This opinion will be unpublished and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

C1-96-717

State of Minnesota,

Respondent,

vs.

Bennie Uranus Stafford,

Appellant.

Filed February 18, 1997

Affirmed

Willis, Judge

Ramsey County District Court

File No. KX952189

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, Ramsey County Government Center-West, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue, Suite 600, Minneapolis, MN 55414 (for Appellant)

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

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

WILLIS, Judge

Bennie Stafford appeals his conviction and sentence on one count of first-degree burglary and two counts of fifth-degree assault, arguing (1) his first assault conviction must be vacated as an offense included in his burglary conviction and (2) the district court's imposition of a consecutive sentence for the second assault conviction unduly exaggerates the criminality of his conduct. In his pro se brief, Stafford contends he did not knowingly and intelligently waive his right to counsel. We affirm.

FACTS

In October 1994, Diane Jackson, Stafford's former girlfriend, obtained a two-year restraining order against Jackson. On the evening of June 22, 1995, Stafford entered Jackson's apartment without permission. Stafford began fighting with Jackson and hit her in the face. Ciara Troy, Jackson's nine-year-old daughter, ran out the front door of the apartment to telephone for help. Stafford ran after her, tackled her, and carried her back into the apartment. After Jackson and Stafford argued further, Jackson and Troy left the apartment at approximately 2:00 a.m., with Stafford following them. Troy stopped an officer in his patrol car, and Stafford fled. Jackson was bleeding from one corner of her mouth from being struck by Stafford, who was charged with fifth-degree assault. As a condition of Stafford's pretrial release, the district court ordered him to have no contact with Jackson.

On October 30, 1995, two weeks before trial on the assault charge was scheduled to begin, Stafford returned to Jackson's apartment. Again Stafford fought with Jackson, hitting her in the face and head. Troy called the police, and Stafford ran from the apartment. Stafford was charged with one count of fifth-degree assault for the October incident. In November 1995, the complaint for the June 1995 incident was amended to include one count of first-degree burglary, and the charges from the June and October incidents were joined for trial. Stafford proceeded pro se, and the jury found him guilty on all three counts. The district court sentenced Stafford to serve 132 months for the burglary conviction, a concurrent 15 months for the first assault conviction, and a consecutive 12 months for the second assault conviction. This appeal follows.

D E C I S I O N

1. Minn. Stat. § 609.04.

Stafford was convicted of first-degree burglary and fifth-degree assault. He argues that his fifth-degree assault conviction must be vacated under Minn. Stat. § 609.04, subd. 1 (1996), which prohibits a person from being convicted of both the crime charged and an included offense. We disagree. "Notwithstanding section 609.04, a * * * conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered." Minn. Stat. § 609.585 (1996).

2. Consecutive Sentencing.

Under the Minnesota Sentencing Guidelines, concurrent sentences are presumed unless an exception exists or there are aggravating circumstances. State v. Branson, 529 N.W.2d 1, 5 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995). Because none of the exceptions for permissive consecutive sentencing is present here, the district court's imposition of consecutive sentences is a departure. See Minn. Sent. Guid. II.F. (listing three circumstances in which consecutive sentences are permitted and stating that the use of consecutive sentences in any other case is a departure).

Stafford contends that the imposition of a consecutive sentence for the second assault unfairly exaggerates the criminality of his conduct because there were no serious injuries and his conduct was no different from the "typical" fifth-degree domestic assault. The district court has broad discretion in deciding whether to depart from the sentencing guidelines. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The propriety of a departure depends on whether the defendant committed the offense in question "in a particularly serious way." Ture v. State, 353 N.W.2d 518, 525 (Minn. 1984). Severe aggravating circumstances must be present for a court to depart by imposing consecutive sentences. Branson, 529 N.W.2d at 5.

In departing from the presumptive sentence, the district court explained that (1) Stafford violated the victim's zone of privacy, (2) he assaulted her in the presence of a child, and (3) he committed the offense in violation of the no-contact order and a mere two weeks before the trial scheduled on the first assault. A defendant's invasion of the zone of privacy surrounding a victim's home and the commission of an offense in front of a child are both grounds for departure. State v. Winchell, 363 N.W.2d 747, 750-51 (Minn. 1985). Moreover, the sentencing court may "consider the course of conduct underlying the charge for which the defendant is being sentenced." State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984). The record here shows that Stafford engaged in a course of assaultive and intimidating conduct despite court orders prohibiting him from having contact with Smith. The district court did not abuse its discretion by imposing a consecutive sentence for the second assault.

3. Pro Se Claims.

Stafford argues that by allowing him to proceed pro se without requiring a competency hearing, the district court violated his right to equal protection and his right to effective assistance of counsel. Stafford fails to state an equal protection claim because he does not challenge any classification. See Davis v. Davis, 297 Minn. 187, 192, 210 N.W.2d 221, 225 (1973) (asserting that in deciding whether a law violates the equal protection clause, a court must consider (1) the character of the classification; (2) the individual interests affected by the classification; and (3) the governmental interests asserted in support of the classification).

When a criminal defendant asks to represent himself, the court must determine (1) whether the defendant made a clear and timely request to waive his right to counsel and (2) whether the defendant knowingly and intelligently waived such right. State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990). A court is not required to hold a competency hearing unless the court has sufficient cause to doubt the defendant's competence. Minn. R. Crim. P. 20.01, subd. 2. A defendant who is competent to stand trial is also competent to exercise the right to represent himself. State v. Thornblad, 513 N.W.2d 260, 262-63 (Minn. App. 1994).

The district court here had no reason to doubt Stafford's competence to waive his right to counsel. Stafford told the court that he wished to represent himself, he had discussed the matter with his public defender, he had completed his G.E.D., and he had been on trial before. The court told Stafford that he would have to follow the same rules as attorneys, the court could not help him, and Stafford's public defender would become standby counsel. Stafford did, in fact, consult with standby counsel during the trial. The district court did not err in finding that Stafford knowingly and intelligently waived his right to counsel. See State v. Jones, 266 N.W.2d 706, 711-12 (Minn. 1978) (upholding the district court's finding that defendant's waiver was valid where the court advised defendant against representing himself, the court informed defendant that his appointed counsel would become standby counsel, and defendant sought and received assistance from standby counsel at trial).

Affirmed.