This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1411

 

State of Minnesota,

Respondent,

 

vs.

 

Gregory A. Welch,

Appellant.

 

Filed May 22, 2007

Affirmed

Willis, Judge

 

Ramsey County District Court

File No. K4-00-2883

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN  55102 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges his sentence for second-degree attempted criminal sexual conduct, arguing that the district court did not have the inherent authority to conduct a sentencing trial and that the imposition of his sentence violates his right not to be placed in double jeopardy and subjects him to an ex post facto law.  Appellant argues also that the evidence was insufficient for the district court to find aggravating factors beyond a reasonable doubt and that the district court abused its discretion in imposing a sentence of 150 months.  We affirm.

FACTS

 

            On February 1, 2001, the district court convicted appellant Gregory Welch of attempted second-degree criminal sexual conduct, in violation of Minn. Stat. §§ 609.17, subd. 1, 609.343, subd. 1(e)(i) (2000); and kidnapping, in violation of Minn. Stat. § 609.25, subd. 1(2) (2000), for the August 31, 2000 assault of a woman who was pushing her infant child in a stroller in Battle Creek Regional Park in Maplewood.  Welch was sentenced to 45 months for the kidnapping conviction and a consecutive 150 months for the attempted-criminal-sexual-conduct conviction; the 150-month sentence was an upward durational departure.

            Welch appealed to this court, and although we affirmed Welch’s convictions, we remanded the case for further consideration of his sentences in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  State v. Welch, No. C9-01-1095, 2002 WL 1013152 (Minn. App. May 21, 2002).  Welch petitioned the Minnesota Supreme Court for further review, and the supreme court reversed the kidnapping conviction.  State v. Welch, 675 N.W.2d 615, 620-21 (Minn. 2004).

Because his sentence was not final when the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), on remand, Welch moved the district court to have his sentence reconsidered in light of Blakely, arguing that he was entitled to the imposition of the presumptive sentence of 44 months for the attempted-criminal-sexual-conduct conviction.  The state agreed that Welch was entitled to the application of Blakely but argued that the district court had the inherent authority to conduct a sentencing trial on aggravating factors.

 In January 2006, the district court held a sentencing trial; Welch waived on the record his right to a jury trial.  There was testimony at the trial from a police officer who had arrested Welch for a series of assaults against women in Battle Creek Park and from the victim of the current offense.  The state also called Timothy Carey, a Ramsey County probation officer who performs sex-offender assessments.  Carey testified that as a result of Welch’s assessment, he concluded that Welch “presented a profound risk to re-offend sexually against unknown females in the community” and that Welch demonstrated “an ingrained pattern of sexual responsivity to violent sexual scenarios.”  Because “44 months would [not] be enough time for anyone to enter and successfully complete” treatment, Carey recommended that Welch be sentenced as a patterned sex offender under Minn. Stat. § 609.108, subd. 1(a) (2000).

Following the hearing and written submissions, the district court found the presence of aggravating factors, determining that “the victim was particularly vulnerable at the time of the offense because she was caring for [a] six-month old child and the offense itself was committed in the presence of the child.”  The district court also determined that Welch was a patterned sex offender, finding that Welch’s “criminal sexual behavior is an engrained behavior,” that his risk to re-offend “is great without long-term sexual offender treatment,” and that he is a danger to public safety.  The district court departed upwardly and sentenced Welch to 150 months’ imprisonment.  This appeal follows.

D E C I S I O N

I.

            Welch argues first that the district court lacked the statutory authority to conduct a sentencing trial on remand, claiming that he is entitled to the imposition of the presumptive sentence.  But the supreme court has determined that district courts have the inherent authority to conduct sentencing trials on remands for the application of Blakely.  See State v. Chauvin, 723 N.W.2d 20, 24 (2006).  And more recently, this court applied Chauvin to Minn. Stat. § 609.108, subd. 1(a) (2000),[1] the patterned-sex-offender statute under which Welch was sentenced, and held that district courts have the inherent authority to conduct sentencing trials to determine whether the statutory factors are met.  See State v. Boehl, 726 N.W.2d 831, 840-42 (Minn. App. 2007).  We conclude therefore that the district court had the inherent authority to conduct a sentencing trial here.

II.

Welch next argues that his sentence violates the double-jeopardy and ex post facto clauses of the federal and Minnesota constitutions.  Welch’s argument has been considered and rejected by the supreme court, which has determined that remands for sentencing trials to apply Blakely do not violate the double-jeopardy or ex post facto clauses, provided that the sentence imposed on remand does not exceed the original sentence.  Hankerson v. State, 723 N.W.2d 232, 238, 240-41, 243-44 (Minn. 2006).  Here, Welch was originally sentenced to 150 months’ imprisonment; on remand, he was re-sentenced to 150 months.  We conclude that there is no double-jeopardy or ex post facto violation here.

III.

