This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-96-675

State of Minnesota,
Respondent,

vs.
Amir Mookie Shadeed,
f/k/a Daniel Louis Knapper,
Appellant.

Filed July 16, 1996
Affirmed

Stone, Judge*

Hennepin County District Court
File No. 94048993

Hubert H. Humphrey, III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Ave., S.E., #600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Stone, Judge.

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

STONE, Judge

Appellant challenges the trial court's imposition of a durational sentence departure following a remand for resentencing. Because the trial court stated adequate bases for an upward departure at the time of appellant's original sentencing, we affirm.

FACTS

Amir Mookie Shadeed, f/k/a Daniel Louis Knapper, appeals for the second time from the trial court's imposition of a sentence of 151 months.

The trial court first sentenced Shadeed to 151 months in November 1994, following his convictions on two counts of first degree criminal sexual conduct and one count of second degree assault. The convictions arose out of an incident involving Shadeed's strip search of a woman in an attempt to find drugs that he thought she had stolen from him.

At the time of Shadeed's original sentencing, the trial court declared that it was "denying the State's motion for an upward departure, even though" the court viewed Shadeed's conduct in the charged offenses as "particularly cruel" and characterized Shadeed as "a dangerous and violent offender." The trial court also revoked Shadeed's probation for a prior unrelated conviction and ordered Shadeed to serve the new sentence consecutively to the unexpired sentence for his prior conviction.

In Shadeed's first appeal, this court reduced Shadeed's sentence to 91 months, concluding that the trial court had improperly used a criminal history score of five in calculating 151 months to be the presumptive sentence. State v. Knapper, No. CX-95-253, unpub. op. at 5-6 (Minn. App. Aug. 29, 1995), review granted in part and affirmed as modified (Minn. Oct. 19, 1995) (order). Because of the trial court's imposition of a consecutive sentence, we determined that the trial court should have used a criminal history score of zero, which would have produced a presumptive sentence of 81 to 91 months under the sentencing guidelines. Id. at 6.

The state subsequently petitioned the supreme court for further review, and the supreme court remanded the case to the trial court for resentencing.

On remand, the trial court granted the state's motion for an upward departure and again sentenced Shadeed to 151 months. The court reasoned that it had stated sufficient grounds for departure at the original sentencing hearing. Shadeed now appeals.

D E C I S I O N

Sentencing is generally within the broad discretion of the trial court. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Shadeed argues that an exception to this general rule should apply to his case. He claims that the supreme court, by its order of October 19, 1995, limited the trial court's sentencing discretion. He contends that, on resentencing, the trial court lacked the authority to impose a sentence that departed from the presumptive sentence of 81 to 91 months.

The supreme court granted the state's petition for review "for the limited purpose of modifying the court of appeals' decision," and remanded for resentencing. State v. Knapper, No. CX-95-253 (Minn. Oct. 19, 1995) (order). Taking both the petition and the order together in assessing the intent of the supreme court, we conclude that the supreme court intended that, on resentencing, the trial court could properly reconsider the state's motion for an upward departure.

The supreme court, as its basis for remanding this case to the trial court for resentencing, cited to Williams v. State, 361 N.W.2d 840 (Minn. 1985). In that case, the supreme court upheld a durational departure imposed upon resentencing, even though the trial court had imposed a presumptive sentence at the time of the initial sentencing. Id. at 843-44. The supreme court in Williams reasoned that the trial court's stated reasons for imposing consecutive sentences at the original sentencing "would also have justified an upward durational departure from the sentencing guidelines." Id. at 843. Where the sentencing court has failed to state any reasons for departure at the initial sentencing, however, the trial court may not subsequently depart when resentencing a convicted offender. State v. Thieman, 439 N.W.2d 1, 7 (Minn. 1989).

At the time of the original sentencing in this case, the trial court observed that Shadeed's conduct in the charged offenses was "particularly cruel," Shadeed was a "dangerous and violent offender," and his prior felony convictions were for "violent crimes." The trial court's statements further indicate that it has consistently regarded 151 months, not the recalculated presumptive period of 91 months, as an appropriate sentence. Because the trial court articulated reasons for an upward departure at the time of the initial sentencing, that court had the discretion to apply those reasons upon resentencing to reach the same 151-month sentence that it had originally prescribed. The supreme court's order, by "modifying the court of appeals' decision," did not limit the trial court's authority to exercise that discretion.

Shadeed does not challenge the evidentiary support for the trial court's statements, and we conclude from the record that the trial court acted within its discretion by departing in this case. Shadeed's offenses involved his ordering a woman to take off her clothes in a houseful of onlookers while he allegedly threatened, "[s]trip or * * * [you're] dead," repeatedly waved a gun at her, inserted his fingers in her vagina, and then remarked that he knew that he "was going to get to do that one day." The trial court did not abuse its discretion by finding this conduct to constitute "particular cruelty." See, e.g., State v. Lamar, 474 N.W.2d 1, 3 (Minn. App. 1991) (aggravating factors included subjection of victim to verbal abuse and presence of witness to sexual assault), review denied (Minn. Sept. 13, 1991); State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992) ("The trial court may consider taunts, threats and degradation of the victim as aggravating circumstances justifying upward departure."), review denied (Minn. Apr. 13, 1992). The record also supports the trial court's determination that Shadeed was a "dangerous offender" within the meaning of Minn. Stat. ' 609.152, subd. 2 (1994).

Affirmed.


Footnotes

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