This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Gregory A. Welch,
Filed May 22, 2007
Ramsey County District Court
File No. K4-00-2883
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public
Defender, Roy G. Spurbeck, Assistant Public Defender,
Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his sentence for second-degree attempted criminal sexual conduct, arguing that the district court did not have the inherent authority to conduct a sentencing trial and that the imposition of his sentence violates his right not to be placed in double jeopardy and subjects him to an ex post facto law. Appellant argues also that the evidence was insufficient for the district court to find aggravating factors beyond a reasonable doubt and that the district court abused its discretion in imposing a sentence of 150 months. We affirm.
On February 1, 2001, the district
court convicted appellant Gregory Welch of attempted second-degree criminal
sexual conduct, in violation of Minn. Stat. §§ 609.17, subd. 1, 609.343,
subd. 1(e)(i) (2000); and kidnapping, in violation of Minn. Stat.
§ 609.25, subd. 1(2) (2000), for the August 31, 2000 assault of a woman who
was pushing her infant child in a stroller in
Welch appealed to this court, and although
we affirmed Welch’s convictions, we remanded the case for further consideration
of his sentences in light of Apprendi v.
Because his sentence was not final when the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), on remand, Welch moved the district court to have his sentence reconsidered in light of Blakely, arguing that he was entitled to the imposition of the presumptive sentence of 44 months for the attempted-criminal-sexual-conduct conviction. The state agreed that Welch was entitled to the application of Blakely but argued that the district court had the inherent authority to conduct a sentencing trial on aggravating factors.
In January 2006, the district court held a
sentencing trial; Welch waived on the record his right to a jury trial. There was testimony at the trial from a police
officer who had arrested Welch for a series of assaults against women in
Following the hearing and written submissions, the district court found the presence of aggravating factors, determining that “the victim was particularly vulnerable at the time of the offense because she was caring for [a] six-month old child and the offense itself was committed in the presence of the child.” The district court also determined that Welch was a patterned sex offender, finding that Welch’s “criminal sexual behavior is an engrained behavior,” that his risk to re-offend “is great without long-term sexual offender treatment,” and that he is a danger to public safety. The district court departed upwardly and sentenced Welch to 150 months’ imprisonment. This appeal follows.
D E C I S I O N
argues first that the district court lacked the statutory authority to conduct
a sentencing trial on remand, claiming that he is entitled to the imposition of
the presumptive sentence. But the
supreme court has determined that district courts have the inherent authority
to conduct sentencing trials on remands for the application of Blakely.
next argues that his sentence violates the double-jeopardy and ex post facto clauses
of the federal and
also argues that the evidence was insufficient to prove beyond a reasonable
doubt the existence of aggravating factors. There is no published authority establishing
the standard of review of sentencing trials. But the Supreme Court’s decision in Blakely requires that every fact that
increases the sentence above the presumptive sentence be proved beyond a
reasonable doubt. State v. Shattuck, 704 N.W.2d 131, 135, 141 (
when considering a claim that the evidence was insufficient to support an
upward departure, we painstakingly review the record to determine whether the
evidence, when viewed in the light most favorable to the findings, permitted
the fact-finder to find beyond a reasonable doubt the facts necessary to depart.
A. Presence of a Child
argues that the state has not established that the presence of the victim’s
child during the assault is a “substantial or compelling circumstance to
justify an upward departure based on the child’s presence.” Committing a “heinous and vulgar crime” in the
presence of a child has been found to be “particularly outrageous.” State v.
Gaines, 408 N.W.2d 914, 918 (
Welch contends that there was “no evidence that the child’s presence made the victim more vulnerable or reduced her capacity to defend herself or flee” and that there was insufficient evidence that “the child was affected by the crime,” arguing that the only evidence that the child was affected by the assault is the testimony of the victim that “as she fled, the baby was crying.” The district court determined that “the victim was particularly vulnerable at the time of the offense because she was caring for [a] six-month old child and the offense itself was committed in the presence of the child.”
We conclude that the record supports the district court’s finding. During the sentencing hearing, the victim testified that she was with her child at the time of the assault and that after she successfully fought off Welch, she ran away while pushing her crying child in a stroller. The record was sufficient to allow the district court to determine beyond a reasonable doubt that the victim was particularly vulnerable at the time of the assault because she was caring for her child.
B. Patterned-Sex-Offender Statute
argues that the probation officer who performed the sex-offender assessment is
not a “qualified medical practitioner” under the statute. The patterned-sex-offender statute requires
that the district court base its finding on a “professional assessment by an
examiner experienced in evaluating sex offenders that concludes that the
offender is a patterned sex offender.” Minn.
Stat. § 609.108, subd. 1(a)(3). This
court addressed Welch’s argument in his first appeal, concluding that the
probation officer’s education and experience satisfied the statute. See Welch, 2002 WL 1013152, at *4. We are bound by the law of the case. See State v. Andren, 350 N.W.2d 404, 405 (
argues finally that the district court abused its discretion when it sentenced him
to 150 months’ imprisonment, which is more than three times the presumptive
sentence of 44 months. We review sentencing
departures for an abuse of discretion. State v. Geller, 665 N.W.2d 514, 516 (
argues that the circumstances of his offense are not unusually severe, citing a
number of cases in which the aggravating factors were arguably more severe than
those present here. But the
patterned-sex-offender statute requires that the district court sentence a
defendant to no less than double the presumptive guidelines sentence. Minn. Stat. § 609.108, subd. 1(a). And this court has held that when a defendant
is sentenced under the patterned-sex-offender statute, severe aggravating
factors are not required to impose a sentence that is more than double the