State of Minnesota, Respondent, vs. Michael Anthony Crea, Appellant.

may not be cited except as provided by

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

 STATE OF MINNESOTA

 IN COURT OF APPEALS

 C4-97-625

 CX-97-1181

State of Minnesota,

Respondent,

vs.

Robert William Anderson,

Appellant.

 Filed May 19, 1998

   Affirmed

 Willis, Judge

 Dissenting, Randall, Judge

Ramsey County District Court

File No. K6961499

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)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Willis, Judge, and Mulally, Judge*.

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

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

 WILLIS, Judge

Robert William Anderson appeals from the denial of his petition for postconviction relief, claiming that he was denied the right to effective assistance of counsel at trial, and from his sentence, a double durational departure, claiming it is not supported by substantial and compelling circumstances. We affirm.

FACTS

Anderson was charged with third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (1996) (engaging in sexual penetration with a person less than 16 years of age where the actor is more than 24 months older). At Anderson's arraignment, the district court appointed a public defender to represent him. Anderson later hired private counsel to represent him at trial.

The trial court directed that jury selection proceed as described in Minn. R. Crim. P. 26.02, subd. 4(3)(c), which provides a party with one opportunity, immediately after the questioning of each prospective juror, to exercise either a for-cause or a peremptory challenge. Anderson's counsel apparently understood that selection was being conducted using a two-stage method that would give him a later opportunity to exercise peremptory challenges. After Anderson's counsel questioned the fifth juror, the court realized he did not understand the procedure and explained that peremptory challenges were to be used at the time the jurors were questioned. Anderson's counsel exercised his first peremptory challenge against the fifth juror and subsequently used all of his peremptory challenges. The first four potential jurors questioned included a pediatric nurse who had been sexually abused when she was 13 years old and who frequently encountered child victims of sexual abuse in her job, as well as an attorney who had worked with law enforcement personnel and prosecutors. Anderson's counsel did not ask the court for permission to go back and strike any of the first four potential jurors, and they ultimately were all impaneled.

The jury found Anderson guilty, and he was sentenced to 76 months, double the presumptive guidelines term. Anderson appealed from the judgment of conviction, but on Anderson's motion this court dismissed the appeal and remanded for postconviction proceedings on the ineffective assistance of counsel issue. Anderson now appeals from the postconviction court's denial of relief and from the trial court's sentencing decision.

D E C I S I O N

 I. Ineffective Assistance of Counsel

This court reviews a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion.

 Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

Anderson argues that he was denied the right to effective assistance of counsel at trial because his lawyer's misunderstanding of the jury selection process impaired Anderson's right to exercise peremptory challenges against the first five jurors.[1]

Generally, a two-part test is applied to determine if a new trial should be granted on the ground of ineffective assistance of counsel. The defendant must prove that counsel's actions fell below an objective standard of reasonableness and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2065, 2068 (1984). If the appellant fails to prove prejudice, or "a reasonable probability the outcome would have been different," this court may dispose of an ineffective assistance of counsel claim without addressing the reasonableness of counsel's actions. Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997) (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069-70). Because we conclude that Anderson has failed to show prejudice, we do not address whether his lawyer's actions fell below an objective standard of reasonableness.

Anderson claims that he should not be required to prove prejudice because of the seriousness of defense counsel's error--the alleged impairment of his right to exercise peremptory challenges. But "peremptory challenges are not of constitutional dimension. They are a means to achieve the end of an impartial jury." Ross v. Oklahoma, 487 U.S. 81, 88, 108 S. Ct. 2273, 2278 (1988) (citations omitted), quoted in State v. Barlow, 541 N.W.2d 309, 311-12 (Minn. 1995). To justify a new trial, "the defendant must demonstrate the existence of actual bias or prejudice and a challenge for cause on completion of the voir dire." Barlow, 541 N.W.2d at 312.

Anderson does not claim that any impaneled juror was biased and argues that his conviction should be reversed without a showing of prejudice. He urges an extension of the reasoning in Alholm v. Wilt, 394 N.W.2d 488 (Minn. 1986), a civil case in which the supreme court reversed on the ground that the appellant's right to peremptory challenges had been impaired when the district court misapplied jury selection rules. The supreme court did not require a showing of prejudice, finding that demonstrating prejudice in that case would be "practically impossible." Id. at 493. The Alholm analysis has been limited to cases where a party is "prevented from ascertaining the composition of the jury prior to evidence presentation" because of the court's misapplication of procedural rules. Hunt v. Regents of University of Minnesota, 460 N.W.2d 28, 33-34 (Minn. 1990) (quoting Alholm at 493-94).

The supreme court's reasoning in Alholm has not been applied to the issue of peremptory challenges in a criminal case, and we decline to apply it here. As recently as 1995, the supreme court has confirmed its adherence to the rule that a criminal defendant must show actual juror bias or prejudice to be entitled to a new trial on the ground of the impairment of the right to exercise peremptory challenges. Barlow, 541 N.W.2d at 312. But even if the Alholm analysis were applicable here, we note that Anderson does not claim that the trial court misapplied procedural rules or that he was prevented from ascertaining the composition of the jury before presenting evidence.

