may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
William Richard Iverson,
Filed November 17, 1998
Ramsey County District Court
File No. K3972703
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Andrea R. Rogers, Certified Student Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Lyonel F. Norris, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Anderson, Judge.
Appellant, who pleaded guilty to first-degree assault and burglary, argues that the district court abused its discretion by imposing a sentence of 200 months for the charge of assault in the first degree rather than the presumptive sentence of 110 months. The district court found substantial and compelling reasons to justify a departure. We affirm.
On the evening of August 21, 1997, the victim was staying at the home of a friend in St. Paul. Near midnight, appellant drove to the home and waited outside until the victim and her friend returned. Appellant entered the home through the basement window and found the victim asleep. Appellant began to attack the victim by stabbing her in the shoulder with a Phillips screwdriver. Appellant punched the victim continuously until she ran upstairs, screaming. Appellant chased the victim upstairs and continued his attack on her. The victim's screams awoke her friend who was unsuccessful in restraining appellant. Appellant chased the victim back downstairs, broke into the locked bathroom where the victim was hiding, and continued to assault her. While the victim lay on the floor, bleeding from multiple stab wounds, appellant stated, "I think I'll let you live." Appellant then left the house and fled. When the police arrived, they found the victim face down on the floor, covered with blood and nearly unconscious. The victim suffered from injuries that included multiple facial and scalp lacerations and a potentially life-threatening puncture wound to the neck.
Appellant pleaded guilty to assault in the first degree in violation of Minn. Stat. § 609.221 (Supp. 1997) and burglary in the first degree in violation of Minn. Stat. § 609.582, subd.1(c) (1996). The district court sentenced appellant to an executed sentence of 68 months for burglary in the first degree, to be served concurrently with an executed sentence of 200 months for assault in the first degree. The 200-month sentence is an upward durational departure from the 110-month presumptive term for the assault charge. The presumptive sentence was based on appellant's criminal history score of 2 based on his 1993 conviction for murder in the second degree for stabbing his wife 64 times causing her death.
The district court provided the following reasons for its departure: 1) the vulnerability of the victim; 2) the particular cruelty of the attack; 3) appellant's history of violent behavior; and 4) appellant's pattern of stalking the victim. Appellant argues that the reasons enunciated by the trial court do not constitute substantial and compelling reasons for the departure. We disagree.
The vulnerability of the victim due to reduced physical or mental capacity, which was known or should have been known to the offender, is an aggravating factor that supports a sentencing departure. Minn. Sent. Guidelines II.D.2.b.(1). The victim was vulnerable because she was sleeping when appellant attacked her. See State v. Bingham, 406 N.W.2d 567, 570 (Minn. App. 1987) (finding victim was in vulnerable position when attacked while sleeping).
When the offender treats a victim with particular cruelty, departure from the presumptive sentence is warranted. Minn. Sent. Guidelines II.D.2.b.(2). Particular cruelty is conduct of a degree that typically is not associated with the commission of the offense in question. State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981). The attack by appellant on the victim was particularly cruel and beyond that which is usually associated with an assault charge because he repeatedly stabbed, punched, and chased the victim around the house while she attempted to flee. See State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987) (affirming double durational sentence departure justified because of vicious nature of attack and vulnerability of victim), review denied (Minn. Sept. 29, 1987); State v. Anderson, 370 N.W.2d 703, 706-07 (Minn. App. 1985) (prolonged beating and degrading treatment was particularly cruel and justified double durational departure for sentence on first-degree assault charge), review denied (Minn. Sept. 19, 1985).
An upward departure is also supported by a current conviction for an offense in which the victim was injured and there is a prior felony conviction for an offense in which the victim was injured. Minn. Sent. Guidelines II.D.2.b.(3). Here, the victim was severely injured by this assault for which appellant is currently being sentenced. Because appellant also has a second-degree murder conviction for causing the death of his former wife by stabbing her 64 times, an upward departure is warranted in this case. See State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985) (using sentencing guidelines to conclude that, where past crimes are violent and present crime is continuation of violence, upward departure is permissible).
These factors support the sentencing departure, even without considering the district court's additional finding that appellant stalked the victim. The district court did not abuse its discretion in concluding that substantial and compelling aggravating factors justify sentencing appellant to 200 months, which is less than a double durational departure.