This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Clement Rom Clark, Sr.,


Filed March 2, 1999


Harten, Judge

Dissenting, Randall, Judge

Ramsey County District Court

File No. K5-98-221

Michael A. Hatch, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue SE, #600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Harten, Judge, and Shumaker, Judge.



Appellant Clement Rom Clark, Sr., challenges the sentence imposed by the district court after his guilty plea to second-degree assault, Minn. Stat. § 609.222, subd. 2 (1996) (dangerous weapon; substantial bodily harm). On the state's motion for an upward sentencing departure, the district court sentenced appellant to 78 months imprisonment, a double upward durational departure from the presumptive sentence of 39 months for commission of a level IV offense by a person with three criminal history points. Because we conclude that the district court did not abuse its discretion by basing its upward departure on the basis of particular cruelty, we affirm.


On January 16, 1998, the victim and his friends were standing on a sidewalk when appellant and his brother drove up, jumped out of the car, and assaulted the victim. Appellant's brother struck the victim in the head with a tire iron and then held him down while appellant punched the victim and stabbed him multiple times with a pocketknife. The victim was treated for lacerations to his head, a depressed skull fracture, and four abdominal stab wounds. He now has a plate in his head, suffers from short-term memory loss, and cannot return to work. Appellant alleges that his actions were in retaliation for the victim's previous assault on appellant.


Whether to depart from sentencing guidelines rests within the district court's discretion, which we will not reverse absent abuse of discretion. See State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). An upward departure is within the sentencing court's discretion if substantial and compelling aggravating circumstances are present. Id.

The district court departed from the presumptive sentence because "the offense was perpetrated with particular cruelty and the victim * * * was in a particularly vulnerable situation as the assault continued * * *." It also departed for other reasons involving appellant's history of violence, his dangerousness as an individual, and his alcohol problems. The district court opined that appellant committed the assault with a level of violence that exceeded the violence usually associated with this degree of assault. Appellant argues correctly that two of the court's departure justifications are improper; he miscasts another and cannot validly dispute the fourth.

Appellant correctly argues that his history of violence, individual dangerousness, and alcohol problems are not permissible grounds on which a court may base an upward departure. State v. Gardner, 328 N.W.2d 159, 162 (Minn. 1983) ("[d]efendant's chemical dependency problem and his dangerousness are not the sort of factors which * * * [justify] a durational departure."). Appellant is also correct in his argument that the victim was not "vulnerable" as contemplated by the sentencing guidelines. A victim is particularly vulnerable due to "age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender." Minn. Sent. Guidelines II.D.2.b.(1). The fact that a victim was rendered helpless by the crime itself is not a valid basis for departure. See State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988) (vulnerability was an invalid basis for upward departure where victim was bound and gagged but not physically or mentally incapacitated), review denied (Minn. May 18, 1988).

Appellant incorrectly states that the district court based its departure on its observation that "Clark's conduct seemed to constitute a more serious offense."[1] There is no support for this in the record; the court in fact said,

"[i]t's amazing to me that you and the other individual charged here aren't facing murder charges. I mean, by all rights, this person * * * should have died * * * the degree of violence here * * * is so far beyond any stretch of comprehension * * * *."

The district court did not mean to imply that appellant should have been convicted of murder, but instead to highlight the severity and cruelty of the crime. Thus, appellant's objection to his departure based on what he erroneously characterizes as a court finding is misplaced.

Finally, appellant argues that it was improper to base the departure on cruelty. Under the sentencing guidelines, cruelty is an aggravating factor that may be used for a departure when "[t]he victim was treated with particular cruelty for which the individual offender should be held responsible." Minn. Sent. Guidelines II.D.2.b.(2). Cruelty is a matter of degree, and it is not easy to say when a departure is justified.

Holmes v. State, 437 N.W.2d 58, 59 (Minn. 1989). The ultimate question, though, is whether appellant's actions were so significantly different from those of other persons similarly situated that an upward sentencing departure is justified. See State v. Esler, 553 N.W.2d 61, 64 (Minn. App. 1996), review denied (Minn. Oct. 15, 1996). "Gratuitous infliction of pain will qualify as particular cruelty." State v. Smith, 541 N.W.2d 584, 590 (Minn. 1996) (quotation omitted).

Appellant argues that his behavior was not particularly cruel for second-degree assault and cites Holmes for support. Holmes involved a second-degree murder where the victim was killed with a large hunting knife. Holmes, 437 N.W.2d 58-59. While finding the crime to be reprehensible, the trial court there reflected that every murder case is reprehensible and the murder under consideration was not more so than most. Id. at 59-60. Holmes is distinguishable from the instant case because the district court here specifically found that the level of violence for second-degree assault was atypical. We agree. Appellant and his brother surprised the victim; appellant's brother hit the victim in the head with a tire iron and held him down while appellant repeatedly punched and stabbed him. Thus, the record supports the district court's finding.

