This opinion will be unpublished and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

A05-1726

 

Rickey Maddox, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed October 10, 2006

Affirmed

Randall, Judge

 

Olmsted County District Court

File No. 55-CO-02-004659

 

 

Michael C. Davis, Special Assistant Public Defender, 332 Minnesota Street, Suite 1610 West, St. Paul, MN  55101 (for appellant),

 

Rickey Maddox, MSDF, Pod # 6A, Bcd – 18 Lower, P.O. Box 05911, Milwaukee, WI  53205-0911 (pro se appellant),

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN  55904 (for respondent).

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

 

U N P U B L I S H E D    O P I N I O N

RANDALL, Judge.

This is an appeal from an order denying appellant’s postconviction petition which challenged his 2002 sentence for third-degree assault.  Appellant has already benefited by two remand from this court.  Appellant argues now that the district court erred in concluding his 1989 Wisconsin sexual assault convictions against a single, underage victim constituted two separate behavioral incidents.  Appellant argues he improperly received two criminal history points for these convictions.  Appellant argues that if the criminal history score was properly calculated (lowered to one), the career offender statute would not apply.  Appellant also argues that even if the career offender statute applies, the nearly triple upward durational departure was not supported by the record.  Finally, appellant raises claims of prosecutorial and judicial misconduct and ineffective assistance of counsel in a pro se supplemental brief.  We affirm

FACTS

 

The facts are mostly undisputed.  On December 11, 2001, appellant Rickey Maddox beat his live-in girlfriend at a park in Rochester because she would not give him money.  Maddox’s girlfriend’s right-eye orbit was fractured, her nose was bent and bleeding, and her face was bruised.  After causing her injuries and without rendering medical assistance, Maddox left the park with his girlfriend’s car and drove it to Memphis, Tennessee.  Maddox was in possession of his girlfriend’s car when he was arrested in Memphis. 

            In January 2002, Maddox was charged with first-degree robbery under Minn. Stat. § 609.245, subd. 1 (2000); third-degree assault under Minn. Stat. § 609.223, subd. 1 (2000); theft of a motor vehicle under Minn. Stat. § 609.52, subd. 2(17) (2000); and fifth-degree assault under Minn. Stat. § 609.224, subd. 1(2) (2000).  Maddox entered into a plea agreement with the state.  Under the terms of the plea agreement, Maddox pleaded guilty to the third-degree assault charge, the other counts on the complaint were dismissed, and there was a joint recommendation to the court to sentence Maddox to an executed 60-month term.  The district court accepted the plea and sentenced Maddox to the 60-month term stating that the reasons for the nearly triple upward departure in sentencing were: Maddox’s two previous violent-crime convictions; that Maddox’s conduct established three aggravating factors; and that he agreed to be sentenced under the career-offender statute, Minn. Stat. § 609.1095, subd. 2 (2000). 

            Maddox filed a pro se petition for postconviction relief that requested an evidentiary hearing and a reduction in sentence from 60 to 21 months.  The postconviction court denied Maddox’s request for an evidentiary hearing and his request for a reduction in sentence. 

            Maddox appealed the postconviction court’s denial of his petition.  Maddox was represented by a public defender for the appeal.  This court reversed and remanded the district court’s denial of Maddox’s requests.  Maddox v. State, A03-398, 2004 WL 77845, *3 (Minn. App. Jan. 20, 2004).  This court held “[w]e find the record here inadequate to answer questions raised by appellant’s postconviction petition . . . [and] an evidentiary hearing on his postconviction petition, where appellant’s criminal history can be examined and testimony of conversations between appellant and his trial counsel can be evaluated, must be held.”  Id. 