Welch also argues that the evidence was insufficient to prove beyond a reasonable doubt the existence of aggravating factors.  There is no published authority establishing the standard of review of sentencing trials.  But the Supreme Court’s decision in Blakely requires that every fact that increases the sentence above the presumptive sentence be proved beyond a reasonable doubt.  State v. Shattuck, 704 N.W.2d 131, 135, 141 (Minn. 2005).  And our supreme court has analogized a Blakely sentencing trial to a trial on the elements of the substantive offense, which suggests that the standard of review to determine whether the evidence was sufficient to find the existence of an aggravating factor should be the same as the review of the sufficiency of the evidence to support a guilty verdict.  See State v. Thompson, 720 N.W.2d 820, 827 (Minn. 2006).  We therefore apply a sufficiency-of-the-evidence standard.

Thus, when considering a claim that the evidence was insufficient to support an upward departure, we painstakingly review the record to determine whether the evidence, when viewed in the light most favorable to the findings, permitted the fact-finder to find beyond a reasonable doubt the facts necessary to depart.  See State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).  But this court cannot retry the facts.  State v. Sheldon, 391 N.W.2d 537, 539 (Minn. App. 1986).  On review, we must assume that the fact-finder credited the testimony of the state’s witnesses but discredited any conflicting testimony.  Id.  The standard is the same whether the fact-finder is a jury or a district court.  State v. Lehikoinen, 463 N.W.2d 770, 772 (Minn. App. 1990).

A.         Presence of a Child

Welch argues that the state has not established that the presence of the victim’s child during the assault is a “substantial or compelling circumstance to justify an upward departure based on the child’s presence.”  Committing a “heinous and vulgar crime” in the presence of a child has been found to be “particularly outrageous.”  State v. Gaines, 408 N.W.2d 914, 918 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).  The supreme court has held that an upward departure under such circumstances is justified because the child is, in a sense, another victim.  State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982).  And this court has affirmed an upward departure even when the offense was not committed in the physical presence of the child but the fact that the child was nearby made it more difficult for the victim to escape, reasoning that a victim who is caring for a child is the equivalent of a victim whose physical capacity is reduced.  State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992).

Welch contends that there was “no evidence that the child’s presence made the victim more vulnerable or reduced her capacity to defend herself or flee” and that there was insufficient evidence that “the child was affected by the crime,” arguing that the only evidence that the child was affected by the assault is the testimony of the victim that “as she fled, the baby was crying.”  The district court determined that “the victim was particularly vulnerable at the time of the offense because she was caring for [a] six-month old child and the offense itself was committed in the presence of the child.”

We conclude that the record supports the district court’s finding.  During the sentencing hearing, the victim testified that she was with her child at the time of the assault and that after she successfully fought off Welch, she ran away while pushing her crying child in a stroller.  The record was sufficient to allow the district court to determine beyond a reasonable doubt that the victim was particularly vulnerable at the time of the assault because she was caring for her child.

B.         Patterned-Sex-Offender Statute

Welch argues that the probation officer who performed the sex-offender assessment is not a “qualified medical practitioner” under the statute.  The patterned-sex-offender statute requires that the district court base its finding on a “professional assessment by an examiner experienced in evaluating sex offenders that concludes that the offender is a patterned sex offender.”  Minn. Stat. § 609.108, subd. 1(a)(3).  This court addressed Welch’s argument in his first appeal, concluding that the probation officer’s education and experience satisfied the statute.  See Welch, 2002 WL 1013152, at *4.  We are bound by the law of the case.  See State v. Andren, 350 N.W.2d 404, 405 (Minn. App. 1984) (noting that “a defendant is not entitled to raise issues already decided on appeal”).

IV.

Welch argues finally that the district court abused its discretion when it sentenced him to 150 months’ imprisonment, which is more than three times the presumptive sentence of 44 months.  We review sentencing departures for an abuse of discretion.  State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).  Generally, when departing upwardly, the district court should impose a sentence that is no more than double the presumptive guidelines sentence.  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).  But when circumstances of an offense are unusually severe, the statutory maximum sentence for the offense is the limit on the sentence that the district court may impose.  State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988).

Welch argues that the circumstances of his offense are not unusually severe, citing a number of cases in which the aggravating factors were arguably more severe than those present here.  But the patterned-sex-offender statute requires that the district court sentence a defendant to no less than double the presumptive guidelines sentence.  Minn. Stat. § 609.108, subd. 1(a).  And this court has held that when a defendant is sentenced under the patterned-sex-offender statute, severe aggravating factors are not required to impose a sentence that is more than double the presumptive sentence.  See State v. McCoy, 631 N.W.2d 446, 453-54 (Minn. App. 2001).  Further, Welch has an extensive history of assaulting women, and he attacked the victim here in a public park while the victim was pushing her infant child in a stroller.  Under these circumstances, Welch’s sentence was not an abuse of discretion.

Affirmed.