State v. Grampre, No. A08-0454.

• Decision Date: 09 June 2009
• Docket Number: No. A08-0454.
• Citation: 766 N.W.2d 347
• Parties: STATE of Minnesota, Respondent, v. Chad Joseph GRAMPRE, Appellant.
• Court: Minnesota Court of Appeals

766 N.W.2d 347

STATE of Minnesota, Respondent, v. Chad Joseph GRAMPRE, Appellant.

No. A08-0454.

Court of Appeals of Minnesota.

June 9, 2009.

Lori Swanson, Attorney General, St. Paul, MN; and James C. Backstrom, Dakota County Attorney, Cheri Ann Townsend, Thomas E. Lockhart, Assistant County Attorneys, Dakota County Judicial Center, Hastings, MN, for respondent.

Lawrence Hammerling, Chief Appellate Public Defender, Cathryn Middlebrook, Assistant Public Defender, St. Paul, MN, for appellant.

Considered and decided by JOHNSON, Presiding Judge; HALBROOKS, Judge; and ROSS, Judge.

OPINION

JOHNSON, Judge.

Chad Joseph Grampre broke into a woman's home while she slept in her bed and then sexually assaulted her as he held a knife to her throat. He pleaded guilty to two counts of first-degree criminal sexual conduct, one count of first-degree burglary, and one count of second-degree assault. The district court sentenced him to 306 months of imprisonment on each conviction of criminal sexual conduct, which is an upward durational departure of 126 months from the presumptive guidelines sentence of 180 months.

Grampre argues that the district court erred by imposing an upward durational departure. We conclude that the district court did not err because the aggravating factor of particular cruelty is applicable and because the three aggravating factors on which the district court relied collectively support the sentence imposed. Grampre also argues that the district court erred by convicting him and imposing sentences on both counts of first-degree criminal sexual conduct. The state concedes that the district court erred in doing so. Therefore, we affirm the upward departure but vacate one of Grampre's criminal-sexual-conduct convictions.

FACTS

Early one morning in April 2007, Grampre broke into the home of a woman in the city of Lakeville. The woman awoke to find Grampre on top of her, holding a knife to her throat. Grampre demanded that she remove her clothes; she did so. The woman asked Grampre to lock her bedroom door so that her six-year-old daughter would not enter the bedroom, which he did. Grampre ordered the woman to lie down, and he penetrated her vagina with his penis. Grampre ejaculated on the sheets. Grampre then ordered the woman to take a shower to wash herself. He also used the knife to cut out a section of the sheet on which he had ejaculated, which he removed from the home when he fled. The woman waited until Grampre left the house, checked on her daughter, and then called the police.

When police officers responded to the woman's report, they spoke with Grampre, who was in the front yard of his mother's residence, which is across the street from the victim's home. Police obtained a DNA sample from Grampre, which the Bureau of Criminal Apprehension compared with a DNA sample obtained from the scene of the crime. The DNA test eliminated 99.999992% of the population but did not eliminate Grampre. When police officers told Grampre the results of the DNA test, he confessed to the crime.

The state charged Grampre with one count of first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subd. 1(d) (2006); one count of first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subd. 1(e)(i) (2006); one count of first-degree burglary in violation of Minn.Stat. § 609.582, subd. 1(c) (2006); and one count of second-degree assault in violation of Minn.Stat. § 609.222, subd. 1 (2006). In November 2007, Grampre pleaded guilty to all four counts. At his plea hearing, he admitted that he destroyed the piece of the bed sheet and threw the knife into the Mississippi River.

At the plea hearing, Grampre waived his right to a sentencing jury and agreed that unspecified aggravating factors were present. At a sentencing hearing in December 2007, the district court found three aggravating factors: particular cruelty; particular vulnerability; and a high degree of planning, preparation, and concealment.¹ The district court sentenced Grampre to 306 months of imprisonment on each conviction of first-degree criminal sexual conduct, an upward durational departure from the presumptive guidelines sentence of 180 months of imprisonment; 78 months of imprisonment on the burglary conviction; and 39 months of imprisonment on the assault conviction, with all sentences to run concurrently. Grampre appeals.

ISSUES

I. Did the district court err by imposing an upward durational departure of 126 months of imprisonment from the presumptive guidelines sentence of 180 months based on the aggravating factors of particular cruelty; particular vulnerability; and high degree of planning, preparation, and concealment?

