Perkins v. State

• Decision Date: 30 January 1997
• Docket Number: No. CX-95-1399,CX-95-1399
• Citation: 559 N.W.2d 678
• Parties: Donald Edward PERKINS, petitioner, 1 Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

Page 678

559 N.W.2d 678

Donald Edward PERKINS, petitioner, ¹ Appellant, v. STATE of Minnesota, Respondent.

No. CX-95-1399.

Supreme Court of Minnesota.

Jan. 30, 1997.

Syllabus by the Court

Withdrawal of a defendant's guilty plea is not required to correct a manifest injustice when the local rule requiring a specific plea petition form does not conflict with the Minnesota Rules of Criminal Procedure; the evidence demonstrates that the plea was accurate, voluntary, and intelligent; and the state upheld its part of the plea agreement.

A greater-than-triple durational departure is warranted in the rare case when the defendant forcibly raped the victim under severe aggravating circumstances, which circumstances included the defendant's particular cruelty and the defendant's knowledge that he was in the full-blown stages of AIDS.

Minnesota law does not require that a judge make findings as to a defendant's ability to pay a fine before imposing a fine as part of the defendant's sentence.

Heard, considered and decided by the court en banc.

John M. Stuart, Minnesota State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, Minneapolis, for Appellant.

Hubert H. Humphrey, III, Minnesota Attorney General, Catherine M. Keane, Assistant Attorney General, St. Paul, Douglas L. Ruth, Steele County Attorney, Owatonna, for Respondent.

OPINION

ANDERSON, Justice.

Appellant Donald Edward Perkins pleaded guilty to one count of first-degree criminal sexual conduct in the rape of A.L. At the time of the sexual assault, Perkins knew he was in the full-blown stages of AIDS. Perkins entered his plea pursuant to a form plea petition which was required by local rule. The petition provided that any agreement as to sentence would be a recommendation only, and that the defendant could not withdraw the guilty plea if the court chose not to follow the recommendation. The court accepted Perkins' guilty plea, but did not impose the recommended sentence. Instead, the court imposed the statutory maximum sentence of 30 years, a greater-than-triple durational departure from the presumptive sentence, and also imposed a $12,000 fine.

Seeking postconviction relief, Perkins now appeals from the lower courts' refusal to allow him to withdraw his guilty plea or to reduce his sentence to the presumptive term. Perkins also asks this court to vacate the fine. We conclude there is no manifest injustice warranting withdrawal of the guilty plea and no abuse of discretion in imposing a greater-than-triple durational departure or a $12,000 fine; therefore, we affirm.

On September 7, 1993, at approximately 3:00 p.m., Perkins entered a bar in Owatonna, Minnesota and approached A.L., who was talking to the bar owner. Perkins visited with A.L., told her that he had just moved to the area, and asked her to shoot a game of pool. Perkins and A.L. played pool and each had a couple of drinks. During their conversation, Perkins stated that he was a hair stylist and that he wanted A.L. to look at some hair styling books, offering to style her hair the next day. He also talked about two ferrets and a lizard that he had in his hotel room. At approximately 6:00 p.m., Perkins asked A.L. for a ride to his hotel because he was worried about his animals.

A.L. drove Perkins to his hotel. They entered through the main area of the hotel so that A.L. could use the restroom and Perkins could pay for another night's lodging. When A.L. came out of the restroom, she observed that Perkins had just purchased a six-pack of beer. He was "ranting and raving" because his possessions had been taken out of his room and his animals had been sent to the humane society. Upon seeing A.L., Perkins asked her to help him carry the beer to his room because his hands were full with the belongings that the hotel manager had given back to him. Once inside his room, Perkins offered A.L. a beer and either turned on the TV or put on some music. As she opened the beer and lit a cigarette, A.L. noticed that there were no hair design books and asked Perkins about them. He responded that someone must have taken them. At this point, A.L. realized that "it just seemed too fishy" and said she thought she should go, but Perkins would not let her out of the door.

Perkins told A.L. to put her purse down and to stand up. She believed that he was joking, but when she did not comply, Perkins grabbed her by the throat and told her to take her shirt off. He also told her not to scream or he would kill her. Continuing to grip A.L. by her throat, Perkins forcibly guided her to the bed, again telling her to take her shirt off. Perkins then pushed A.L. onto the bed and sat on top of her. While holding A.L. down, Perkins took his clothes off, removed A.L.'s shorts, called her a "bitch," and told her that if she did not cooperate he would kill her. During the assault, Perkins kept saying "I got your fancy underwear messed up," and continually told A.L. that she wanted to die. He also choked A.L. and hit her with a closed fist.

