Opinion
No. C3-96-1254.
Filed October 8, 1996.
Appeal from the District Court, Meeker County, File No. K194199.
Hubert H. Humphrey, III, Attorney General, Catherine M. Keane, Assistant Attorney General, (for respondent)
Michael J. Thompson, Meeker County Attorney, Constance J. Crowell, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, (for appellant)
Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Ronald Harrison was convicted of criminal sexual conduct in the first degree, Minn. Stat. § 609.342, subd. 1(h)(iii) (1994), and criminal sexual conduct in the third degree, Minn. Stat. § 609.344, subd. 1(g)(iii) (1994). He was adjudicated a patterned sex offender. Harrison appeals, alleging the trial court erred in determining that he was a patterned sex offender and in departing upward in sentencing. We affirm.
DECISION
The decision to depart from sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).
1. Harrison argues that the trial court erred in determining that he is a "patterned sex offender." He contends that under the provisions of Minn. Stat. § 609.1352 (1994), he should not be considered a "patterned sex offender" because the criminal sexual conduct with his nephew occurred prior to the statutory enactment in 1989. Harrison also contends that the criminal sexual conduct with his nephew resulted from a single course of conduct, all of which occurred before the patterned sex offender statute became effective. He argues, therefore, that the trial court's finding that he was a patterned sex offender should be reversed.
In order to conclude that a person is a patterned sex offender, the trial court must find that:
(1) a person has been convicted of a crime motivated by the offender's sexual impulses or that was part of a predatory pattern that had criminal sexual conduct as its goal;
(2) the offender is a danger to public safety; and
(3) the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release. The finding must be based on a professional assessment by an examiner experienced in evaluating sex offenders that concludes that the offender is a patterned sex offender.
A patterned sex offender is one whose criminal sexual behavior is so ingrained that the risk of reoffending is great without intensive psychotherapeutic intervention or other long-term controls. Minn. Stat. § 609.1352, subd. 1(a)(3).
See Minn. Stat. § 609.1352, subd. 1 (1994); State v. Stirens, 506 N.W.2d 302, 305 n. 6 (Minn. 1993). "The statute applies to offenses committed on or after August 1, 1989." State v. Murray, 495 N.W.2d 412 (Minn. 1993). A person can be sentenced under the patterned sex offender statute only if there is no reasonable likelihood that all of the multiple acts of penetration occurred before the statute became effective. Id. at 413.
[I]f 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 and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.
Minn. Stat. 609.035 (1994). However, when criminal incidents are separate and distinct, they are not considered to be part of the same behavioral incident. Bangert v. State, 282 N.W.2d 540, 546 (Minn. 1979) (factors to consider in detemining whether multiple violations constitute a single behavioral incident are unity of time, place, and criminal objective).
At sentencing, the trial court, citing to Murray, concluded that there was "no reasonable likelihood that all of [Harrison's] acts of multiple penetration occurred prior to the date the pattern sex offender statute became effective." In reviewing the statutorily required psychological assessment completed by Dr. John Austin, Ph.D., the trial court noted that the examiner determined Harrison was a patterned sex offender. Concluding that Dr. Austin accurately assessed the severity of Harrison's current offense and social history, the trial court found that Harrison was a danger to public safety due to his previous commission of a predatory crime and that he was in need of long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release. Based on these findings, the trial court concluded that Harrison was a patterned sex offender.
We observe that Harrison neither denies that the statutory factors have been met nor takes issue with Dr. Austin's professional opinion. He cites us to no authority in support of his contention that the findings of the trial court were in error or that the crimes for which he was sentenced were not separate and distinct incidents. We conclude that the trial court properly followed the provisions of Minn. Stat. §§ 609.1352 and 609.035 before making a determination as to Harrison's criminal status. Harrison's predicate offense of criminal sexual conduct, which was used by the trial judge to trigger sentencing under the patterned sex offender statute, is a separable offense. Although each offense involved the same victim, we are directed to no evidence to show that there was unity of time or place, which might otherwise describe a single behavioral incident. The earlier conduct was "previously committed," a term the statute uses rather than requiring a previous conviction. Minn. Stat. § 609.1352, subd. 3(2) (1994). Therefore, we cannot conclude that the trial judge erred in fashioning Harrison's sentence as to count VIII. Absent evidence to show error by the trial court, we hold that Harrison was properly adjudged a patterned sex offender.
