This opinion will be unpublished and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

A05-2406

 

Charles Henry Krejce, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed December 5, 2006

Affirmed

Ross, Judge

 

Ramsey County District Court

File No. K4-01-3011

 

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

Considered and decided by Ross, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

This case arises out of the sexual assault of a seven-year-old girl by a stranger posing as an officially sponsored reading tutor.  Charles Henry Krejce appeals from an order denying his postconviction petition that challenged his 2002 sentence for that offense.  The sentence resulted from a double upward departure to 288 months’ incarceration after a jury convicted Krejce of first-degree criminal sexual conduct.  Krejce argues that the double departure was not supported by aggravating factors.  Because the record supports the finding of aggravating factors to justify the double upward departure from the presumptive sentence, we affirm.

FACTS

A Ramsey County jury convicted Charles Krejce of first-degree criminal sexual conduct for sexually abusing M.Y., a seven-year-old girl.  According to witnesses, in August 2001, M.Y.’s grandmother was in her St. Paul, public-housing apartment babysitting M.Y. when Krejce knocked on her door.  Krejce carried children’s books and told her that the local housing office sent him to teach children to read.  M.Y.’s grandmother, who is Hmong and speaks little English, believed Krejce and allowed him into the home.  She showed him to the basement, where M.Y. was playing with her six-year-old brother and seven-year-old cousin.  M.Y.’s grandmother left Krejce with the children.  Krejce gave the two boys books and took M.Y. to a different part of the basement.  He sat her on a chair.  Krejce told M.Y. to close her eyes and to open her mouth.  M.Y. obeyed.  Krejce then put his penis into M.Y.’s mouth, grabbed her shoulders, and moved her back and forth.  Krejce told M.Y. that her grandmother told him to commit the act.

About thirty minutes after Krejce went into the basement, M.Y.’s grandmother checked on the children.  She saw Krejce standing over M.Y. and forcing her to perform oral sex.  She dialed 911, screaming “help me” in Hmong.  She got a knife from the kitchen and, still screaming for help, chased Krejce out of the apartment.  She injured herself in the process.  Neighbors witnessed the chase and saw Krejce run to his car and speed away.  Police arrested Krejce two days later.

After the jury found Krejce guilty, the state moved for a double upward departure from the presumptive sentence of 144 months’ incarceration.  The presentence investigation report recommended an upward departure to the statutory maximum of 360 months.  Before sentencing, Krejce participated in a psychological and psychosexual evaluation.  During the evaluation, Krejce admitted that by using children’s books to gain access into homes with children, he engaged in oral sex at least six times with girls who were seven to ten years old.  The evaluation found that Krejce is a “highly dangerous predatory, pedophile sex offender,” with a “clear potential for escalating misconduct.”

The district court sentenced Krejce in May 2002.  At the sentencing hearing, the prosecutor read victim impact statements to the court from M.Y.’s mother, grandmother, and aunt, describing the emotional and psychological trauma that resulted from the sexual assault.  The statements explained that, in accordance with Hmong custom, M.Y.’s family had performed three hu plig healing ceremonies, intended to restore the soul of a person who has been physically and emotionally traumatized, and who otherwise, according to their beliefs, would become ill and eventually die.  The district court sentenced Krejce to 288 months in prison, a double upward departure, based on its finding of aggravating factors.  These factors were Krejce’s invasion of M.Y.’s zone of privacy, M.Y.’s age and vulnerability, the presence of other children during the commission of the crime, Krejce’s planning and use of subterfuge, Krejce’s exploitation of the color of a position of authority, and M.Y.’s emotional and psychological trauma.  Krejce did not directly appeal his conviction or sentence.

Krejce filed a petition for postconviction relief three years later, alleging that the aggravating factors cited by the district court did not support a double upward departure and that the sentence imposed is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).[1]  The postconviction court denied Krejce’s petition, finding that the district court “clearly articulated numerous recognized aggravating factors justifying the upward departure.”  Krejce’s appeal follows.

D E C I S I O N

Krejce’s challenge reaches this court in the postconviction process, rather than on direct appeal from the judgment.  A petition for postconvictionrelief is a collateral attack on a judgment that carries a presumption of regularity and, therefore, will not be lightly set aside.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  We review a postconviction court’s findings only to determine whether there is sufficient evidentiary support in the record to sustain those findings.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Absent an abuse of discretion, we will not disturb the decision of the postconviction court, whose factual findings are afforded great deference.  Id.

