This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-537

State of Minnesota,

Respondent,

vs.

Kenneth Brian Young,

Appellant.

Filed January 7, 1997

Affirmed

Peterson, Judge

Ramsey County District Court

File No. K1951013

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

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

Deborah K. Ellis, 700 St. Paul Building, 6 West Fifth Street, St. Paul, MN 55102 (for Appellant)

Considered and decided by Parker, Presiding Judge, Peterson, Judge, and Willis, Judge.

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

PETERSON, Judge

On appeal from a conviction and sentence for first-degree assault, appellant argues that the district court erred in departing upward durationally from the presumptive sentence and that his sentence deprived him of the benefit of his plea bargain. We affirm.

FACTS

Appellant Kenneth Young's current conviction arose out of an assault he committed on his girlfriend, J.P. In an affidavit, J.P. described the assault as follows. Young became angry and began choking her. When J.P. kicked at Young to get him off of her and went into the bathroom, Young came into the bathroom and continued yelling at her. He shook her, knocked her head against the wall, and hit her in the neck. When J.P. put her hands up to protect herself, Young told her to "take it" and continued hitting her in the neck.

After J.P. spit up blood and began having difficulty breathing, Young called 911. Young also called the downstairs neighbors to come upstairs and help. Before paramedics arrived, Young fled because he did not want to be present if police arrived. At the hospital, doctors had to perform a difficult and potentially dangerous surgical procedure to establish an alternative airway to enable J.P. to breathe.

Young admitted committing previous assaults on J.P. He admitted strangling her about a week before the current assault. He also admitted slapping J.P. and injuring her ear, causing it to swell to four times its normal size. Young claimed he did not assault J.P. often but admitted the assaults escalated during the last two or three months of their relationship.

Young was charged by complaint with one count of first-degree assault. He agreed to plead guilty to first-degree assault in exchange for the state's agreement not to amend the complaint to include charges of attempted first-degree and second-degree murder and second-degree assault. The parties did not agree on a sentence. The plea agreement specifically provided that both the state and Young could move for a sentencing departure.

At the sentencing hearing, the state presented evidence about Young's 1987 conviction for the second-degree assault of his father. Young's father testified that Young was holding a hunting knife with a blade about six inches long during an argument with his parents. When Young's father attempted to get the knife away from Young, Young stabbed his father twice in the back. As a result of the stabbing, Young's father was hospitalized for a few days and had to undergo exploratory surgery. Young was sentenced to probation, a dispositional departure from the presumptive term, but he failed to take advantage of the opportunity for treatment. Two of Young's former girlfriends, one whom he dated in 1985 and another whom he dated in 1990-1991, also testified about assaults Young had committed on them.

In a statement at the sentencing hearing, J.P. said she wanted to continue her relationship with Young. She felt that Young had emotional problems and needed counseling. J.P. wanted Young to be sentenced to a long probationary term instead of imprisonment.

The district court sentenced Young to an executed term of 196 months, a double durational departure from the presumptive term. The court stated the departure was justified because J.P. was particularly vulnerable due to reduced physical capacity; the crime was committed with particular cruelty; Young violated J.P.'s zone of privacy; and the current conviction was for an offense in which the victim was injured and Young previously had been convicted of an offense in which the victim was injured.

D E C I S I O N

1. The decision to depart from the sentencing guidelines rests within the district court's discretion and will not be reversed on appeal absent an abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

Young argues that the record does not contain an adequate statement of the district court's reasons for departing from the guidelines. Young incorrectly claims that the district court merely summarily incorporated by reference the state's argument for departure. Although the district court did indicate that it agreed with the grounds the state asserted in support of its motion for departure, the court also specifically listed its reasons for departing and explained its sentencing decision in detail.

When considering a durational departure, the district court must determine

whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question.

State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984). The court may depart from the presumptive sentence only when substantial and compelling circumstances exist. Givens, 544 N.W.2d at 776. An aggravating factor justifying a durational departure is that the current conviction is for an offense in which the victim was injured and the defendant had a prior felony conviction for an offense in which the victim was injured. Minn. Sent. Guidelines II.D.2.b(3). This factor alone may support a double durational departure. See State v. Lomax, 437 N.W.2d 409, 410 (Minn. 1989) (double durational departure justified when current conviction involved victim injury and defendant had prior felony conviction involving victim injury).

In 1987, Young was convicted of second-degree assault for stabbing his father twice in the back. The current conviction resulted from Young assaulting his girlfriend. In both cases, Young lost control of his temper and inflicted injuries on someone with whom he had a close relationship.

In addressing Young's prior conviction, the district court noted Young's long-term history of family and domestic violence and his failure to take advantage of the opportunity for treatment following his 1987 conviction. The court also expressed concern about Young's failure to take responsibility for his actions:

[Young] has consistently minimized or excused his conduct or has shown more concern for himself than for those whom he has injured.

* * * *

He has demonstrated that he has not learned much from the prior assault incidents and he is unable to deal positively with his anger and with other emotional issues, and is presently unable to control his rage.

* * * *

There is a hope that [Young] can achieve an abiding emotional acceptance of his responsibility for his problems and can learn proper ways to deal with these problems. But the therapy undoubtedly will be long-term. Even [J.P.] acknowledged in her testimony that [Young] will need years and years of counseling.

The district court properly determined that long-term incarceration would increase the probability of Young getting the treatment he needs to enable him to control his behavior. Cf. State v. Loitz, 366 N.W.2d 744, 746-47 (Minn. App. 1985) (defendant's history of chemical abuse and disregard for its consequences supported durational departure), review denied (Minn. July 17, 1985).

Given the similarity between the two offenses and Young's ongoing history of domestic and family violence, Young's prior felony conviction for second-degree assault was sufficient to justify the double durational sentencing departure for the current conviction.

Young argues that the district court improperly disregarded J.P.'s statement. When sentencing a defendant, the district court

may consider the victim's impact statement to the extent that it states a proper reason for departure from the guidelines and is supported or corroborated by evidence in the record.

State v. Yanez, 469 N.W.2d 452, 455 (Minn. App. 1991), review denied (Minn. June 19, 1991). J.P.'s opinion that Young needed long-term counseling instead of imprisonment was contradicted by the pre-sentence investigation. The district court did not abuse its discretion by disregarding J.P.'s statement.

2. Young argues that the district court deprived him of the benefit of his plea bargain by sentencing him to 196 months imprisonment because the presumptive sentence for the dismissed charge of attempted first-degree murder was only 190 months imprisonment. See Minn. Sent. Guidelines II.G (presumptive range for attempted first-degree murder conviction when defendant has criminal history score of one is 186-194 months imprisonment).

When a defendant pleads guilty to an offense in exchange for the dismissal of other charges, the district court may not rely on facts underlying only the dismissed charges to support a sentencing departure. State v. Womack, 319 N.W.2d 17, 19 (Minn. 1982). But the district court may depart from the guidelines when the facts underlying the offense to which defendant pleaded guilty warrant a departure. See, e.g., State v. Winchell, 363 N.W.2d 747, 748, 750-51 (Minn. 1985) (affirming departure when defendant pleaded guilty to aggravated robbery in exchange for dismissal of burglary and assault charges, and departure was based on facts underlying aggravated robbery charge).

Young does not argue that the district court based the sentencing departure on facts underlying only the attempted first-degree murder charge. The facts underlying Young's assault conviction warranted the departure. Young did not condition his plea on his sentence being limited to a specified term. The plea agreement did not specify any limit on sentencing and specifically allowed both parties to move for a departure. The sentence imposed on Young did not deprive him of the benefit of his plea bargain.

Affirmed.