Dakota County District Court

File No. KX962068

John M. Stuart, State Public Defender, Patricia P. Rettler, Special Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.

Appellant challenges the district court's decision to sentence him to the maximum 240 months in prison for first-degree assault. Because we see no abuse of the trial court's discretion, we affirm.

After one of his children attempted to call 911, appellant threw the phone on the floor and told the children that if they called the police, he would shoot them. While appellant reloaded his gun, the two older children escaped out the window. The youngest child stayed behind because she was too small to reach the window. After reloading his weapon, appellant shot the victim twice more in the left leg. Appellant then called 911.

After initially refusing to allow anyone to treat the victim, appellant went upstairs and allowed the paramedics inside. When paramedics left, appellant surrendered.

After appellant pleaded guilty to felony first-degree assault, the court sentenced him to 240 months in prison. Appellant now challenges his sentence.

Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the Sentencing Guideline's maximum presumptive sentence duration.

State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988). Severe aggravating circumstances, however, may justify a sentence greater than double the presumptive sentence. Id.

After a hearing, the court sentenced appellant to 240 months in prison based on five aggravating factors: (1) appellant's violation of the victim's zone of privacy; (2) his premeditation; (3) the pattern of escalating violence; (4) the presence of children; and (5) appellant's failure to allow the paramedics to assist the victim. The court acknowledged appellant's depressed psychological state, but held that it was not a mitigating factor because appellant had control of his actions during the attack.

Mitigating Factors

Appellant argues that the court erred by failing to consider his depressive disorder as a mitigating factor.[3]

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.

Appellant challenges the district court's decision to sentence him to the maximum 240 months in prison for first-degree assault. Because we see no abuse of the trial court's discretion, we affirm.

After one of his children attempted to call 911, appellant threw the phone on the floor and told the children that if they called the police, he would shoot them. While appellant reloaded his gun, the two older children escaped out the window. The youngest child stayed behind because she was too small to reach the window. After reloading his weapon, appellant shot the victim twice more in the left leg. Appellant then called 911.

After initially refusing to allow anyone to treat the victim, appellant went upstairs and allowed the paramedics inside. When paramedics left, appellant surrendered.

After appellant pleaded guilty to felony first-degree assault, the court sentenced him to 240 months in prison. Appellant now challenges his sentence.

Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the Sentencing Guideline's maximum presumptive sentence duration.

State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988). Severe aggravating circumstances, however, may justify a sentence greater than double the presumptive sentence. Id.

After a hearing, the court sentenced appellant to 240 months in prison based on five aggravating factors: (1) appellant's violation of the victim's zone of privacy; (2) his premeditation; (3) the pattern of escalating violence; (4) the presence of children; and (5) appellant's failure to allow the paramedics to assist the victim. The court acknowledged appellant's depressed psychological state, but held that it was not a mitigating factor because appellant had control of his actions during the attack.

Mitigating Factors

Appellant argues that the court erred by failing to consider his depressive disorder as a mitigating factor.[1] In order to be a mitigating factor, a depressive disorder must be extreme. State v. Lee, 491 N.W.2d 895, 902 (Minn. 1992). A disorder is not extreme unless it deprives the person of control over his actions. Id.

In the present case, Dr. Hanson testified that appellant's mental capacity did not affect his judgment at the time of the incident because he made a rational decision to attack the victim and to incapacitate her. Also, appellant's mental disorder was not sufficient to warrant the M'Naugten defense of mental insanity. Appellant's mental disorder was not a mitigating factor.

Aggravating Factors

Appellant also argues that there are not sufficient aggravating factors to justify imposition of the maximum sentence. The court, however, relied on five legitimate aggravating factors to justify giving appellant the maximum sentence.

"Invasion of a victim's zone of privacy, the home and curtilage, is an aggravating factor to consider for an upward durational departure." State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992). Careful planning in the execution of a crime at a time when the victim is most vulnerable also supports an upward departure. State v. Bock, 490 N.W.2d 116, 121 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992).

The fact that the crime was committed in the presence of children is also an aggravating factor. State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989) (double durational departure supported by presence of victim's child in apartment at time of sexual assault, even if the child was not present during the assault), review denied (Minn. Oct. 13, 1989). Failure to obtain effective medical assistance may be an aggravating factor for sentencing purposes. State v. Behl, 547 N.W.2d 382, 386 (Minn. App. 1996), rev'd on other grounds, 564 N.W.2d 560 (Minn. 1997). Lastly, violation of a restraining order may be considered in departing from the sentencing guidelines. State v. Coley, 468 N.W.2d 552, 556 (Minn. App. 1991).

The presence of five aggravating factors and the absence of mitigating factors combine to warrant appellant's maximum sentence.

Affirmed.

[ ]³etired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant also argued that his inability to understand American culture and the concept of equality of the sexes should be considered a mitigating factor. Appellant cites no authority for this proposition and none could be found. If this were a viable factor, it should be noted that appellant moved to this country 18 years ago and held a steady job for 15 years. This is ample time to adjust to any significant cultural differences.