This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1750

 

Kevin Patrick Plantin, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed May 9, 2006

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. 02030925

 

Kevin Patrick Plantin, OID# 139664, MCF Rush City, 7600 – 525th Street, Rush City, MN 55069 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            This appeal is from an order denying Kevin Plantin’s postconviction petition challenging his sentences for kidnapping and attempted first-degree murder.  Because the permissive consecutive sentences do not violate Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and the court acted within its discretion in sentencing on both the attempted first-degree murder and the more serious form of kidnapping, we affirm.

F A C T S

            A jury found Kevin Plantin guilty in 2002 of attempted first-degree murder, two counts of kidnapping, burglary, and second-degree assault.  The district court sentenced him in January 2003 to 86 months on one count of kidnapping and a consecutive 180 months for attempted first-degree murder.  In a direct appeal, Plantin raised six claims of trial error but did not challenge his sentence.  This court affirmed the conviction, and the supreme court denied review.  State v. Plantin, 682 N.W.2d 653 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004). 

            The facts underlying the convictions involved conduct Plantin committed against a woman he had been dating for four years.  The woman’s brother and daughter heard her calling, “Help me,” from inside a locked garage.  Id. at 656.  Shortly before police arrived, she emerged bleeding, with duct tape around her wrists and ankles.  Id.  She collapsed and was taken to the hospital.  Id.  Police entered the garage and found Plantin unconscious near a vacuum hose that was connected to the exhaust pipe of a car with its engine running.  Id.

            Plantin filed a pro se postconviction petition in May 2005, arguing that his sentence for kidnapping should be vacated, that the consecutive sentencing was not permitted under the sentencing guidelines, that the judicial findings on the consecutive sentence violated his right to a jury trial under Blakely, and that he was charged only with the less-serious form of kidnapping that carried a presumptive sentence of twenty-one months stayed, not the eighty-six month executed sentence that the district court imposed.  The district court rejected Plantin’s arguments and denied the petition without holding a postconviction hearing.  This appeal followed.

D E C I S I O N

            Plantin raises four challenges to his consecutive sentences for kidnapping and attempted first-degree murder:  that the Minnesota Sentencing Guidelines do not permit the convictions to be sentenced consecutively, that the judicial findings are constitutionally impermissible under Blakely, that he can only be sentenced on the less-serious kidnapping charge, and that the guidelines do not permit a sentence on both convictions.

            First, Plantin argues that consecutive sentencing was not permissive because both offenses were committed against the same victim.  In support of this argument, he points to the guidelines provision on permissive consecutive sentencing, which refers to multiple, current convictions for “crimes against persons.”  Minn. Sent. Guidelines II.F (emphasis added).  But the comment states that consecutive sentencing is permissive “when the offenses involve a single victim.”  Id., cmt II.F.04.  Although the kidnapping and the attempted murder were part of a single behavioral incident, multiple sentencing is permitted under Minn. Stat. § 609.251, the statutory exception for kidnapping.  See Minn. Stat. § 609.251 (2004) (providing that conviction of kidnapping does not bar conviction or punishment for any other crime committed during kidnapping).  Therefore, we reject Plantin’s argument that the guidelines do not allow for consecutive sentencing on his convictions.

            Second, Plantin argues that the sentences were based on judicial findings and therefore violated his constitutional right to a trial under Blakely.  This court has held that Blakely does not invalidate judicial findings on permissive consecutive sentencing under the guidelines.  State v. Senske, 692 N.W.2d 743, 748-49 (Minn. App. 2005), review denied (Minn. May 17, 2005).  Although Plantin argues that Senske is distinguishable because it involved multiple victims, Senske’s holding does not rely on that distinction.  Indeed, a finding that a crime is a “crime against persons” is made by a judge whether or not the crime is against a single victim or multiple victims.  Plantin’s attempt to distinguish Senske reads too much into the plural of “persons,” just as his previous argument places disproportionate reliance on the use of the plural in the guidelines.

            Third, Plantin argues that he should have been sentenced for the less-serious rather than the more-serious form of kidnapping.  As Plantin points out, the complaint charged him with two counts of kidnapping, neither of which specified the statutory provision for the more-severe sentence in Minn. Stat. § 609.25, subd. 2(2) (2004), when the victim is not released in a safe place or suffers great bodily harm during the offense.  The complaint and amended complaint both charged Plantin under subdivision 2(1), the less-serious kidnapping offense, even though the facts alleged in the probable-cause portion of the complaint corresponded to the elements of the more-serious kidnapping offense, that the victim was not released in a safe place and suffered great bodily harm.

            The district court, in denying the petition, noted that the jury’s verdict found Plantin guilty of the more-serious type of kidnapping because the jury’s verdict explicitly found the victim was not released in a safe place and suffered great bodily harm.  The district court agreed that this was not the level of kidnapping charged in the complaint, but concluded that Plantin was not misled by the citations in the complaint.

            A complaint may be constructively amended during trial so long as the amendment does not charge an additional or different offense and does not prejudice the defendant’s substantial rights.  State v. Guerra, 562 N.W.2d 10, 12-13 (Minn. App. 1997).  Based on the offenses as presented in the jury instructions and the verdict forms provided for the jury, Plantin was charged with the same kidnapping of the same person, occurring on the same date, as that charged in the offense.  Cf. id. at 13 (holding that constructive amendment of complaint during trial to charge possession of different type of stolen guns, on different date, and found in different place, charged different offense).

Plantin did not object to the submissions and rulings that resulted in the constructive amendment.  Plantin’s attorney did not object to a kidnapping instruction being given with great bodily harm as an element.  The evidence showed that the victim was not released at all and certainly not in a “safe place,” and that when she was taken to the hospital she lapsed into a coma, which indisputably constitutes great bodily harm.  Even at sentencing, Plantin’s attorney agreed that Plantin should be sentenced for kidnapping without release in a “safe place.”  Finally, and perhaps most importantly, Plantin was being retried following a mistrial, and at the earlier trial the court had also submitted the more-serious degree of kidnapping to the jury.  Therefore, the constructive amendment occurred before the retrial took place.  We conclude that Plantin was not unfairly prejudiced by the constructive amendment of the kidnapping charge.  He was well aware that the state was proceeding on the more-serious charge, and he waived any objection to it.

            Finally, Plantin argues that he cannot be sentenced on both the kidnapping and the attempted first-degree murder.  His argument is based on Comment II.C.06 of the Minnesota Sentencing Guidelines, which provides that when there are multiple current convictions and the most severe of the offenses is an attempt, the presumptive sentence duration “shall be the longer of (1) the duration for the attempt . . . conviction, or (2) the duration for the next most severe offense of conviction.” 

            This provision does not, by its terms, limit multiple sentencing, and Plantin does not cite, neither has this court found, any cases construing this language to limit the district court’s authority to sentence on more than one count.  We conclude that the comment was intended to provide a method for calculating the presumptive sentence when the court, under some other provision, is limited to sentencing on only one of the offenses.  Multiple sentencing, however, is permitted under Minn. Stat. § 609.251 when one of the charges is kidnapping.  Therefore, this guidelines provision does not apply to Plantin’s convictions.  We conclude that Plantin was properly sentenced for both the kidnapping and the attempted first-degree murder.

            Affirmed.