According to the police report, Perkins never removed A.L.'s underwear, but did penetrate her. At the time of the assault, A.L. did not know whether Perkins had ejaculated, but recalled Perkins telling her that he intended to ejaculate inside her. The test results run at the hospital after the assault revealed that Perkins did ejaculate inside her.

After Perkins completed the sexual assault, he threw A.L. on the floor and kept choking her, stating, "I should kill you. You're not the first one I've tried to kill." Perkins said that he was going to let her die just like his wife died. A.L. stated that she began to black out and everything "started flashing." At this point, A.L. believed that she was going to die, but Perkins stopped choking her, pulled her up, pushed her against the bed, and told her to take off all of her rings. He then put a pillow over her face and again said that he would kill her. He told her to take off her bra and lay down on her stomach, which she did. Perkins used A.L.'s bra to tie her arms and ankles behind her back, threatening to come back to kill her and her children if she was not quiet. Perkins then took A.L.'s money, car keys, food stamps, and jewelry; exited the room; and drove off in her car. After Perkins departed, A.L. crawled to the window, observed that her car was gone, crawled back to the phone, and dialed 911. The police arrived at the scene, and A.L. was taken to the Owatonna Hospital where she was interviewed by the police and examined by a physician. The physician who examined A.L. stated that she had numerous bruises on her body, but found no trauma to A.L.'s vagina or anal canal.

Shortly after the assault, a state trooper saw A.L.'s car traveling south on I-35. He pursued the car to a rest area where the driver parked the car and fled. The driver left the door open, the lights on, and the engine running. The trooper was unable to apprehend the driver. The trooper examined the car and found a duffle bag containing items belonging to Perkins.

On September 9, 1993, a complaint was filed charging Perkins with two counts of first-degree criminal sexual conduct, Minn.Stat. § 609.342, subd. 1(c) (1996) (penetration under circumstances causing reasonable fear of imminent great bodily harm); id. at subd. 1(e)(i) (penetration using force or coercion resulting in personal injury); and one count of fifth-degree assault, id. § 609.224, subd. 1 (1996). Perkins was also charged with felony counts of aggravated robbery, id. § 609.245 (1992); kidnapping, id. § 609.25, subd. 1(2), (3), subd. 2(1) (1992); terroristic threats, id. § 609.713, subd. 1 (Supp.1993); and auto theft, id. § 609.52, subd. 2, subd. 3(3)(d)(v) (1992). Perkins was subsequently arrested in Nebraska on September 19, 1993 and extradited to Minnesota on September 28, 1993.

Perkins' criminal and medical records indicate that he is a 32-year-old white male who dropped out of high school after the tenth grade and has a GED. He grew up in a dysfunctional and abusive family, and was sexually molested first by his uncle at age 7 or 8, and then by his school teacher at age 11. He has been heavily involved in alcohol and drugs. He tested positive for HIV in March 1992 and has been in the full-blown stages of AIDS since March or April 1993. He has been convicted of drug and burglary offenses, but has no prior record of sex offenses.

Perkins claimed that his sexual encounter with A.L. was consensual and stated: "I met a girl, we got drunk, we had sex at the motel where I was staying. I stoled [sic] her car when she passed out. Then she hollered rape and pressed charges." Perkins claimed that he informed A.L. at least twice before any sexual contact occurred that he had HIV. He claimed that, after having sex, A.L. went to sleep and he decided to steal her car. He had no explanation for why he abandoned A.L.'s car in the rest area. He denied any guilt and claimed that the bruises on A.L.'s face and neck were inflicted by her husband during a fight. He also denied taking A.L.'s rings or telling her to be quiet or he would come back to kill her.

A.L. stated that Perkins never told her that he had HIV, and that she first learned of his illness the day after the sexual assault. A.L. stated that as a result of the assault her marriage was dissolved, she lost friends, and she was fired from her job as a clerk in a convenience store due to fear of infection and contamination of the products sold at the store. At the time of the presentence investigation, A.L. was employed as a dancer and stated that she would not be doing this type of work "if I didn't have to." She also stated that she often wondered what she would do with her children if she is, in fact, infected with HIV. In addition to the emotional and societal costs of the assault, A.L. had clinic and medical expenses that insurance did not cover. At the time of the presentence investigation, A.L. had not decided whether she would...