We conclude that the district court did not abuse its discretion in finding that appellant committed the assault with particular cruelty, which alone can justify a double departure. See State v. Harwell, 515 N.W.2d 105, 109 (Minn. App. 1994), review denied (Minn. June 15, 1994). A double upward durational departure is therefore justified.


RANDALL, Judge (dissenting).

I respectfully dissent. I disagree with the majority's interpretation of State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), overruled in part on other grounds by State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996), which infers the district courts have a generic "abuse of discretion" threshold when deciding to depart. I suggest the uncontradicted clear standard is set forth in State v. Best, 449 N.W.2d 426, 427 (Minn. 1989), which emphasized that "if aggravating or mitigating circumstances are not present, the trial court has no discretion to depart."

Basically, there is no "discretion" to depart unless substantial and compelling circumstances are present. Even when there are substantial and compelling circumstances present, the presumptive sentence remains the presumptive sentence. A district court should never be criticized for failing to depart upward.

I suggest that Holmes v. State, 437 N.W.2d 58 (Minn. 1989), wherein the Minnesota Supreme Court reversed an upward departure of the district court on an intentional murder and reinstated the lengthy presumptive sentence, controls this case. In Holmes, the defendant chased his wife on foot, caught her, and then stabbed her at least three times with a large hunting knife. Id. at 58. In modifying the defendant's sentence to the presumptive sentence, the supreme court stated:

We have no choice but to conclude that the departure was unjustified because we believe that the conduct involved in this case of intentional murder was not significantly different from that typically involved in the commission of that crime.

Id. at 59-60.

I disagree with the majority's statement that "Holmes is distinguishable from the instant case because the district court here specifically found that the level of violence for second-degree assault was atypical." In Holmes, the district court also found the assault was atypical. A district court finding is not determinative on appellate review. What is determinative on appellate review is the record.

I cannot conclude that this physical assault was "atypical" or any more egregious than any other assault with a pocketknife. The majority lists three reasons to justify the district court's conclusion that the assault was atypical. To me, none of the three reasons is persuasive. First, it is disingenuous to say that "surprising the victim" is atypical. While some victims may know that danger of an imminent assault is present, the vast majority of assaults, physical, sexual, and otherwise, take the victim by surprise. Surprising the victim is more normal or typical than not.

Secondly, it is not atypical of an assault with a knife that the victim was stabbed with a knife. To note that observation is to prove it.

Thirdly, it is not atypical of a serious assault that the defendant punched and stabbed the victim more than once, just as in Holmes. That is what serious assaults are all about. Calm, cool, collected, premeditated assaults wherein the defendant strikes the victim one clean surgical blow with a fist or a deadly instrument and then having hit the victim once, immediately disappears, are atypical assaults. The lengthy presumptive sentence was constructed to include the standard serious assault which, when a weapon such as a knife or a bat or a tire iron is used, will typically involve more than one blow.

Most importantly, I concur with the reasoning of the attorney for appellant, who argued vigorously that the district court's personal dislike of the facts of the crime and dislike for the defendant led the district court to depart upward, just as if the conviction had been for a more serious crime. The court stated:

"It's amazing to me that you and the other individual charged here aren't facing murder charges. I mean, by all rights, this person * * * should have died * * *. [T]he degree of violence here * * * is so far beyond any stretch of comprehension * * *."

I disagree with the majority's decision to minimize the importance that statement had on the ultimate sentence. It does not matter whether that statement is technically "a court finding." More importantly, it is a clear statement of the district court's abhorrence of the crime and the defendant. It is an honest statement of the district court's feelings. There is nothing wrong with making an honest statement, but logic compels only the conclusion that the judge's personal feelings, which are not a basis in the sentencing guidelines for an upward departure, were the moving force behind this departure. In a system of justice where we differentiate a physical assault where the victim does not die (those are termed assaults) from assaults where the victim dies (those are legally termed homicides), it is simply not due process to arbitrarily ratchet up a defendant's presumptive sentence because hypothetically the consequences could have been worse.

I dissent and would reverse and remand to the district court to impose the presumptive sentence for assault in the second degree.

[1] Appellant correctly points out that if the court did use this as a basis, it would not justify departure. See State v. Kisch, 346 N.W.2d 130, 132 (Minn. 1984).