            The postconviction court held an evidentiary hearing regarding the postconviction relief that Maddox had sought.  Maddox’s request for postconviction relief was again denied.  Maddox appealed, arguing inter alia that he was improperly denied counsel during this evidentiary hearing.  See Maddox v. State, A04-574, 2005 WL 287533, *1 (Minn. App. Feb. 8, 2005)  This court reversed the postconviction court’s denial of relief and remanded the issues for an evidentiary hearing at which Maddox was to be represented by counsel or to put on the record a valid waiver of counsel.  Id. at *2.  This court also directed the postconviction court to determine Maddox’s criminal-history score.  Id.

Subsequently, the postconviction court convened a hearing to determine whether Maddox’s criminal-history score had been correctly calculated and whether defendant was properly sentenced under Minn. Stat. § 609.1095; specifically, whether aggravating factors existed to support the upward durational departure.  The postconviction court issued its order and memorandum which established Maddox’s criminal history score to be four and found that, regardless of the criminal history score, Maddox was properly sentenced because the career offender statute was justified based on the terms of his guilty plea.  The court again denied the petition for postconviction relief.  This appeal followed.

D E C I S I O N

 

1.         Is there evidence within the record to support a claim of ineffective assistance of counsel, or prosecutorial or judicial misconduct?

Maddox raised issues of ineffective assistance of counsel and prosecutorial and judicial misconduct in his pro se supplemental brief.  Regarding the ineffective assistance of counsel claims, Minn. R. Prof. Conduct 1.6(b)(8) specifically notes that a lawyer may reveal information relating to the representation of a client if that attorney reasonably believes the disclosure of the information is necessary “to respond in any proceeding to allegations by the client concerning the lawyer’s representation of the client.”  When Maddox alleged that his counsel ineffectively represented him before the district court, his former attorney was allowed to, if not required to, disclose information regarding conversations he and Maddox had and his rationale for legal advice given.  Maddox’s former attorney testified about conversations he had with Maddox regarding the details of the guilty plea and what it would mean for his sentencing.  Maddox’s claims that this violated his ability to receive a fair determination from the postconviction court because the attorney was forced to defend the legal advice given is without merit.  Without the claims of ineffective assistance by Maddox, this testimony would not have been given to the postconviction court.  

Maddox also argues that the prosecutor and district court judge were guilty of misconduct for failing to inform him of the justification for the 60-month executed sentence until after the plea agreement was accepted.  After review of the record, we reject these claims. 

The prosecutor expressed to the district court, in the presence of Maddox, that the justification for the 60-month sentence was to avoid the possibility of a longer sentence after trial.  The district court inquired whether Maddox had any reservations regarding this justification.  In response, Maddox questioned the use of the career offender statute and whether the 60-month sentence he agreed to was the ultimate sentence he would serve.  On the record, it was noted that Maddox’s earlier convictions were the justification for the upward departure on the third-degree assault charge and that the 60-month sentence would be the sentence he would serve.  Maddox expressed satisfaction with this answer.  No further increase in Maddox’s sentence has been sought or received in this matter.

2.         Were Maddox’s sexual assault convictions properly determined to be separate behavioral incidents to qualify as separate criminal history index points?

When the postconviction court determined Maddox’s criminal history score, it held that there was sufficient evidence of intervening activity between the first two criminal sexual contacts (one criminal history point) and the third criminal sexual contact (one criminal history point) to conclude that there was no unity of time and that the last sexual assault was a separate crime from the two previous assaults the evening before.  Specifically, the postconviction court held that the length of time between the first two sexual assaults, meaning Maddox’s departure from the room with his victim so she could make a phone call, the return of Maddox’s roommate to the room, and Maddox’s overnight sleep between the sexual assaults was sufficient intervening activity to justify a finding that the sexual assault the next morning was a separate behavioral incident.  Maddox argues that the district court and postconviction court erred when it considered his sexual assault convictions in Wisconsin as two separate incidents.  Appellant argues that all the Wisconsin offenses should be treated as a single behavioral incident, and, thus, only one criminal history point.

