Minn. 1985); State v. Dietz, 344 N.W.2d 386, 389 (Minn. 1984).
 Bailey’s pro se supplemental brief does not raise any additional issues or arguments.