State v. Cox, C2-83-225

• Decision Date: 03 February 1984
• Docket Number: No. C2-83-225,C2-83-225
• Citation: 343 N.W.2d 641
• Parties: STATE of Minnesota, Respondent, v. Timothy COX, Appellant.
• Court: Minnesota Supreme Court

Page 641

343 N.W.2d 641

STATE of Minnesota, Respondent, v. Timothy COX, Appellant.

No. C2-83-225.

Supreme Court of Minnesota.

Feb. 3, 1984.

Syllabus by the Court

Ordinarily when a defendant pleads guilty to a lesser offense of a charged offense, the trial court may not base an upward durational departure on evidence indicating that defendant could have been convicted of the charged offense; in this case, however, a durational departure was nonetheless justified because the record establishes that defendant could have been given a greater sentence than the presumptive sentence for the charged offense if he had been convicted of that offense.

C. Paul Jones, State Public Defender by Mark F. Anderson, Asst. State Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin County Atty., Minneapolis, for respondent.

Considered and decided by the court en banc without oral argument.

AMDAHL, Chief Justice.

This is an appeal, pursuant to Minn.Stat. Sec. 244.11 (1982), from an upward durational departure in a rape case. We affirm.

On July 22, 1982, a female real estate agent was at a South Minneapolis house putting up a lawn sign when defendant approached and asked her about the terms of the offer. The agent entered the house with defendant and began showing him the house. In the basement defendant grabbed her from behind, forced her onto the floor and raped her. After completing the act, defendant took the victim's clothing and left the premises. In order to report the incident, the victim had to run "partially naked" to another house.

The victim gave police a description of defendant's T-shirt, which had the name of a business on it and the name "Tim." Police learned that defendant, whose first name is Timothy, was employed by the business. On July 26 the police talked with defendant and obtained a confession from him.

Defendant was charged with criminal sexual conduct in the first degree, Minn.Stat. Sec. 609.342(c) (1982) (forced penetration accompanied by reasonable fear of imminent great bodily harm). On October 18, 1982, he pleaded guilty to criminal sexual conduct in the third degree, Minn.Stat. Sec. 609.344(c) (1982) (forced penetration).

The presentence investigation report stated, apparently to the surprise of all the parties, that the victim had fractured a vertebra when the defendant forced her or wrestled her to the floor, that she spent a month in the hospital and underwent back surgery as a result, that her medical and hospital bills exceeded $18,000, and that she was taking medication and was going to be permanently disabled.

The presumptive sentence for the offense of conviction (a severity level VII offense) by a person with defendant's criminal history score (zero) is an executed term of 24 (23-25) months in prison. Based on the information in the presentence investigation report, the trial court departed durationally from the presumptive sentence and sentenced defendant to 48 months in prison. Subsequently, on motion of defendant, the trial court reduced defendant's sentence to 42 months, which is within the presumptive sentence range (41-45 months) for criminal sexual conduct in the first degree by a person with defendant's criminal history score.

The general issue that faces a sentencing court in deciding whether to depart durationally is whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question. In making this determination the court may not consider evidence that points to the defendant's guilt of some other offense but that does not support the conclusion that the defendant committed the offense in question in a particularly serious way. On the other hand, generally it is proper for the sentencing court to consider the course of conduct underlying the charge for which the defendant is being sentenced. State v. Gross, 332 N.W.2d 167 (Minn.1983); State v. Running, 330 N.W.2d 119 (Minn.1983); State v. Peterson, 329 N.W.2d 58 (Minn.1983); State v. Norton, 328 N.W.2d 142 (Minn.1982); State v. Brusven, 327 N.W.2d 591 (Minn.1982); State v. Womack, 319 N.W.2d 17 (Minn.1982); State v. Brigger, 316 N.W.2d 512 (Minn.1982); State v. Rott, 313 N.W.2d 574 (Minn.1981); State v. Garcia, 302 N.W.2d 643 (Minn.1981).

The Womack case recognized an exception to the principle that generally the sentencing court may consider the underlying conduct in determining whether the defendant committed the offense in a particularly serious way. The defendant in Womack was charged with being a felon in possession of a pistol and with assault in the second degree (assault with a dangerous weapon). The defendant pleaded guilty to the possession charge on the understanding that the assault charge would be dismissed, but in sentencing the defendant the court based a durational departure on its belief that the defendant had committed the assault. We held that this was improper and reduced the defendant's sentence to the presumptive sentence length, stating:

[W]e believe that it was error in this case for the trial court to rely on the overall course of conduct as justification for aggravating defendant's sentence for the possession charge. Defendant admitted that he violated the law in possessing the gun but at all times he has claimed that he used it against the complainant only in self-defense, first in striking her when she attacked him with the knife, later to fire in the air and frighten her in an attempt to stop her from attacking him as he attempted to drive away. Defendant had a right to have a jury...