This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-99-921

Michael Aundrey Harper, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed November 30, 1999
Affirmed
Schumacher, Judge
Dissenting, Randall, Judge

Hennepin County District Court
File No. 96040344

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Appellant Michael Aundrey Harper argues the district court erred when it imposed a consecutive sentence for kidnapping in conjunction with a more-than-double durational departure for first-degree criminal sexual conduct because severe, aggravating circumstances are not present. We affirm.

FACTS

On March 17, 1996, Minneapolis Police Officer Nancy Olsen arrived at the LaSalle Court parking ramp. She spoke with B.A.P., an adult female, who told Olsen she had been sexually assaulted. B.A.P. stated that a man opened her driver's-side door, got in, and demanded money. When B.A.P. asked if he had a weapon, the man gestured to his jacket pocket. The man took the few dollars from her, pulled open her blouse, and touched her breasts. He removed her identification tag and attempted unsuccessfully to use the string from the tag to tie her wrists. He took some cash from her purse and demanded her cash card and personal identification number. The man also punched B.A.P. in the face.

Using the straps from her purse, the man tied B.A.P.'s hands together, pulled down her pants, and penetrated her vaginally with his fingers and penis. The man then held her head down on the seat, demanded more cash, and asked her what was in the trunk. He moved her to the backseat and covered her head with a blanket and her coat.

The man then drove B.A.P.'s car to a remote section of the ramp, began playing with her key chain, which held a pen knife, and threatened to use the pen knife on her. The man told B.A.P. that he knew where she lived and she would have to live with the fear that he would find her. After trying unsuccessfully to open the car's trunk, the man returned, pushed B.A.P. back down on the seat, and left. The man was captured on a surveillance tape from a parking-ramp security camera while entering the parking area and later in the parking area lobby.

After confessing to police that he robbed and raped a woman in the LaSalle Court parking ramp, Harper pleaded guilty in Hennepin County District Court to one count each of first-degree criminal sexual conduct, kidnapping, and first-degree aggravated robbery. As part of the plea agreement, the parties agreed to a cap of 240 months imprisonment. The district court sentenced Harper to 196 months for the first-degree criminal sexual conduct conviction, a concurrent term of 62 months for the aggravated robbery conviction, and a consecutive 44-month term for the kidnapping conviction.

Harper filed a petition for postconviction relief, arguing that the consecutive sentence for the kidnapping is not supported by severe, aggravating factors. The district court denied Harper's request for a concurrent sentence, but reduced the duration of the kidnapping sentence from 44 months to 21 months. Harper appeals from the order denying him postconviction relief.

D E C I S I O N

Applying Minn. Stat. 609.346, subd. 4 (1996),[1] the district court sentenced Harper to 172 months, a double durational departure, for the criminal-sexual-conduct conviction after finding the following aggravating factors: (a) the rape involved multiple forms of penetration; (b) Harper demonstrated particular cruelty by tying up and threatening B.A.P.; (c) B.A.P. suffered numerous physical injuries; and (d) B.A.P. suffered severe psychological trauma as a result of the crime. Harper does not challenge this durational departure but contends the district court erred in adding to it a consecutive sentence for his first-degree kidnapping conviction.

"When a defendant is sentenced for both kidnapping and a crime that was committed during the kidnapping, the sentences are presumed to be concurrent." State v. Butterfield, 555 N.W.2d 526, 532 (Minn. App. 1996) (citation omitted), review denied (Minn. Dec. 17, 1996). The district court may depart durationally and order consecutive service for sentences imposed for kidnapping and an offense committed during the kidnapping, but such a sentence is a departure from the guidelines that must be supported by severe aggravating circumstances. Id; see also State v. Jackson, 596 N.W.2d 262, 267 (Minn. App. 1999) (holding consecutive sentencing may be combined with double durational departure when severe aggravating circumstances are present), review denied (Minn. Aug. 25, 1999). The decision whether severe aggravating circumstances are present "must be based on [the court's] collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts." State v. Norton, 328 N.W.2d 142, 146-47 (Minn. 1982).

Here, the district court found that a departure with respect to consecutive service was warranted because Harper's behavior during the kidnapping further terrorized B.A.P.,

by the implication that you were going to be putting her into the trunk of the car, your insistence on how to get into the trunk of the car, the covering of her head and driving her around; that that psychological trauma was probably as great as what happened during the criminal sexual conduct behavior.

Contrary to Harper's contention, the psychological trauma relied on by the district court to justify the upward durational departure for Harper's conviction for criminal sexual conduct is not the same as the psychological trauma inflicted during the kidnapping. The former involved Harper's tying up B.A.P., his taunting her, covering her head, and threatening to use the pen knife against her, as well as Harper's statement that she would have to continue to live in fear of him because he knew where she lived. The psychological trauma of the kidnapping involved Harper's implied threat that he was going to place B.A.P. in the trunk of her car.

We are satisfied that the psychological terror and trauma inflicted on the victim by Harper constitutes a severe aggravating circumstance justifying the district court's departure with respect to consecutive service. See State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988) (holding infliction of psychological injury constitutes severe, aggravating circumstance); State v. Mortland, 399 N.W.2d 92, 95 (Minn. 1987) (holding severe aggravating circumstance present where victim suffered serious psychological damage as result of crime).