This issue is controlled by Minn. Stat. § 609.035, subd. 1 (2000), which states that: “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.”  This court has explained that

This statute, known for its “single behavioral incident” rule, contains two prohibitions; one against double punishment and one against serialized prosecutions.  The statute is designed to preclude multiple prosecutions for offenses resulting from a single behavioral incident so that double punishment is prohibited, but punishment for a “multiplicity of violations will be commensurate with the criminality of defendant’s misconduct.”

 

State v. Secrest, 437 N.W.2d 683, 684 (Minn. App. 1989) (citations omitted), review denied (Minn. May 24, 1989).  Whether offenses are part of a single behavioral incident is a fact determination for the sentencing court that will not be reversed by an appellate court unless clearly erroneous.  Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).  “Whether multiple offenses arose out of a single behavior incident depends on the facts and circumstances of the particular case.”  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). To determine whether two intentional offenses arose out of the same behavioral incident, we “consider the factors of time and place and whether a defendant is motivated by a single criminal objective. . . .” Id. 

This court has stated that in criminal sexual conduct cases, two criteria have been applied, (1) “the conduct involved must be motivated by a desire to obtain a single criminal objective,” and (2) “the offenses must occur at substantially the same time and place, arise in a continuous and uninterrupted course of conduct and manifest an indivisible state of mind.  Secrest, 437 N.W.2d at 685.  In Secrest, the criminal sexual conduct occurred over a total of three years, approximately once per month.  Id. at 684.  This court cited favorably two cases wherein individuals committed acts of criminal sexual conduct in the same general location but with differing amounts of time separating the events.  Id. at 685 (citing State v. McLemore, 351 N.W.2d 927 (Minn. 1984) (defendant convicted and sentenced on three counts of second degree criminal sexual conduct for three contacts over a weekend period), and State v. Stevenson, 286 N.W.2d 719 (Minn. 1979) (defendant convicted and sentenced on two counts of third degree criminal sexual contact for contacts in the same general place approximately five hours apart).  This court also distinguished two other cases where only a short amount of time elapsed between the criminal sexual contacts.  Id. (citing Bixby v. State, 344 N.W.2d 390 (Minn. 1984) (defendant engaged in two sexual contacts within a span of approximately three hours; court held the two acts were part of a single behavioral incident), and State v. Herberg, 324 N.W.2d 346 (Minn. 1982) (although the defendant drove victim a short distance, the relocation was to avoid discovery, so acts occurring within the span of one afternoon were part of a single course of conduct)).

            The facts of Maddox’s criminal sexual conduct in Wisconsin fall somewhere between the facts present in the cases discussed within Secrest.  Maddox and his victim arrived at his hotel room sometime between 8:30 and 9:30 on the night in question.  Sometime after this arrival, but before Maddox and his victim left the room to use a pay phone, sexual encounters occurred, each separated by Maddox going into the bathroom for an indeterminate period of time.  At approximately 11:05 Maddox’s victim used a pay phone outside of the motel room to call the group house she was staying at while Maddox stood next to her.  At some point after Maddox awoke the next morning and before they left the room between 10:00 and 10:30 a.m., Maddox again sexually assaulted his victim.  The transcript is silent regarding the actual length of time between the sexual assaults, but the postconviction court assumed it was approximately eight hours.  It appears that approximately nine to eleven hours elapsed between Maddox entering the room with his victim and their departure the next morning.  The previous evening the first two sexual assaults occurred.  Maddox and his victim left the room temporarily to make a phone call, an unrelated third party entered the room and stayed the night, and Maddox and the victim slept through the night.  The third sexual assault occurred the next morning.  These factors support the finding that the evening sexual assaults (which were only counted as one criminal history point against appellant) were not continuous and uninterrupted through the sexual assault the next morning.  Thus, it was proper to give appellant a separate criminal history point for the sexual assault the following morning. 

