This opinion will be unpublished and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

A05-1928
A05-1930

 

Amy Louise Cooper, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed August 15, 2006

Affirmed
Klaphake, Judge

 

Itasca County District Court

File Nos. K8-98-639/KO-97-2004

 

Mary M. McMahon, Suite 140, 2499 Rice Street, Roseville, MN  55113 (for appellant)

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

John J. Muhar, Itasca County Attorney, 123 Fourth Street Northeast, Grand Rapids, MN  55744 (for respondent)

 

            Considered and decided by Dietzen, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Amy Louise Cooper appeals from the district court’s order denying her postconviction challenge to her 1999 conviction of and sentence for felony murder and crime committed for the benefit of a gang under Minn. Stat. §§ 609.19, subd. 2(1), .229, subd. 2 (1998).  Appellant argues that in imposing a 210-month sentence that included a 48-month upward durational departure, the district court erred when it cited as aggravating sentencing factors (1) the particular cruelty of leaving the victim alone to die, and (2) the participation of three or more persons in the offense.  Appellant also argues that her guilty plea was not voluntary and intelligent because she was not properly informed of the basis for the departure.  Because the particular cruelty of the crime and the evidence of torture support the sentencing departure and because under then-existing law appellant waived any objection to the sentence, we affirm.

D E C I S I O N

             “Review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.”  McDonough v. State, 707 N.W.2d 384, 387 (Minn. 2006) (quotations omitted).  “[Appellate] review of issues of fact is limited to a determination of whether the evidence is sufficient to support the postconviction court's findings.”  Opsahl v. State, 710 N.W.2d 776, 782 (Minn. 2006).

            1.         Sentencing Departure 

            The particular cruelty with which appellant committed the crime was the district court’s first enumerated basis for imposing an upward durational departure from the presumptive sentence.  During the attack that led to the victim’s death, appellant planned the assault and was present when three members of her gang apprehended the victim and transported him to a secluded area where they shot him in the head, cut his brain stem, and slit his throat.  The victim was left alone to die.  At sentencing, the district court also noted that the record included medical evidence that the victim had been tortured in the hour before his death. 

            Particular cruelty of an offense is an aggravating factor for sentencing purposes under the guidelines.  Minn. Sent. Guidelines II.D.2.b.(2).  Appellant claims that leaving the victim alone to die did not constitute particular cruelty because this conduct is the norm for such crimes.  Leaving the victim alone to die, however, has been held to be particularly cruel and a proper basis for durational departure.  See, e.g., State v. Sims, 553 N.W.2d 58, 61 (Minn. App.  1996) (leaving victim alone to die after shooting evidenced particular cruelty), review denied (Minn. Oct. 29, 1996); State v. Rodriguez, 505 N.W.2d 373, 377 (Minn. Ct. App. 1993) (leaving victim alone in a van, knowing victim could not escape and was subject to exposure, evidenced particular cruelty), review denied (Minn. Oct. 19, 1993).

            Further, the sentencing departure is also supported by evidence that the victim was tortured.  The gratuitous infliction of pain constitutes particular cruelty for sentencing purposes.  State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981).   

            When there is evidence supporting the particular cruelty of the commission of a crime, this aggravating factor may provide the sole basis to justify a sentencing departure.  State v. Jones, 328 N.W.2d 736, 738 (Minn. 1983).  For this reason, and because of the gratuitous infliction of pain to the victim, we affirm the postconviction court’s decision affirming appellant’s sentence.  We decline to separately address whether the fact that the crime was committed by three or more persons could provide an independent basis for a sentencing departure.

            2.         Sentencing Waiver  

            Appellant further contends that her plea agreement was not voluntarily made because there is no evidence that she was informed about the basis for the sentencing departure.  At the time appellant was sentenced, a defendant could waive the right to be sentenced in accordance with the sentencing guidelines if the waiver was “knowing, intelligent, and voluntary.”  State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996).  Further, the defendant must be advised of the sentencing right and given the opportunity to consult with counsel, and waiver must be approved by the district court after an examination like those used by the district court for acceptance of plea agreements.  Id.;Sims, 553 N.W.2d at 60; see Minn. R. Crim. P. 15 (enumerating procedure whereby defendant is questioned by court before acceptance of guilty plea to ascertain factual basis for plea and waiver of rights associated with trial).

            The record demonstrates that the prosecutor informed appellant at her plea hearing that the durational departure was justified because she treated the victim with particular cruelty.  During a colloquy with the district court, appellant acknowledged that she was informed of the departure by her attorney and agreed to it, but she now claims that she lacked specific notice of the basis for the departure.  At the time of appellant’s plea hearing and sentencing, however, the law did not require that she be specifically informed of aggravating sentencing factors.  See Givens, 544 N.W.2d at 777; Sims, 553 N.W.2d at 60.

            Any reliance appellant places on State v. Misquadace, 644 N.W.2d 65, 72 (Minn. 2002), is misplaced because that case, which holds that a plea agreement alone does not constitute a substantial and compelling circumstance justifying a sentencing departure, was not decided until three years after appellant was sentenced and does not apply retroactively.  See Lewis v. State, 697 N.W.2d 624, 628 n.2 (Minn. App. 2005).  Under the law in effect at the time of appellant’s plea and sentencing, appellant waived any objection to the imposition of a sentence that constituted a departure from the sentencing guidelines.  Therefore, the postconviction court did not abuse its discretion in upholding appellant’s guilty plea. 

            Affirmed.