We also review a district court’s decision to depart from a presumptive sentence for an abuse of discretion.  State v. Shattuck, 704 N.W.2d 131, 140 (Minn. 2005).  A district court has discretion to depart only if aggravating or mitigating circumstances exist.  Id.  The sentencing guidelines contain a non-exhaustive list of aggravating factors that may justify a departure.  Minn. Sent. Guidelines II.D.2.b.  The record must include substantial and compelling circumstances to justify a departure.  Id.  When these circumstances are present, a district court has broad discretion to “impose a sentence that is deemed to be more appropriate, reasonable, or equitable than the presumptive sentence.”  State v. Bingham, 406 N.W.2d 567, 570 (Minn. App. 1987) (quotation omitted).  Even a lone aggravating factor may justify an upward durational departure.  See, e.g., State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985) (upholding double duration departure when only one aggravating factor was present); State v. Harwell, 515 N.W.2d 105, 109 (Minn. App. 1994) (holding that existence of particular cruelty alone can justify double departure), review denied (Minn. June 15, 1994); State v. Edwards, 380 N.W.2d 503, 510 (Minn. App. 1986) (holding that cruelty “alone may be sufficient to justify double departure”); State v. Jeno, 352 N.W.2d 82, 85 (Minn. App. 1984) (upholding district court’s double upward departure based solely on single aggravating factor).  A district court must consider each case on its merits and assess all of the facts qualitatively to determine if the defendant’s conduct was sufficiently different in degree from the typical charged offense to justify a durational departure.  State v. Cermak, 344 N.W.2d 833, 839 (Minn. 1984).  Generally, when aggravating factors justify an upward departure, “the upper limit will be double the presumptive sentence length.”  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).

Krejce contends that the district court abused its discretion by imposing a double upward departure and that his sentence must be reduced to the presumptive imprisonment term of 144 months.  He argues that the aggravating factors were either invalid or unsupported by the record.  We disagree.  Our review of the record reveals ample support for at least four of the aggravating factors relied on by the district court, and at least one other factor not relied on by the court.

Zone of Privacy

Krejce concedes that the district court properly relied on his violation of M.Y.’s zone of privacy as an aggravating factor.  See State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991) (holding that offender invaded victim’s zone of privacy by sexually assaulting her in her home and this invasion was an aggravating factor for purposes of sentencing), review denied (Minn. Jan. 16, 1992).  He argues, however, that relying on this single factor makes a double upward departure disproportionate to the crime because the factor would be absent had the crime occurred elsewhere.  That the crime committed in some other place would not have triggered this aggravating factor is irrelevant.  Krejce’s argument essentially asserts that but for the aggravating factor there would be no aggravating factor.  That Krejce invaded M.Y.’s zone of privacy is sufficient to support the departure, and the record also supports the district court’s finding of other aggravating factors.

Presence of Children

The district court’s departure also relied on the fact that Krejce assaulted M.Y. in the presence of other children.  The presence of children during a sexual assault may be an aggravating factor even if the assault was not committed in front of them.  Hart, 477 N.W.2d at 740; State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989), review denied (Minn. Oct. 13, 1989).  The commission of a violent crime in front of children is “particularly outrageous.”  State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982).  The evidence showed that M.Y.’s brother and cousin were present in the basement when the assault occurred.  Krejce’s only challenge to this factor on appeal is to assert that the children were “apparently oblivious to what was happening.”  Although their awareness would support a separate concern, the district court did not abuse its discretion by considering their presence as an aggravating factor.

