Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
State of Minnesota,
Filed December 2, 1997
Hennepin County District Court
File No. 96064245
John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Hubert H. Humphrey III, Attorney General, 102 State Capitol, St. Paul, MN 55155 (for respondent)
Michael O. Freeman, County Attorney, Jean E. Burdorf, Assistant County Attorney,
C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Willis, Judge.
In an appeal from the denial of postconviction relief, Erich Graumann challenges the imposition of an upward sentencing departure. Because the evidence supports the district court's finding that Graumann's conduct was significantly more serious than that typically involved in second degree burglary, we affirm.
Graumann filed a petition for postconviction relief in May 1997 alleging that the district court abused its discretion when it originally imposed the thirty-six month sentence. Graumann further alleged that the district court refused to consider mitigating psychological factors. The district court denied Graumann's petition and he appeals the denial, asserting the court (1) made erroneous findings, (2) impermissibly included postsentencing material as part of the appellate record, and (3) abused its discretion in sentencing.
We agree that the letters are not relevant to the postconviction issues. But the inclusion of the letters in the file is neither error nor prejudicial. See State v. Rean, 416 N.W.2d 790, 793 (Minn. App. 1987) (exhibits are part of appeal record whether accepted into evidence or rejected), rev'd on other grounds, 421 N.W.2d 303 (Minn. 1988), review denied, (Minn. April 14, 1988). The letters could not have affected the court's decision to depart upward in its sentencing because they were not in existence at the time of sentencing.
In its order denying Graumann's petition for postconviction relief, the district court acknowledged Graumann's history of harassing his former girlfriend was not a proper ground for an upward departure. The court stated three other reasons for departure: (1) Graumann violated an order for protection in committing the burglary; (2) he inflicted serious psychological injury on the victim; and (3) he acted with particular cruelty.
In burglarizing his former girlfriend's residence, Graumann violated an order expressly prohibiting him from going to her home. Violation of an order for protection is an aggravating circumstance. State v. Coley, 468 N.W.2d 552, 556 (Minn. App. 1991). In addition, this burglary was more serious than a typical burglary offense. Ordinarily a burglar enters a dwelling to steal. Graumann, however, broke into his former girlfriend's residence intending to terrorize her. This motivation and its intended effect support the district court's finding that Graumann acted with particular cruelty and that Graumann's conduct inflicted serious psychological injury.
Graumann alleges the district court failed to consider his psychological condition as a factor offsetting the aggravating factors. The district court examined three separate psychological evaluations and found nothing in them that indicated Graumann lacked substantial capacity for judgment at the time of the offense.
Graumann violated a restraining order and committed the burglary with the intent to intimidate and scare the victim. On these facts the district court did not abuse its discretion when it imposed an upward departure. Graumann has also filed a pro se brief raising issues related to the length of his sentence. For the reasons stated in our analysis, we conclude that the upward departure is supported by the record.