            Maddox appears to assert that because the Wisconsin jury did not make findings regarding whether the assaults were continuous or uninterrupted in nature, such a judicial finding is purely speculative.  When reading the testimony of the Wisconsin sexual assault trial, the victim’s testimony clearly delineates two major instances of sexual assault, two times in the evening and one the next morning.  There were multiple instances of penetration within each distinct grouping.  The district court’s reasoning that the assaults could be broken up into distinct groupings, one in the morning that was separate and independent of the other two which happened the evening before, is reasonable and is supported by the record.

2.         Was Maddox was properly sentenced under Minn. Stat. § 609.1095?

            Maddox argues that the postconviction court abused its discretion by “upholding the nearly triple durational departure”[1] and asserts that under the sentencing guidelines, a 21-month stayed sentence was appropriate.  The postconviction court found that “a legally sufficient basis was established by the record to support the agreed upon aggravated upward durational departure . . . as is more fully set forth in [the] departure report” and upheld the 60-month executed sentence  The departure report provides that the court used section 609.1095, subdivision 2, to support the departure.  This report provides that Maddox “violated a position of trust with the victim, brutally beat her during the course of a robbery, and then left without rendering her medical assistance.”  The postconviction court affirmed the district court’s findings, but only cited the violation of a position of trust and leaving without rendering medical treatment as the rationale for upholding the upward departure.  This court reviews a postconviction court’s proceedings to determine if there is sufficient evidence to support the findings and whether the district court abused its discretion with its decision.  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).

            Minn. Stat. § 609.1095, subd. 2 (2000) (emphasis added), provides:

Whenever a person is convicted of a violent crime that is a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive imprisonment sentence up to the statutory maximum sentence if the offender was at least 18 years old at the time the felony was committed, and:

(1) the court determines on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes; and

(2) the court finds that the offender is a danger to public safety and specifies on the record the basis for the finding, which may include:

(i) the offender’s past criminal behavior, such as the offender’s high frequency rate of criminal activity or juvenile adjudications, or long involvement in criminal activity including juvenile adjudications; or

(ii) the fact that the present offense of conviction involved an aggravating factor that would justify a durational departure under the sentencing guidelines.

 

Before the district court may depart upwards from the sentencing guidelines, the defendant’s conduct must be more serious than that typically involved in that crime.  State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).  Generally, the limit on an upward departure in sentencing is double the presumptive sentence length.  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981); State v. Sanchez-Sanchez, 654 N.W.2d 690, 694 (Minn. App. 2002).  Severe aggravating factors can support a greater-than-double upward departure in sentencing.  State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988). 

The district court stated that three aggravating factors and the career-offender statute justified the upward departure in sentencing.[2]  Because of Maddox’s past criminal conduct, the postconviction court determined that he was eligible to be considered for sentencing under section 609.1095, subd. 2.  Under section 609.1095, subd. 2(2)(i), the postconviction court properly considered Maddox’s past criminal history, which shows a propensity towards violence.  Similarly, the postconviction court also considered aggravating factors involved with the assault charge to which Maddox pleaded guilty under section 609.1095, subd. 2(2)(i). 

            An abuse of a trust relationship between the victim and the perpetrator is a proper aggravating factor.  State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988) (finding no abuse of a trust relationship between a john and a prostitute), review denied (Minn. May 18, 1988); see State v. VanZee, 547 N.W.2d 387, 392 (Minn. App. 1996) (finding an abuse of a trust relationship between an employer and an employee), review denied (Minn. July 10, 1996).  Here, Maddox abused a trust relationship with his victim, his girlfriend who lived with him.

Maddox was originally charged with a number of violent felonies.  In part, the prosecutor agreed to drop those charges if Maddox pleaded guilty to the third-degree assault charge.  Maddox agreed to accept a sentence of 60-months, which would be justified under Minn. Stat. § 609.1095, subd. 2.  Ultimately, Maddox knowingly and voluntarily accepted this plea agreement with the state to avoid a trial on even more serious charges that the state could have brought against him.

Maddox’s criminal history score was correctly calculated and his sentence was presumptively executed.

Affirmed.