Affirmed.

 

RANDALL, Judge (dissenting).

I respectfully dissent. While I agree that aggravating circumstances are present here justifying an upward durational departure, I do not agree that severe, aggravating circumstances are present to justify the district court's additional departure with regard to consecutive service. Minnesota has, for some time, differentiated between aggravating circumstances and severe aggravating circumstances.

We know from caselaw that the circumstances needed to support a departure with respect to consecutive service, when combined with a durational departure, must not only be aggravating, but they must be severe. See Rairdon v. State, 557 N.W.2d 318, 327 (Minn. 1996) (holding consecutive sentencing may be combined with double durational departure only "when the aggravating circumstances are severe." (citation omitted)); see also State v. Rachuy, 502 N.W.2d 51, 52 (Minn. 1993) (holding durational departure and departure with respect to consecutive service may be imposed only when severe aggravating circumstances are present); State v. Wellman, 341 N.W.2d 561, 566 (Minn. 1983) (same).

Generally, when an upward durational departure is warranted, the upper limit is double the presumptive sentence. State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). Under the Evans limitation, the district court is ordinarily "limited to a double durational departure and cannot use the same general factors to justify an additional departure for consecutive service of sentences." State v. Leonard, 400 N.W.2d 206, 209 (Minn. App. 1987) (citation omitted). Sentences for both kidnapping and a crime that was committed during the kidnapping are presumed to be concurrent. State v. Butterfield, 555 N.W.2d 526, 532 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996). As the majority states correctly, the district court may depart durationally, facts permitting, and I agree on the sexual assault. But with respect to consecutive service for the two sentences imposed for kidnapping and an offense committed during the kidnapping, the district court could depart upwardly again (impose a consecutive rather than a concurrent sentence) only if severe aggravating circumstances are present. See id.

Here, the district court found that a departure with respect to consecutive service was warranted because Harper's behavior during the kidnapping further terrorized B.A.P.,

by the implication that you were going to be putting her into the trunk of the car, your insistence on how to get into the trunk of the car, the covering of her head and driving her around; that that psychological trauma was probably as great as what happened during the criminal sexual conduct behavior.

I conclude that the record supports only the upward departure on Harper's criminal-sexual-conduct conviction, not the district court's additional departure with respect to consecutive service on the kidnapping conviction.

While the multiple forms of penetration and the physical, psychological, and emotional injuries suffered by B.A.P. support the district court's upward durational departure with respect to the first-degree criminal-sexual-conduct conviction, these factors may not be used again to support a departure with respect to consecutive service for the kidnapping conviction. See Leonard, 400 N.W.2d at 209 (holding district court normally limited to double durational departure and may not use same general factors to justify additional departure for consecutive service of sentences).

Further, severe aggravating circumstances were not present during the kidnapping to support the consecutive service of sentences imposed by the district court. After sexually assaulting B.A.P., Harper simply drove B.A.P. from one location in the parking ramp to another. During this time, there is no evidence that Harper threatened B.A.P. or that he physically assaulted her. The record establishes that before Harper moved B.A.P., he simply asked what was in the trunk, and attempted to open the trunk. At no time did he threaten to put B.A.P. in the trunk of the car. The fact that Harper covered B.A.P.'s head while he drove around in the parking ramp does not rise to the level of a "severe" aggravating factor.

The state argues that consecutive service on the kidnapping conviction is appropriate because Harper agreed to aggregate sentencing up to a cap of 240 months for the charged offenses. The state argues that since the district court's total sentence was 217 months, the sentence falls within the terms of the plea agreement. The state misconstrues the holding in State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996), which states that a defendant may, pursuant to a plea bargain, agree to a departure from the sentencing guidelines. Had Harper agreed to a fixed term of 220, or 230, or 240 months, etc., he could not complain under Givens, since in that hypothetical set of facts he would have gotten exactly what he bargained for. But since Harper only agreed to "a cap of," rather than to an exact fixed term, it is still incumbent on the state to justify whatever the upward departure is. I agree with the majority that the state justified the upward departure on the sexual assault; but I conclude the state did not justify the additional upward departure of consecutive sentencing. Further, I conclude it would be improper, as the state urges, to uphold Harper's sentence solely on the ground that he agreed to aggregate sentencing "up to" a cap of 240 months.

I would reverse the district court's decision that ordered Harper's conviction for kidnapping to be served consecutively to an upward departure sentence for first-degree criminal-sexual conduct.

 

[1] Minn. Stat. 609.346, subd. 4 (1996), provides that the court shall sentence a person to at least twice the presumptive sentenced recommended by the sentencing guidelines if the person is convicted of first-degree criminal sexual conduct where the complainant has a reasonable fear of imminent great bodily harm and the court finds that the crime involved an aggravating factor that would allow an upward departure under the guidelines. This statute remains the applicable law for this case, although it was repealed and replaced by Minn. Stat 609.109, subd. 6 (1998), effective August 1, 1998. 1998 Minn. Laws ch. 367, art. 6, 16.