The postconviction court did not abuse its discretion in denying Anderson's request for a new trial on the ground of ineffective assistance of counsel.

 II. Sentencing Departure

Anderson argues that no substantial or compelling reasons support the trial court's sentencing departure. The decision to depart from the sentencing guidelines rests within the trial court's discretion and will not be reversed absent an abuse of that discretion. State v. Lee, 494 N.W.2d 475, 482 (Minn. 1992). An upward departure will be upheld if substantial and compelling aggravating circumstances exist to justify the departure. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). Multiple forms of penetration alone may support an upward departure. State v. Mesich, 396 N.W.2d 46, 52 (Minn. App. 1986), review denied (Minn. Jan. 2, 1987).

The trial court sentenced Anderson to double the presumptive sentence, finding that the victim was subjected to multiple forms of penetration and to personal injury, neither of which is an element of the charged crime. The record shows that the victim was subjected to digital and penile penetration and suffered physically and emotionally after the incident. The trial court did not abuse its discretion in finding substantial and compelling reasons justifying the sentencing departure.

  Affirmed.

 Randall, Judge (dissenting).

I respectfully dissent. As the majority correctly sets out, Anderson's criminal defense attorney was unfamiliar with the procedure for exercising peremptory strikes, and, thus, the first four jurors were seated as if the defendant had no peremptory challenge to use for those four. A criminal defense attorney might have, on these facts, struck at least two of those jurors when defending a client accused of sexual penetration with a victim less than 16 years of age. Before Anderson's attorney understood the procedure, he passed on the third juror, who stated during voir dire that she had been sexually abused when she was thirteen, and that she frequently encountered child victims of sexual abuse in her job as a pediatric nurse. Anderson's attorney also passed on the fourth juror, an attorney who stated that at different times he had worked with law enforcement personnel and prosecutors. After the court explained the procedure to the defense attorney when he attempted to "pass for cause" the fifth juror, the attorney exercised his first peremptory strike.

The majority distinguishes Alholm v. Wilt, 394 N.W.2d 488 (Minn. 1986) by pointing out that here Anderson's criminal defense attorney, not the trial court, misapplied procedural rules. That does not give us a complete answer. Appellate courts in the past have reversed criminal convictions, and remanded for new trials, when there has been a misapplication of the rules, an error of law, or other serious breach of a citizen's right to a fair trial, when committed by, for instance, not just trial judges, but defense attorneys, prosecutors, jurors, and court personnel such as bailiffs. The trial court in this case did not err. Defense counsel did.

It is not that important who committed the error, but rather the seriousness of the error is important. Here, the privately retained criminal defense attorney did not know his right to exercise a peremptory at the conclusion of the questioning of that individual. He was under the complete misconception that he could exercise his five peremptory strikes at a later date.

The following conversation took place after the defense counsel questioned the fifth prospective juror:

The Judge: Wait a minute. Are you challenging?

Defense counsel: No, I'm not. I guess I was apparently under a different understanding of this process. I thought we were selecting the main jury.

The Judge: Do you want to use a peremptory challenge?

Defense counsel: I thought we were then going to use our peremptory challenges tomorrow morning.

The Judge: Well, you use peremptory at the time you question the prospective juror.

Defense counsel: That's what I didn't understand, because I wasn't necessarily passing to have the particular jurors selected. I thought that they were going to be part of a panel upon which the final -- the larger upon which the peremptory challenges were going to be exercised to reach the 14.

The record is clear, and both parties agree, that defense counsel passed on the first four jurors under the mistaken belief that he could strike them at a later date. The record is also clear that after the trial court informed the defense attorney of the procedure to be used, the defense attorney did not make a motion to request the right to back strike any of the first four seated jurors. We do not know what the court would have done faced with that motion, but a motion to back strike should have been made to at least give the defendant that issue for the record on appeal. It was not done.

The majority discusses the lack of "prejudice" shown by the defendant. I can only note that, on this particular set of facts, "prejudice" is not a helpful term. Much of the time, from a practical standpoint, we know that prejudice cannot be shown conclusively. With honesty we admit that it can only be inferred. Obviously Anderson cannot "show" prejudice, as our rules do not permit "a trial within a trial." We do not have a procedure whereby this same case, with the same witnesses and the same testimony, can be tried word for word to the same jury, except that on this second trial, Appellant is given a chance to exercise peremptory strikes on some or all of the first four jurors. With honesty I admit we have no idea what the outcome of the trial would have been had the defense attorney been knowledgeable about the use of peremptories. He may or may not have struck all of the first four, or none of the first four, or some of the first four. Then even if we magically found out that he would have accepted jurors one and two, but struck jurors three and four, we have no idea whatsoever what two jurors would have taken their place, or know how they would have voted.