II. Did the district court err by convicting and sentencing Grampre on both counts of first-degree criminal sexual conduct?

ANALYSIS

I.

Grampre first argues that the district court erred by imposing an upward durational departure. His argument has two parts. First, he contends that particular cruelty is an impermissible factor in this case because it is based on facts that prove the elements of another offense of which he was convicted. Second, he contends that the remaining two factors (or all the factors, if all three are deemed permissible) do not support a 126-month upward departure.²

A district court must order the presumptive sentence provided by the sentencing guidelines unless there are "substantial and compelling circumstances" to warrant an upward departure. Minn. Sent. Guidelines II.D. Substantial and compelling circumstances are present when "the defendant's conduct in the offense of conviction was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Misquadace, 644 N.W.2d 65, 69 (Minn.2002). The guidelines provide a nonexclusive list of aggravating factors that may justify a departure. Minn. Sent. Guidelines II.D.2(b). The issue whether a particular reason for an upward departure is permissible is a question of law, which is subject to a de novo standard of review. State v. Jackson, 749 N.W.2d 353, 357 (Minn.2008). A district court's decision to depart from the sentencing guidelines based on permissible grounds is reviewed for an abuse of discretion. State v. Reece, 625 N.W.2d 822, 824 (Minn.2001).

A. Particular Cruelty

Grampre contends that the district court erred by relying on the aggravating factor of particular cruelty as a basis for the upward departure. In the district court, the state argued that Grampre engaged in particular cruelty because he woke the victim, held a knife to her throat throughout the sexual assault, and forced her to take a shower after he raped her. Grampre admitted these facts at the plea hearing. But he argues that the particular-cruelty factor is impermissible in this case because his use of the knife also was the factual basis for the conviction of second-degree assault.

Under long-established caselaw, if a district court's reasons for a departure are stated on the record, an appellate court must determine whether the stated reasons justify the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn.1985). A departure is justified if the reason or reasons stated are proper and if the severity of the sentence is within the district court's broad discretion. See State v. Shattuck, 704 N.W.2d 131, 139-40 (Minn.2005); Reece, 625 N.W.2d at 824; State v. Evans, 311 N.W.2d 481, 483 (Minn.1981).

In State v. Jones, 745 N.W.2d 845 (Minn. 2008), the supreme court reiterated the "boundaries" of a "proper departure" by identifying four types of improper grounds for a departure. Id. at 849. First, "`[t]he reasons used for departing must not themselves be elements of the underlying crime.'" Id. (alteration in original) (quoting State v. Blanche, 696 N.W.2d 351, 378-79 (Minn.2005)). Second, "[d]epartures cannot be based on uncharged or dismissed offenses." Id. Third, "[d]epartures cannot be based on conduct underlying an offense of which the defendant was acquitted." Id. Fourth, "conduct underlying one conviction cannot be relied on `to support departure on a sentence for a separate conviction.'" Id. (quoting State v. Williams, 608 N.W.2d 837, 840 (Minn. 2000)). The fourth limitation is justified in part by a statute that "prohibits cumulative punishment for conduct that constitutes more than one offense." Id. at 850. The statute provides that "if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses." Minn.Stat. § 609.035, subd. 1 (2006).

If we were to apply only the above-described principles of Jones, we would agree with Grampre that his use of the knife cannot be used both to convict him of second-degree assault, which includes assault "with a dangerous weapon," Minn. Stat. § 609.222, subd. 1, and to enhance his sentence for first-degree criminal sexual conduct. But Jones does not apply to Grampre because of the following statutory exception:

Notwithstanding subdivision 1, a prosecution or conviction for committing a violation of sections 609.342 to 609.345 with force or violence is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct. If an offender is punished for more than one crime as authorized by this subdivision and the court imposes consecutive sentences for the crimes, the consecutive sentences are not a departure from the Sentencing Guidelines.

Minn.Stat. § 609.035, subd. 6 (2006) (emphasis added). In Jones, the supreme court noted the exception in section 609.035, subdivision 6, commenting that it "reflect[s] legislative determinations concerning specific conduct that is eligible for increased punishment even when committed as part of the same behavioral incident." Jones, 745 N.W.2d at 850. But the exception was inapplicable in Jones because the defendant was convicted of committing criminal sexual conduct without the use of...