Planning, Manipulation, and Course of Conduct

Extensive planning and manipulation also constitute aggravating factors that justify an upward departure.  See State v. Kindem, 338 N.W.2d 9, 17-18 (Minn. 1983) (citing planning as valid aggravating factor); State v. Sebasky, 547 N.W.2d 93, 101 (Minn. App. 1996) (citing planning and manipulation as aggravating factor), review denied (Minn. June 19, 1996).  Without using these terms, the district court referred to Krejce’s use of subterfuge, guile, and trickery to gain access to M.Y.’s home to commit the assault.  The evidence showed that Krejce, in predatory fashion and using children’s books as bait, knocked on other doors in the public housing complex under the guise of assisting children with reading through professed association with the public housing office.  One neighbor testified that she recognized Krejce as having knocked on her door twice before, purportedly to sell books.  The first time, she answered the door and he made her uncomfortable by staring at her body.  The second time, she did not answer.  Another neighbor testified that, on the day of M.Y.’s assault, Krejce had knocked on her door seeking school-age children, claiming that the housing office had sent out fliers about his books.  This evidence demonstrates plainly that Krejce engaged in predatory planning and manipulation to commit his crime.  Additionally, once Krejce had access to M.Y., he manipulated her to a different part of the basement away from the other children and outside of her grandmother’s presence and tricked her into opening her mouth.  See State v. Bates, 507 N.W.2d 847, 854 (Minn. App. 1993) (holding that planning and manipulation particularly aimed at young victim was valid basis for departure), review denied (Minn. Dec. 27, 1993).  A sentencing court may consider the course of conduct underlying the crime for which a defendant is being sentenced.  Taylor v. State, 670 N.W.2d 584, 588 (Minn. 2003).  The district court did not abuse its discretion in considering Krejce’s scheming use of trickery as an aggravating factor.

Emotional and Psychological Impact

The district court cited the trauma to M.Y. and her grandmother as aggravating factors.  The emotional and psychological effect of an offense on the victim may justify an upward durational departure in sentencing.  State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992).  The emotional effect of the crime on a victim’s family may also be considered an aggravating factor.  Bingham, 406 N.W.2d at 570.

M.Y.’s grandmother testified that seeing her granddaughter sexually assaulted would stay with her forever; she asserted that it was worse than murder.  M.Y.’s mother testified that M.Y. is very frightened and often cries about the assault.  The prosecutor read victim impact statements further describing the emotional and psychological trauma the family and M.Y. had experienced.  The statements explained that M.Y. has often been ill, that she has become withdrawn, and that her academic performance significantly diminished.  The statements noted that Hmong cultural and community beliefs about rape will likely prevent M.Y. from having a normal life within the culture.  M.Y.’s family had performed three hu plig healing ceremonies.  These facts supported the district court’s determination.  See State v. Lee, 494 N.W.2d 475, 482 (Minn. 1992) (considering “clearly foreseeable devastating impact” of rape on victims’ lives to justify double departure (emphasis omitted)); Allen, 482 N.W.2d at 233 (holding that district court properly considered psychological impact after victim testified to emotional injury and mother testified that crime had negative effect on family).  The district court did not abuse its discretion when it identified the emotional and psychological trauma of M.Y. and M.Y.’s grandmother as aggravating factors.

Other Factors

The district court relied on M.Y.’s vulnerability due to her young age.  The state concedes that this reliance is improper because age is an element of the offense.  See Taylor, 670 N.W.2d at 589 (holding that age is inappropriate basis for departure when age is element in degree of offense).[2]  The district court also cited as an aggravating factor Krejce’s conduct under apparent “color of authority” by representing an affiliation with the public housing authority.  But Krejce had no actual authority to misuse when he gained access to the apartment.  His misrepresentation of authority, however, supports the district court’s consideration of his planning and scheming.

Finally, though not relied on by the district court, the record would support a finding of particular cruelty as an aggravating factor.  See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (holding that upward departure decision may be upheld where record supports aggravating factors not relied on by the district court); Harwell, 515 N.W.2d at 109 (holding that particular cruelty is an aggravating factor that alone can justify double departure).  Krejce’s actions caused M.Y. to gag and throw up while he restrained her by her shoulders and moved her back and forth for his own prurient gratification.  Krejce also told his seven-year-old victim that her grandmother told him to engage her in the sexual misconduct.  Krejce found a way to make the sexual assault of a very young child even more cruel—discouraging her resistance by misleading her to believe that her own grandmother sent him into the basement to force her to perform oral sex on an adult stranger.  His actions were particularly cruel and would unquestionably justify an upward departure on its own.

There is an abundance of support in the record for the sentencing court to find aggravating factors to justify the double upward departure of Krejce’s sentence.  The postconviction court did not abuse its discretion by denying Krejce’s postconviction petition for relief.

Affirmed.