But we do know the importance of jury selection. See State v. Davis, 504 N.W.2d 767, 770 (Minn. 1993) (discussing importance of peremptory challenges). In Davis, Justice Simonett elaborated at length on the importance of jury selections in criminal trials and the importance of the use of peremptory challenges:

The peremptory is needed, however, if the challenge for cause is denied by the court. It is needed also when there is legitimate concern for a juror's fairness but this concern is insufficient to be a challenge for cause. It happens often enough that a juror expresses doubt about being able to be fair, but then opposing counsel or the judge ostensibly "rehabilitates" the juror; in this problematic situation, the peremptory is useful. Also, without the peremptory, trial counsel may be deterred from asking probing questions on voir dire for concern that any hostility inadvertently raised could not be remedied by a peremptory strike.

In other words, the peremptory gives added assurance of an accurate verdict by "resolv[ing] doubts (up to a specified number) in favor of exclusion." The fact that some unbiased jurors may be excused in the process is an affordable price to pay for removing doubts about a particular juror's impartiality and competence, especially when the vote of one biased juror can make a critical difference.

 Davis, 504 N.W.2d at 770 (citations omitted) (emphasis added).

The majority notes that:

"'peremptory challenges are not a constitutional dimension. They are a means to achieve the end of an impartial jury.'"

 Ross v. Oklahoma, 487 U.S. 81, 88, 108 S. Ct. 2273, 2278 (1988), quoted in State v. Barlow, 541 N.W.2d 309, 311-12 (Minn. 1995).

I can only observe that a fair trial is a constitutional dimension. See U.S. Const. amend. VI (granting right to a fair trial); Minn. Const. art. I, § 6 (same). An impartial jury is part and parcel of a fair trial.

There are certain areas of law which do not rise to a "constitutional dimension." There are numerous cases where a violation of some rule, or some law or, another serious but less than constitutional error led to a reversal and remand for a new trial when all the appellate decisions of the 50 states and the federal system are looked at for as little as the past few years. In point of fact, the Bill of Rights and state and federal constitutions do not routinely create specific issues in every appeal. But the underlying notion of due process and a fair trial is present in every appeal.

The majority reasons that the Minnesota Supreme Court has not specifically applied Alholm, a civil case, to the issue of peremptory challenges in a criminal case. I suggest they did not specifically have to apply it. To me, if it is present in a civil case, then, as a truism, it has to be present in a criminal case. The right to due process and a fair trial in civil cases, although high, ranks below the right to due process and a fair trial in a criminal case where the constitutional issues are magnified. Thus, if Alholm dictates the importance to a party of ascertaining the composition of a jury in a civil case, then it certainly must speak to the importance to a party in a criminal case correctly ascertaining the composition of a jury.

As an appellate court of review, the majority of the cases we see on the issue of ineffective assistance of counsel come down to, upon close examination, disenchantment with the trial attorney's choice of tactics. Appeals on that basis have a tough row to hoe. It is difficult for me to find that a new trial is mandated because of alleged "ineffective assistance of counsel" when I am really asked to decide whether this objection should have been made, or that evidence should have been offered, or this witness should have been called, or that peremptory strike should have been used, etc., etc. Those decisions are best left to the trial attorney, who alone has the hour-to-hour, day-by-day feel for the strengths and weaknesses of his client's case, and the strengths and weaknesses of the state's case.

Criminal trials, each day, some days several times within each day, are a series of mini-battles, each with its own attack, counterattack, punch, counterpunch, presentation, rebuttal, etc. It is difficult to demand of a trial attorney, from just looking at a cold record, that he should have "done this" rather than "done that," or should not have "done this" but instead "done something else." But as an appellate court of review, I can expect a criminal defense attorney to understand the rudimentary tools that the state and federal constitutions, case law, and the Minnesota Rules of Criminal Procedure give him for the benefit of his client. For instance, I can demand that a defense attorney know how to exercise a peremptory; know that he has the right to insist on making both an opening statement and a closing argument; know that he has the right to a certain amount of disclosure from the state; and know that he has a right to demand the right of allocution at his client's sentencing. The waiver of any of these rights, or the downplaying of any of them, is a tactical decision. But at least the knowledge that they exist, to me, is a threshold requirement for taking a case into court. The issue here is not a tactical decision to strike a prospective juror or not strike one. The issue in this case is that the defense attorney did not know how to use a peremptory challenge on the first four jurors seated. The record is clear that the trial court pointed the proper procedure out to him during a voir dire of the fifth juror.

With the evidence in the record, I could be convinced that even if Anderson's counsel had known how to exercise peremptory strikes on some or all of the first four jurors, that the final verdict might not change. I could be convinced that the results of a new trial, if there were to be one, would not change the verdict. But I cannot be convinced that there should not be a new trial.

I respectfully dissent and would reverse and remand for a new trial. The integrity of the criminal justice system was pierced here. The people in this state have the right to expect that, whether court-appointed or privately-retained, when a criminal defense attorney steps into a felony case, he or she possess at least the basic knowledge of what substantive and procedural rules and rights are available to protect the client.

[ 1] Anderson's counsel in fact exercised a peremptory challenge against the fifth juror after the court explained the selection process to him.