Paul Anjoorian, et al., Appellants, vs. Minneapolis Department of Public Safety, et al., Respondents, Star Tribune, a division of Cowles Media Company, a Delaware corporation, et al., Respondents.

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may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-98-242

State of Minnesota,

Respondent,

vs.

Ray Anthony Carothers,

Appellant.

Filed October 6, 1998

Affirmed

Willis, Judge

Ramsey County District Court

File No. KX963546

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

Deborah K. Ellis, Ellis Law Office, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN 55102 and Nelson Peralta, Peterson, Fishman, Livgard & Capistrant, 3009 Holmes Avenue South, Minneapolis, MN 55408 (for appellant)

Considered and decided by Amundson, Presiding Judge, Willis, Judge, and Holtan, Judge.*

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant challenges the district court's denial of his motion to withdraw his guilty plea, claiming that he was denied his right to make a statement or present information before sentencing, in violation of Minn. R. Crim. P. 27.03, subd. 3. He also claims his sentence exaggerates the criminality of his conduct. We affirm.

FACTS

On October 31, 1996, appellant Raymond A. Carothers sold cocaine to an undercover police officer. After the sale, the undercover officer signaled back-up police officers to move in and arrest Carothers. In an attempt to flee the scene, Carothers drove his car around a marked squad car. Sergeant Frank Zaruba stepped in front of Carothers's car and drew his weapon. Although Carothers claims that he did not intend to hit Sergeant Zaruba, Carothers accelerated his car and drove straight toward him. Carothers hit Sergeant Zaruba, carried him a short distance under the car, ran over him with his right tires, and then hit two other vehicles before opening the passenger door of his vehicle to escape. Another officer then struck Carothers's car with his vehicle; Carothers fell between the two vehicles and caught his leg under a rear tire of his vehicle.

Sergeant Zaruba suffered extensive injuries including a broken shoulder, broken ribs, a collapsed lung, severe facial injuries, a sprained right ankle, and numerous abrasions. He was hospitalized for several days and has undergone extensive plastic surgery for facial lacerations and to reattach his left earlobe. At the time of the pre-sentence investigation in October 1997, Sergeant Zaruba still experienced numbness in his back and legs, weakness in his left leg, and problems with short-term memory and irritability. Further, he had not recovered full use of his shoulder. He had returned to full-time "light duty" but was unable to meet the physical demands of his previous position with the narcotics unit and could no longer work overtime or perform the duties of his part-time position as an officer with the MTCO Transit Police.

Appellant was charged with first-degree assault in November 1996. In March 1997, the state amended its complaint to include a charge of attempted first-degree murder. Carothers pleaded guilty to first-degree assault in return for the state's agreement to drop the attempted first-degree murder charge. The guilty plea petition shows that Carothers understood his sentence would run concurrently with a federal sentence for violation of controlled substance law arising out of the same incident and any motion for an upward durational departure made by the state would be limited to a sentence totaling 239 months.

The state moved for an upward durational departure and requested a sentence of 239 months. At the hearing on the state's motion, the court told Carothers and his counsel that it would issue a written order but that Carothers would still have an opportunity to speak in mitigation of his sentence at the sentencing hearing. The court issued an order dated October 30, 1997, finding that because of the extent of Sergeant Zaruba's injuries and Carothers's callousness in inflicting those injuries, there was a basis in the record for an upward double durational departure. But because a double durational departure would be more than the statutory maximum for first-degree assault, the court stated that it intended to sentence Carothers to 239 months.

Carothers moved to withdraw his guilty plea on November 7, 1997, on the ground that because the October 30 order was "a sentencing order," Carothers was denied his right to speak in mitigation of his sentence before sentencing. Carothers also argued that the upward durational departure exaggerated the criminality of his conduct.

At the sentencing hearing, in response to Carothers's arguments that the October 30 order was improper and the state's suggestion that the court withdraw the order, the district court explained that it issued the order so Carothers's counsel could

argue intelligently when [Carothers] or she did use the right to allocute as to what she wanted to address because based on the findings I made, the findings are circumscribed by the facts at the sentencing hearing. And that's all I am addressing were those facts. Based on those facts what I said was, what I am inclined to do is give him 239 months unless there's something else that you have to say that would change my mind. So at least you knew ahead of time what I was thinking. I could have easily thought the same thing and not disclosed it to you and let you go forward in the dark. I thought this was the candid way to proceed, apparently you feel differently. But under those circumstances, I am denying the motion to withdraw. If you want to make some new law you can't tell somebody before sentencing what you are thinking of doing and you can't make findings based on what evidence was adduced at the hearing * * * [a]nd those facts that I indicated in that order would indicate the 239 months is an appropriate sentence.

The district court denied Carothers's motion to withdraw his guilty plea and then gave him and his attorney the opportunity to address the court regarding mitigating circumstances. Both Carothers and his attorney spoke to the judge but did not argue any specific mitigating circumstances other than Carothers's remorse for his conduct. The district court sentenced Carothers to 239 months, to run concurrently with his federal sentence. This appeal followed.

D E C I S I O N

I.

Carothers contends that the district court abused its discretion in denying his motion to withdraw his guilty plea, claiming that he was denied his "right to allocution" before sentencing. Allowing a defendant to withdraw a guilty plea before sentencing is within the sound discretion of the district court; this court will not reverse that decision absent an abuse of discretion. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

The rules of criminal procedure provide that

[b]efore pronouncing sentence, the court shall give the prosecutor and defense counsel an opportunity to make a statement with respect to any matter relevant to the question of sentence including a recommendation as to sentence. The court shall also address the defendant personally and ask if the defendant wishes to make a statement in the defendant's own behalf and to present any information before sentence.

