State v. Norton, 82-444.

• Decision Date: 30 December 1982
• Docket Number: No. 82-444.,82-444.
• Citation: 328 NW 2d 142
• Parties: STATE of Minnesota, Respondent, v. Clyde Rae NORTON, Appellant.
• Court: Minnesota Supreme Court

328 N.W.2d 142 (1982)

STATE of Minnesota, Respondent, v. Clyde Rae NORTON, Appellant.

No. 82-444.

Supreme Court of Minnesota.

December 30, 1982.

C. Paul Jones, Public Defender, and Mollie G. Raskind, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., and Vernon E. Bergstrom, Chief, Appellate Div., Minneapolis, for respondent.

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

AMDAHL, Chief Justice.

This is a criminal appeal from judgment of conviction which raises only one issue, whether there were severe aggravating circumstances present justifying a durational departure of greater than two times the presumptive sentence established by the Minnesota Sentencing Guidelines. We hold that there were severe aggravating circumstances present, and we affirm the sentence.

On September 25, 1981, a 5-year-old Minneapolis girl was playing in front of her home when a man whom she did not know picked her up, put her in a car and drove off. The victim's sister, who saw the incident, reported what had happened to the children's babysitter. The sister described the car as light brown with a black roof. The sitter notified the victim's mother, and the police were called.

Several hours later, defendant, carrying the victim, walked into Jim's Standard in Farmington, which is 25 miles south of Minneapolis in Dakota County. Defendant told the attendant that he had a flat tire which needed to be fixed or replaced. The victim stated, "He's not my daddy." Defendant became flustered and said, "What are you talking about, yes I am. Be good and I'll buy you a candy bar." The attendant called the police, who came and arrested defendant. Defendant was driving a 1971 Chevrolet with a brown body and black top.

The victim told a state trooper that defendant had taken her to a cornfield and made her lie down and threatened to kill her if she did not pull her pants down. She also said that defendant kissed her like a big girl. Later, in a statement to police, she said that defendant forced her to commit fellatio.

Defendant, who was 25 at the time, has a long history of severe alcohol dependency. Although he has no prior felony record, he has a fairly long record of alcohol-related misdemeanor offenses. In a statement to police, he said that he did not remember picking up the victim but did remember having her in his car and out in a corn field and admitting knowing that "that's a bad thing."

The state filed a complaint against defendant on September 28, charging him only with kidnapping, Minn.Stat. § 609.25, subds. 1(2), 2(2) (1980) (kidnapping with victim not released in safe place or with victim suffering great bodily harm). The state gives two reasons, the age of the victim and the fact that the victim had no idea in which county the sexual abuse occurred, for not charging defendant with criminal sexual conduct.¹

On October 29, defendant, represented by counsel, pleaded guilty to the kidnapping charge. He testified that, although he blacked out for periods of time on the day in question, he did remember being in the car with the victim and remembered being in a gas station. He testified that if he went to trial he would not be able to refute the evidence that he kidnapped the victim or the evidence concerning what happened in the cornfield. He admitted that he did not release the victim in a safe place before he was caught.

A presentence investigation was conducted by a probation officer. Defendant told the officer that he left work early on September 25 because he had a hangover. He stated that he bought lots of beer and started driving around the Twin Cities, drinking the beer as he drove, and that he later stopped in a St. Paul bar and drank beer for 3 more hours. He claimed that he then went into a blackout. He said that this was not the first time that had happened. He stated that his next recollection was being in the car late at night and realizing that the victim was in the car with him. He claimed that he went to the gas station to use the telephone to call the girl's family but that he was too intoxicated to use the telephone. He denied any recollection of kidnapping the victim or of taking her into a cornfield.

The offense is a severity level VII offense. The presumptive sentence for this offense by one with defendant's criminal history score, which is zero, is 24 (23-25) months in prison.

The trial court imposed a sentence of 72 months, which is three times the presumptive sentence. In his remarks on the record in support of the departure, the court cited (1) the victim's vulnerability due to age, (2) the mental cruelty involved, and (3) the random and bizzare nature of the offense. The trial court expanded on these points in a written memorandum.

This appeal followed.

A determination of the issue whether the trial court erred in imposing a 72-month prison term requires an analysis of (a) what facts may be considered in determining whether there were aggravating factors present, (b) what were the aggravating factors, and (c) whether the aggravating factors were serious enough to justify a sentence greater than double the presumptive sentence.

(a) The two key cases on what facts may be considered in determining whether there were aggravating factors present are State v. Garcia, 302 N.W.2d 643 (Minn.1981) and State v. Womack, 319 N.W.2d 17 (Minn. 1982).

In Garcia, the defendant was charged with kidnapping and criminal sexual conduct in the first degree for kidnapping a young woman leaving a St. Paul disco and forcing her to have sexual relations (both vaginal intercourse and fellatio) with him. Pursuant to a plea agreement, he was permitted to plead guilty to the kidnapping charge, and the sex charge and an unrelated drug charge were dismissed. One of the issues on appeal was the propriety of a limited durational departure from the presumptive sentence. We upheld the departure because, during the kidnapping, the defendant treated the victim "in a particularly cruel way, driving her around for 2 hours in a wild fashion and subjecting her to psychological terror and gross physical and sexual abuse." 302 N.W.2d at 647. We added that "Recognizing and relying on this does not in our opinion amount to improper reliance on offenses of which the defendant was not convicted namely, the sex charge, which was dismissed. We believe that the sentencing court in sentencing on a kidnapping conviction should be permitted to consider what happened during the kidnapping." Id.

In a number of other cases following Garcia, we have indicated that generally it is proper for the sentencing court to consider the conduct underlying the charge of which the defendant was convicted. See, e.g., State v. Rott, 313 N.W.2d 574 (Minn. 1981); State v. McClay, 310 N.W.2d 683 (Minn.1981).

However, in Womack, we were faced with a situation which called for an exception to the general rule that a sentencing court can consider circumstances underlying the charge of which the defendant was convicted. In that case the defendant was charged with possession of a pistol by a felon and 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. The sentencing court based a durational departure on the belief that the defendant had committed the assault. Holding this improper, we reduced defendant's sentence to the presumptive sentence length. Our opinion stated:

Notwithstanding Garcia and related cases, we 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 determine his guilt or innocence of that charge. He gave up that right only on condition that the charge would be dismissed in exchange for his guilty plea to the possession charge. It is one thing for the sentencing court to look at the conduct underlying the offense to which the defendant pled guilty if the defendant admits that the underlying conduct occurred, but it is quite another thing when the defendant denies that such conduct occurred. In this case the defendant at all times has claimed that he acted in self-defense. Stated differently, although defendant obtained a dismissal of the assault charge in exchange for his guilty plea and although he has never admitted his guilt of the assault charge, he received a term of 30 months, which is the duration of the term which would have been presumptively appropriate if he had been convicted of the assault by a jury.

The state\'s response is that as a matter of law defendant did not act in self-defense. However, upon analysis it becomes apparent that the state is really arguing that as a matter of fact defendant did not act in self-defense. Given the way in which the case was presented to the trial court, the trial court was not entitled to act as factfinder and determine whether defendant was telling the truth when he claimed that the complainant attacked him with a knife. That being so, we believe that the departure, based on the sentencing court\'s factfinding, was improper. Accordingly, defendant\'s sentence is reduced to 16 months.

319 N.W.2d at 19-20.

We do not have the problem in this case that we had in Womack. Here defendant testified at the guilty plea hearing that he had no recollection of the kidnapping or of what happened in the cornfield. He added that if the case went to trial he would not be able to refute the evidence that...