Opinion
No. C8-98-1884.
Filed July 20, 1999.
Appeal from the District Court, Hennepin County, File No. 98033185.
Mike Hatch, Attorney General, (for respondent)
Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Crippen, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat § 480A.08, subd. 3 (1998)
UNPUBLISHED OPINION
In a sentencing appeal, Michael Pratt challenges the district court's double durational departure from the sentencing guidelines' presumptive sentence for third-degree assault. Substantial and compelling circumstances enumerated by the court support the upward departure, and the additional issues raised in Pratt's pro se brief do not provide a basis for relief from conviction or sentencing. We affirm.
FACTS
A jury found Michael Pratt guilty of third-degree assault committed against Thelma Bullman. Bullman was at her sister's apartment when Pratt appeared and asked to talk with her. Because Pratt was unwelcome at Bullman's sister's apartment, Pratt and Bullman spoke outside in the hallway, and then Bullman asked a friend who was there if they could go to the friend's apartment next door. The friend agreed, and Pratt, Bullman, the friend, and the friend's 14-year-old child sat at the kitchen table. Pratt repeatedly asked for money and told Bullman to leave the apartment with him, and Bullman repeatedly refused. When Bullman's friend momentarily left the room, Pratt shoved Bullman to the floor. As she fell, Bullman hurt her hip on the radiator. While she was lying on the floor, Pratt kicked her five or six times in the head, twice in her left eye socket. He then left the apartment, telling the 14-year-old child who had witnessed the assault to "[g]o ahead and call the cops."
The doctor who performed surgery on Bullman the next day described Bullman's eyelid as "basically cut into two pieces" and said that a cut next to her eyelid on the side of her nose partially cut the tear duct. A bone inside the eye cavity was fractured. The doctor further testified that Bullman had sustained a "temporary but substantial disfigurement" and a "temporary but substantial loss or impairment of the function of the structures around her eye" and that in the future she could possibly have malposition of the eyelid, drying of a part of the eye, and difficulty moving the eye in a coordinated manner with her other one.
Pratt has a long history of committing domestic abuse against Bullman. Police responded to no fewer than 21 incidents between January 1993 and January 1998. Of these incidents, six have resulted in complaints charging fifth-degree assault. Of these complaints, one has resulted in a plea to disorderly conduct and the other two resulted in stayed sentences. The state has had difficulty in successfully prosecuting Pratt, in part because Bullman has not shown up to testify.
The state moved for an upward durational departure and a dispositional departure on the following grounds: (1) Pratt's unamenability to probation; (2) Pratt's assaultive history against Bullman; (3) Bullman's vulnerability; (4) Pratt's lack of remorse; (5) the particular cruelty of the gratuitous violence inflicted on Bullman; (6) the nature of Bullman's injuries; and (7) the presence of a child during the assault. Pratt appeals from the district court's sentence imposing a durational and dispositional departure.
DECISION
To ensure that punishment for felony convictions is proportional to the severity of the offense and an offender's criminal history, a sentencing court may deviate from the Minnesota Sentencing Guidelines only when there are "substantial and compelling circumstances" for the departure. State v. Peake , 366 N.W.2d 299, 301 (Minn. 1985) (quoting State v. Garcia , 302 N.W.2d 643 (Minn. 1981)); see Minn. Sent. Guidelines II.D. Substantial and compelling circumstances are factors relating to personal culpability that show conduct significantly more serious than what is typically involved in the commission of the offense. State v. Cox , 343 N.W.2d 641, 643 (Minn. 1984); State v. Wright , 310 N.W.2d 461, 462-63 (Minn. 1981). If the record supports the district court's findings on conduct justifying a departure, a reviewing court will not modify the sentence absent a "strong feeling" that it is disproportionate. State v. Anderson , 356 N.W.2d 453, 454 (Minn.App. 1984) (citing State v. Schantzen , 308 N.W.2d 484, 487 (Minn. 1981)).
Three of the reasons listed by the district court, if factually supported, provide a basis for an upward durational departure: particular vulnerability, particular cruelty or gratuitous violence, and presence of a child when the crime was committed. See Rairdon v. State , 557 N.W.2d 318, 326 (Minn. 1996) (particular vulnerability); State v. Folkers , 581 N.W.2d 321, 327 (Minn. 1998) (particular cruelty); State v. Winchell , 363 N.W.2d 747, 750-51 (Minn. 1985) (committed in the presence of a child).
