Alan L. Mitchell, St. Louis County Attorney, 100 N. Fifth Avenue West, No. 501, Duluth, MN 55802 (for Respondent)

John Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, Suite 600, 2829 University Avenue, S.E., Minneapolis, MN 55414 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.

This appeal is from a sentence imposed for four counts of first-degree criminal sexual conduct. Appellant Craig Hanson argues that the district court erred in imposing consecutive 30-year sentences on two counts, under the repeat sex offender statute. Minn. Stat. § 609.346, subd. 2b (1994). We affirm.

In the first incident, Hanson removed the screen to D.D.'s bedroom window, then knocked on the window. In response, D.D. removed the locking device on the window and allowed Hanson to enter. Hanson told D.D. to remove her nightclothes. Despite her protests, he had anal intercourse with her and forced her to engage in vaginal intercourse. He then left through the window.

In the second incident, Hanson again knocked on D.D.'s window, and she responded. Hanson told D.D. to get her coat and boots on because they were going for a ride. She complied, and he pulled her outside through the bedroom window. Hanson drove D.D. to an isolated area, where he first had her perform oral sex, during which he slapped her across the face. Hanson then penetrated D.D. vaginally, causing D.D. to bleed extensively. Finally, Hanson forced D.D. to have anal intercourse. At some point during the incident, he choked D.D. At the end of the incident, he returned D.D. to her apartment.

Hanson was charged, by two separate complaints, with four counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i)-(ii) (1994). After the jury found Hanson guilty on all four counts as charged, the state moved to have him sentenced as a patterned sex offender on one count for each incident, with the 40-year maximum sentence imposed on each count, and the two sentences to run consecutively. The state argued, alternatively, that the court could enhance Hanson's sentence under the repeat sex offender statute, imposing up to 30 years for each conviction, and also making these sentences consecutive. After continuing the sentencing hearing to research Hanson's claim that consecutive sentencing was not permissive, the court imposed two consecutive 30-year sentences.

Whether consecutive sentences should be imposed is generally within the discretion of the district court. State v. Branson, 529 N.W.2d 1, 4 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995). In this case, however, the initial question whether consecutive sentencing was permissive is a question of law because it requires interpretation of Minn. Sent. Guidelines II.F.2. Cf. Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn. 1996) (concluding that construction of civil procedure rule was a question of law).

The sentencing guidelines in effect when Hanson committed the offenses make consecutive sentencing permissive when there are "multiple current felony convictions for crimes against different persons." Minn. Sent. Guidelines II.F.2. (1994 & 1995). Both of Hanson's offenses were committed against the same person, although at different times. One of the comments to II.F.2. appears to allow permissive consecutive sentencing in this type of case. The comment explains that the "different persons" requirement was meant to exclude consecutive sentences in two types of situations, including domestic or child abuse offenses characterized by multiple incidents over time. Minn. Sent. Guidelines cmt. II.F.06. (1994 & 1995). But the supreme court has questioned whether the comment extends permissive consecutive sentencing to any offenses involving the same victim. State v. Notch, 446 N.W.2d 383, 386 (Minn. 1989); see also State v. Jones, 451 N.W.2d 55, 64 (Minn. App. 1990) (following Notch), review denied (Minn. Feb. 21, 1990).

If consecutive sentencing is not permissive or persumptive, then it is a departure requiring aggravating factors. Minn. Sent. Guidelines II.F.2. Hanson argues that because the effect of the consecutive sentences, combined with the durational departures under the repeat sex offender statute, is to more than double the presumptive sentence, the departure requires severe aggravating circumstances. See State v. Halvorson, 506 N.W.2d 331, 340 (Minn. App. 1993) (court may not depart durationally and with respect to consecutive service unless severe aggravating circumstances are present). We disagree.

The repeat sex offender statute, unlike the patterned sex offender statute at issue in Halvorson, does not create a sentencing departure; it creates a mandatory minimum sentence. The patterned sex offender statute gives a court authority to impose a sentence ranging from double the presumptive sentence up to the statutory maximum. Minn. Stat. § 609.1352, subd. 1(a) (1994). The statute explicitly states that the resulting sentence is a departure. Minn. Stat. § 609.1352, subd. 4 (1994). The repeat sex offender statute, however, mandates a sentence of not less than 30 years for an offender with Hanson's history. Minn. Stat. § 609.346, subd. 2b (1994). Although the statute requires as a precondition that an aggravating factor be present, it neither explicitly nor implicitly creates a sentencing departure.

Because the only departure involved in Hanson's sentence was the requirement that the sentences be served consecutively, severe aggravating circumstances are not required.

There are valid aggravating factors supporting an upward departure in the form of consecutive sentencing. The multiple penetrations, and multiple forms of penetration, support a departure. Multiple penetrations alone will justify a double, but not a greater-than-double, departure. State v. Allen, 482 N.W.2d 228, 232 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992). The psychological impact of the crime on D.D. also supports a departure. See, e.g., State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994) (victim's need for future psychological counseling as result of offense supported upward departure), review denied (Minn. Mar. 31, 1994). The gratuitous injury inflicted during the March 1995 offense, Hanson's slapping and choking D.D., is also a proper aggravating factor. See, e.g., State v. Blegen, 387 N.W.2d 459, 464 (Minn. App. 1986) (repeated blows inflicted during sexual assault constituted particular cruelty justifying departure), review denied (Minn. July 31, 1986). We conclude the trial court did not abuse its discretion in departing by imposing consecutive sentences.

Affirmed.