Minn. R. Crim. P. 27.03, subd. 3. The record unequivocally shows that the district court allowed both Carothers and his counsel the opportunity to present information on possible mitigating circumstances before sentencing him. At the pre-sentencing hearing the district court indicated that, notwithstanding its intent to issue a written order before sentencing, Carothers would still have an opportunity to speak in mitigation of his sentence at sentencing. Further, although the court's October 30 order indicated that it was "notice of the sentence to be imposed, i.e., 239 months," the court explained at sentencing that it issued the order so that Carothers and his counsel would have the opportunity to argue intelligently if they exercised Carothers's right to make a statement or present information to the court before sentencing. The district court then allowed both Carothers and his attorney to present arguments regarding mitigating circumstances before actually sentencing him. We conclude the district court did not deny Carothers his rights under Minn. R. Crim. P. 27.03, subd. 3, and therefore did not abuse its discretion in denying Carothers's motion to withdraw his guilty plea on that ground.

II.

Carothers argues that the district court abused its discretion in imposing a sentence of 239 months, which is a 51% departure from the presumptive sentence of 158 months and one month less than the statutory maximum for the offense. See Minn. Stat. § 609.211 (Supp. 1997). "The trial court is in [the] best position to weigh the various sentencing options and therefore is granted broad discretion in sentencing." Massey v. State, 352 N.W.2d 487, 489 (Minn. App. 1984) (citations omitted), review denied (Minn. Oct. 16, 1984). This court will not reverse the district court's decision to depart from a presumptive sentence absent an abuse of discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). Further, this court will affirm an upward departure when the defendant's conduct is significantly more serious than that typically involved in the commission of the crime. State v. Gist, 358 N.W.2d 664, 667 (Minn. 1984).

Carothers contends that the district court improperly considered as a basis for its upward departure evidence that points to his guilt of attempted first-degree murder. See State v. Cox, 343 N.W.2d 641, 644 (Minn. 1984) (stating that sentencing court cannot base upward durational departure on evidence of greater charge dismissed as part of plea agreement). But Carothers was charged with attempted first-degree murder in violation of Minn. Stat. §§ 609.17, subd. 1, 609.185, subd. 4 (1996), which provides that a person is guilty of first-degree murder if he

causes the death of a peace officer or a guard employed at a Minnesota state or local correctional facility, with intent to effect the death of that person or another, while the peace officer or guard is engaged in the performance of official duties[.]

The district court here relied on the extent of Sergeant Zaruba's injuries and the particular callousness of Carothers's conduct as factors warranting an upward durational departure. Neither of these factors is an element of the crime of attempted first-degree murder of a peace officer. We conclude that the district court did not abuse its discretion in considering these factors.

To commit first-degree assault, a defendant must inflict great bodily harm on a victim. Minn. Stat. § 609.221 (1996). Great bodily harm is

bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.

Minn. Stat. § 609.02, subd. 8 (1996). This court has held that although

the infliction of great bodily harm is an element of first-degree assault, "the injury [inflicted] nonetheless can be considered as an aggravating factor in this case because of its serious and permanent nature."

State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987) (quoting State v. Van Gorden, 326 N.W.2d 633, 634 (Minn. 1982)), review denied (Minn. Sept. 29, 1987). In Felix, this court concluded that in upwardly departing from the presumptive sentence on a first-degree assault conviction, the district court properly considered the victim's injuries as an aggravating factor because all of the factors defining great bodily harm were present.

Similarly, the district court here found that "all three" of the factors defining great bodily harm were present.[1] The record shows that (1) Carothers's conduct created a high probability of Sergeant Zaruba's death; (2) Sergeant Zaruba suffered serious permanent disfigurement in that he underwent extensive plastic surgery because of severe facial injuries, including surgery to reattach his left earlobe, and lost a patch of his hair; and (3) Sergeant Zaruba suffered a permanent or protracted loss or impairment of the function of a bodily member or organ in that he continued to suffer from numbness in his back and legs, weakness in his left leg, and problems with short-term memory and irritability.

This district court also found that Carothers's conduct was particularly callous and therefore supported an upward departure in sentencing. Under the Minnesota Sentencing Guidelines, if "[t]he victim was treated with particular cruelty for which the individual offender should be held responsible," that is an aggravating factor that a sentencing court may use as a basis for an upward departure. Minn. Sent. Guidelines II.D.2.b.(2). The record here shows that Carothers (1) observed Sergeant Zaruba standing in front of his vehicle; (2) accelerated his car and drove it directly at Sergeant Zaruba; (3) dragged Sergeant Zaruba for a short distance after he hit him and then ran over him; and (4) did not stop after hitting Sergeant Zaruba but instead attempted to leave the scene of the accident.

We conclude that the district court did not abuse its discretion in basing an upward sentencing departure on the extent of Sergeant Zaruba's injuries and Carothers's callousness. We affirm Carothers's sentence of 239 months.

Affirmed.

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The district court's order of October 30, 1997, does not address the catch-all "other serious bodily harm," but we find that immaterial to our analysis and note that, in any event, the record would support a finding of "other serious bodily harm."