This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Charles Henry Krejce, petitioner,
Ramsey County District Court
File No. K4-01-3011
John M. Stuart, State Public
Defender, Rochelle R. Winn, Assistant Public Defender,
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Ross, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*
This case arises out of the sexual assault of a seven-year-old girl by a stranger posing as an officially sponsored reading tutor. Charles Henry Krejce appeals from an order denying his postconviction petition that challenged his 2002 sentence for that offense. The sentence resulted from a double upward departure to 288 months’ incarceration after a jury convicted Krejce of first-degree criminal sexual conduct. Krejce argues that the double departure was not supported by aggravating factors. Because the record supports the finding of aggravating factors to justify the double upward departure from the presumptive sentence, we affirm.
About thirty minutes after Krejce went into the basement, M.Y.’s grandmother checked on the children. She saw Krejce standing over M.Y. and forcing her to perform oral sex. She dialed 911, screaming “help me” in Hmong. She got a knife from the kitchen and, still screaming for help, chased Krejce out of the apartment. She injured herself in the process. Neighbors witnessed the chase and saw Krejce run to his car and speed away. Police arrested Krejce two days later.
After the jury found Krejce guilty, the state moved for a double upward departure from the presumptive sentence of 144 months’ incarceration. The presentence investigation report recommended an upward departure to the statutory maximum of 360 months. Before sentencing, Krejce participated in a psychological and psychosexual evaluation. During the evaluation, Krejce admitted that by using children’s books to gain access into homes with children, he engaged in oral sex at least six times with girls who were seven to ten years old. The evaluation found that Krejce is a “highly dangerous predatory, pedophile sex offender,” with a “clear potential for escalating misconduct.”
The district court sentenced Krejce in May 2002. At the sentencing hearing, the prosecutor read victim impact statements to the court from M.Y.’s mother, grandmother, and aunt, describing the emotional and psychological trauma that resulted from the sexual assault. The statements explained that, in accordance with Hmong custom, M.Y.’s family had performed three hu plig healing ceremonies, intended to restore the soul of a person who has been physically and emotionally traumatized, and who otherwise, according to their beliefs, would become ill and eventually die. The district court sentenced Krejce to 288 months in prison, a double upward departure, based on its finding of aggravating factors. These factors were Krejce’s invasion of M.Y.’s zone of privacy, M.Y.’s age and vulnerability, the presence of other children during the commission of the crime, Krejce’s planning and use of subterfuge, Krejce’s exploitation of the color of a position of authority, and M.Y.’s emotional and psychological trauma. Krejce did not directly appeal his conviction or sentence.
Krejce filed a petition for postconviction relief three years later, alleging that the aggravating factors cited by the district court did not support a double upward departure and that the sentence imposed is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The postconviction court denied Krejce’s petition, finding that the district court “clearly articulated numerous recognized aggravating factors justifying the upward departure.” Krejce’s appeal follows.
D E C I S I O N
challenge reaches this court in the postconviction process, rather than on
direct appeal from the judgment. A petition
is a collateral attack on a judgment that carries a presumption of regularity
and, therefore, will not be lightly set aside. Pederson
v. State, 649 N.W.2d 161, 163 (
We also review a district court’s decision to depart from a
presumptive sentence for an abuse of discretion. State v.
Shattuck, 704 N.W.2d 131, 140 (
Krejce contends that the district court abused its discretion by imposing a double upward departure and that his sentence must be reduced to the presumptive imprisonment term of 144 months. He argues that the aggravating factors were either invalid or unsupported by the record. We disagree. Our review of the record reveals ample support for at least four of the aggravating factors relied on by the district court, and at least one other factor not relied on by the court.