2. Harrison also argues that the trial court abused discretion by concluding that he should be sentenced to 120 months incarceration. He contends that even if he was correctly termed a patterned sex offender, the trial court used the wrong criminal history score and presumptive sentence when determining his sentence for criminal sexual conduct in the third degree. In light of the sentencing error, Harrison argues, his case should be remanded to the trial court for resentencing.
When aggravating or mitigating circumstances are present, a judge may depart from the presumptive guidelines. See Minn. Sent. Guidelines II.D.2; cmt. II.D.01. Upward departure is within the sentencing court's discretion only if "substantial and compelling" aggravating circumstances are present. State v. Davis, 540 N.W.2d 88, 91 (Minn.App. 1995) (citing Garcia, 302 N.W.2d at 647), review denied (Minn. Jan. 31, 1996). If the record supports findings that substantial and compelling circumstances exist, this court will not modify the departure unless we have a strong feeling that the sentence is disproportional to the offense. State v. Anderson, 356 N.W.2d 453, 454 (Minn.App. 1984). The finding that a person is a patterned sex offender constitutes an aggravating factor. See Minn. Sent. Guidelines II.D.2(b)(7); cmt. II.D.204. Because the court has properly determined that the defendant is a patterned sex offender, enhanced sentences are also authorized. See Minn. Stat. § 609.1352. Under the patterned sex offender statute, a court must sentence a defendant to not less than double the presumptive sentence and not more than the statutory maximum. Minn. Stat. § 609.1352, subd. 1.
Based on Harrison's history of criminal sexual conduct, the trial court stated that he planned to impose a sentence upon Harrison to be served consecutive to his previous 1994 conviction and concurrent as to the sentences in this matter. On Harrison's conviction for criminal sexual conduct in the first degree, therefore, the trial court, on March 28, 1995, sentenced him to 43 months incarceration, to be served consecutively to the 1994 sentence he is now serving. Then, on Harrison's conviction for criminal sexual conduct in the third degree, the trial court, while imposing a sentence to be served concurrently with the first-degree criminal sexual conduct conviction, noted that the presumptive sentence for this offense was 81 months incarceration. However, because Harrison was adjudged a patterned sex offender, the trial court ordered him to serve a sentence of 120 months incarceration. Upon remand, the trial court explained that the previous crime upon which the finding of patterned sex offender was predicated was the first-degree criminal sexual conduct sentenced on March 28, 1995, based on events occurring from 1979 through 1988. This explanation adequately answered the remand questions of this court.
The patterned sex offender statute authorizes a departure in sentencing for any defendant adjudged a patterned sex offender. Similarly, the Minnesota Sentencing Guidelines acknowledge the patterned sex offender status as an aggravating factor sufficient to warrant an upward departure in sentencing. Minn. Sent. Guidelines II.D(b)(7) Harrison was sentenced to the statutory maximum of 120 months incarceration for his convictions, based on the trial court finding that Harrison was a patterned sex offender, and the trial court properly explained his reasons for the latter conclusion. Because Harrison's sentence does not exceed the statutory maximum of 40 years, Minn. Stat. § 609.1352, subd. 1(a) (Supp. 1995), we cannot say that the trial court's sentence was an abuse of discretion.
We note, however, the difficulty of reviewing this complex sentencing matter when the trial court fails to make written findings of fact and we are left to interpret the trial transcript. Written findings are necessary for adequate appellate review. See State v. Balma, 549 N.W.2d 102, 105 (Minn.App. 1996). Although the trial court's failure to make findings is error, we conclude that the trial court's sentencing does not require reversal or a further remand.