Particular vulnerability of the victim is a legitimate basis for an upward departure. Minn. Sent. Guidelines II.D.2.b.(1); Rairdon , 557 N.W.2d at 326. But the defendant must have exploited the vulnerability to commit the criminal act. State v. Gardner , 328 N.W.2d 159, 162 (Minn. 1983). The record supports the district court's finding that Bullman was particularly vulnerable and that Pratt knew of the vulnerability and exploited it. During the six or seven years Pratt has known Bullman, the police have arrested Pratt 18 times for domestic-abuse-related incidents. Bullman has apparently been a reluctant or frightened witness who has been unable to protect herself from further abuse. See State v. Elvin , 481 N.W.2d 571, 576 (Minn.App. 1992) (finding of particular vulnerability supported by record of repeated attacks of same victim who was intimidated and unable to self-protect), review denied (Minn. Apr. 29, 1992).
Particular cruelty is also a legitimate factor to support a durational departure. Minn. Sent. Guidelines II.D.2.b.(2). Gratuitous infliction of harm falls within this category. See, e.g., State v. Jeno , 352 N.W.2d 82, 84 (Minn.App. 1984). But an element essential to the crime cannot be an aggravating factor. State v. VanZee , 547 N.W.2d 387, 392 (Minn.App. 1996), review denied (Minn. July 10, 1996). And the evidence cannot just demonstrate that the defendant was also guilty of some other offense; it must show that the act constituting the offense was committed in a particularly serious way. State v. Ott , 341 N.W.2d 883, 884 (Minn. 1984).
Infliction of not just one, but all, of the statutory definitions of the "harm element" of an assault, however, satisfies the requirement that the offense be significantly more serious than the typical commission of the crime. See State v. Felix , 410 N.W.2d 398, 401 (Minn.App. 1987) (infliction of all of the factors defining "great bodily harm" made the first-degree assault significantly more serious than the typical, justifying an upward departure), review denied (Minn. Sept. 29, 1987).
Pratt kicked Bullman five or six times in the head, twice in the eye. In the process, he did not satisfy only one of the statutory definitions of "substantial bodily harm," but all three. Bullman sustained a bodily injury that involved a "temporary but substantial disfigurement," a "temporary but substantial loss or impairment of the function of [her eye]," and a bone fracture. See Minn. Stat. § 609.02, subd. 7a (1998) (defining "substantial bodily harm"). Because Pratt caused not just one, but all three kinds of injuries that satisfy the harm element of third-degree assault, an upward departure was appropriate. See Felix , 410 N.W.2d at 401.
Pratt's assaulting Bullman in front of a child is a third permissible aggravating factor for the upward durational departure. Winchell , 363 N.W.2d at 750-51 (child in room during aggravated robbery "particularly outrageous act"); State v. Profit , 323 N.W.2d 34, 36 (Minn. 1982) (committing aggravated robbery and attempted criminal sexual conduct in the bathroom of day-care center "particularly outrageous act" because of the presence of children). Pratt knew the 14-year-old was in the room during the assault and acknowledged her witnessing it when he left, saying "[g]o ahead and call the cops." These three reasons, particular vulnerability, particular cruelty, and the presence of the child, in combination, justify a double durational departure.
Pratt, in the brief written by his attorney, states that he is not challenging the dispositional departure, but in his supplemental pro se brief, he reasserts this argument. Consequently we address it. The focus in dispositional departures shifts from the offense to the offender. State v. Heywood , 338 N.W.2d 243, 244 (Minn. 1983) (sentencing court must weigh rehabilitation and needs of society). The defendant's unamenability to probation, lack of remorse, or a propensity to recommit are appropriate considerations for a dispositional departure. See State v. Chaklos , 528 N.W.2d 225, 228 (Minn. 1995) (amenability to probation); State v. McGee , 347 N.W.2d 802, 806 n. 1 (Minn. 1984) (remorse); State v. Andren , 347 N.W.2d 846, 848 (Minn.App. 1984) (likelihood of repeated criminal acts).
At the time of sentencing, Pratt had repeatedly been placed on probation, but the probation had been unsuccessful. Pratt's astonishing record of repeated physical abuse of Bullman unequivocally demonstrates a propensity to recommit. And, significantly, Pratt showed no remorse for his actions until the date of sentencing. Pratt denied his conduct and, after conviction, maintained, falsely, that he was not violent in other relationships and that only Bullman evoked his violent behavior. The dispositional departure was well supported.
Pratt also implies that he did not know the consequences of declining a proposed plea bargain, but the record does not support his claim. The record also fails to support his claim that he was denied a speedy trial. He entered a plea of not guilty on April 21, 1998, and demanded a speedy trial. His case went to trial June 12, 1998, within the time requirement for a speedy trial. See Minn.R.Crim.P. 11.10 (trial shall commence within 60 days of the date of the demand, unless good cause is shown for later date).