Zone of Privacy
Krejce concedes that the district court properly relied on his violation of M.Y.’s zone of privacy as an aggravating factor. See State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991) (holding that offender invaded victim’s zone of privacy by sexually assaulting her in her home and this invasion was an aggravating factor for purposes of sentencing), review denied (Minn. Jan. 16, 1992). He argues, however, that relying on this single factor makes a double upward departure disproportionate to the crime because the factor would be absent had the crime occurred elsewhere. That the crime committed in some other place would not have triggered this aggravating factor is irrelevant. Krejce’s argument essentially asserts that but for the aggravating factor there would be no aggravating factor. That Krejce invaded M.Y.’s zone of privacy is sufficient to support the departure, and the record also supports the district court’s finding of other aggravating factors.
Presence of Children
The district court’s departure also relied on the fact that
Krejce assaulted M.Y. in the presence of other children. The presence of children during a sexual
assault may be an aggravating factor
even if the assault was not committed in front of them. Hart,
477 N.W.2d at 740; State v. Dalsen,
444 N.W.2d 582, 584 (Minn. App. 1989), review
denied (Minn. Oct. 13, 1989). The commission
of a violent crime in front of children is “particularly outrageous.” State
v. Profit, 323 N.W.2d 34, 36 (
Planning, Manipulation, and Course of Conduct
Extensive planning and manipulation also constitute
aggravating factors that justify an upward departure. See State
v. Kindem, 338 N.W.2d 9, 17-18 (
Emotional and Psychological Impact
The district court cited the trauma to M.Y. and her grandmother as aggravating factors. The emotional and psychological effect of an offense on the victim may justify an upward durational departure in sentencing. State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992). The emotional effect of the crime on a victim’s family may also be considered an aggravating factor. Bingham, 406 N.W.2d at 570.
M.Y.’s grandmother testified that seeing her granddaughter sexually
assaulted would stay with her forever; she asserted that it was worse than murder. M.Y.’s mother testified that M.Y. is very
frightened and often cries about the assault.
The prosecutor read victim impact statements further describing the
emotional and psychological trauma the family and M.Y. had experienced. The statements explained that M.Y. has often been
ill, that she has become withdrawn, and that her academic performance
significantly diminished. The statements
noted that Hmong cultural and community beliefs about rape will likely prevent
M.Y. from having a normal life within the culture. M.Y.’s family had performed three hu plig healing ceremonies. These facts supported the district court’s
determination. See State v. Lee, 494 N.W.2d 475, 482 (
The district court relied on M.Y.’s vulnerability due to her young age. The state concedes that this reliance is improper because age is an element of the offense. See Taylor, 670 N.W.2d at 589 (holding that age is inappropriate basis for departure when age is element in degree of offense). The district court also cited as an aggravating factor Krejce’s conduct under apparent “color of authority” by representing an affiliation with the public housing authority. But Krejce had no actual authority to misuse when he gained access to the apartment. His misrepresentation of authority, however, supports the district court’s consideration of his planning and scheming.
Finally, though not relied on by the district court, the record would support a finding of particular cruelty as an aggravating factor. See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (holding that upward departure decision may be upheld where record supports aggravating factors not relied on by the district court); Harwell, 515 N.W.2d at 109 (holding that particular cruelty is an aggravating factor that alone can justify double departure). Krejce’s actions caused M.Y. to gag and throw up while he restrained her by her shoulders and moved her back and forth for his own prurient gratification. Krejce also told his seven-year-old victim that her grandmother told him to engage her in the sexual misconduct. Krejce found a way to make the sexual assault of a very young child even more cruel—discouraging her resistance by misleading her to believe that her own grandmother sent him into the basement to force her to perform oral sex on an adult stranger. His actions were particularly cruel and would unquestionably justify an upward departure on its own.
There is an abundance of support in the record for the sentencing court to find aggravating factors to justify the double upward departure of Krejce’s sentence. The postconviction court did not abuse its discretion by denying Krejce’s postconviction petition for relief.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Krejce’s case was final before Blakely’s effective date of June 24,
2004. Krejce has conceded that Blakely does not apply retroactively to
his case. State v.