State of Minnesota, Appellant, vs. William Joseph Bush, Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-98-567

State of Minnesota,
Respondent,

vs.

Mahmoud Ameen Shareef,
Appellant.

Filed November 3, 1998
Affirmed
Anderson, Judge

Pine County District Court
File No. K7-97-991

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

John K. Carlson, Pine County Attorney, Elizabeth I. Wrobel, Assistant County Attorney, Pine County Courthouse, 315 Sixth Street, Suite 8, Pine City, MN 55063 (for respondent)

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)

Considered and decided by Lansing, Presiding Judge, Anderson, Judge, and Thoreen, Judge.*

U N P U B L I S H E D   O P I N I O N

ANDERSON, Judge

Appellant pleaded guilty to charges of theft, kidnapping, and criminal vehicular operation. Appellant argues that the district court abused its discretion by imposing a sentence that is a double durational departure for the criminal vehicular operation and a departure with respect to consecutive service. Appellant argues that the circumstances were not severe enough to impose both departures. We affirm.

FACTS

On September 13, 1997, a customer stopped at a convenience store in Pine City to put gas in her van. When she went in to pay, her four children, ages eleven, nine, seven, and thirteen-months, remained in the van. Appellant Mahmoud Shareef jumped in the van and drove away. The nine-year-old jumped out before the van left the parking lot, but the other three children were still in the van. Appellant drove through a stop sign, traveling 50 miles per hour down the middle of Main Street, and forced cars to swerve to avoid him. A witness observed that the side door was open, and he could hear a child screaming. Appellant stopped the van between Pine City and Rush City to let the children out of the vehicle. The seven-year-old got out while the eleven-year-old girl tried to unbuckle the baby from the car seat, but was not able to do so before appellant started to drive away. Appellant drove off, apparently fearful of the customers who pulled their car in front of the van. A witness observed the van take off and drag the girl for 10 to 15 feet until she let go. The baby remained in his car seat and the van door remained open.

Appellant continued driving in a very erratic manner, at speeds of 90 to 95 miles per hour, nearly hitting another vehicle. As appellant entered Rush City, he did not slow down and struck and severely injured an eight-year-old boy as he was walking across the highway. Appellant did not brake or swerve although witnesses stated that appellant could easily have avoided hitting the boy. Appellant did not stop at the accident and ultimately lost control of the van one mile south of Rush City where he was apprehended.

Appellant admitted consuming three alcoholic beverages before stealing the van for the purpose of getting back to St. Paul. He admitted that he knew he was being followed and increased his speed to avoid being caught. Appellant stated that when he first took the van he did not know there were children inside; however, he admitted keeping the baby with him. He also admitted seeing the eight-year-old on the street before the accident and knowing that he struck the boy with the van. He also admitted he did not stop because the police were chasing him.

Appellant pleaded guilty to charges of theft, in violation of Minn. Stat. § 609.52 subd. 2(1) (Supp. 1997); kidnapping, in violation of Minn. Stat. § 609.25, subd. 1(2) (1996); and criminal vehicular operation resulting in great bodily harm, in violation of Minn. Stat. § 609.21 subd. 2(7) (1996). At the sentencing hearing, the district court judge rejected the sentence cap in a plea agreement. The court stayed the theft sentence and sentenced appellant to consecutive sentences of 58 months for kidnapping and 36 months, a double durational departure, for criminal vehicular operation. Appellant declined an opportunity to withdraw his plea.

D E C I S I O N

A decision to depart from sentencing guidelines rests within the trial court's discretion and will not be reversed absent an abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). If the court has stated on the record the reasons for the departure, and if those reasons justify it, departure will be allowed. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

"Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the Sentencing Guidelines maximum presumptive sentence duration." State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988). Severe aggravating circumstances, however, may justify a sentence greater than double the presumptive sentence. Id.

At issue in this case is whether the court abused its discretion by imposing both a double durational sentence along with a consecutive sentence departure.(1) While admitting that some departure is justified here, appellant argues that the circumstances present are not severe enough to warrant both a durational departure and a departure with respect to consecutive sentences. We disagree.

Consecutive sentencing may be combined with a double durational departure when there are severe aggravating circumstances. Rairdon v. State, 557 N.W.2d 318, 327 (Minn. 1996). The determination of whether severe aggravating circumstances are present "must be based on [the appellate court's] collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts." Id. (quoting State v. Norton, 328 N.W.2d 142, 146-47 (Minn. 1982)).

The district court provided several reasons why a durational departure and consecutive sentence departure are appropriate here. The reasons include: (1) that there was a manifest lack of necessity for appellant's conduct; (2) that the conduct involved in the criminal vehicular operation is significantly more egregious than that involved in the usual criminal vehicular operation; (3) that appellant's conduct endangered the lives of many people including the baby in the van; and (4) that appellant has failed to reform his conduct after a number of opportunities.

Generally, in determining whether to depart in sentencing, a trial court must decide "whether the * * * conduct was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). The district court recognized that there was nothing ordinary about this case. Had the district court sentenced appellant on kidnapping alone, a double durational departure would be 116 months, which is longer than the 94 month sentence appellant received.

The aggravating circumstances in this case are severe. See State v. Anderson, 361 N.W.2d 896, 899 (Minn. App. 1985) (recognizing that appellant's conduct was severely aggravating because he drove while intoxicated, at excessive rates of speed, ran red light, collided with car, killing driver and seriously injuring passenger, did not stop for quarter of mile, and attempted to shift blame to his passenger). Unlike the typical offense of criminal vehicular operation, which usually involves negligent or gross negligent conduct, appellant acted intentionally. As appellant approached Rush City, he intentionally drove rapidly without considering danger to bystanders. Appellant's purpose in driving so fast and reckless was to avoid being caught by the police. Additionally, appellant's conduct at the time he struck the eight-year-old boy was voluntary and intentional. He admitted that he saw the boy but took no action to avoid hitting him. Appellant also intentionally placed the infant in harm's way by speeding away with the door open.

The reasons provided by the district court demonstrate severe aggravating factors that justify both a durational departure and a consecutive sentence for the criminal vehicular operation. Therefore, the district court did not abuse its discretion by imposing both departures.

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. We assume, for purposes of this opinion, that the consecutive sentence was a departure. As respondent correctly argues, appellant's consecutive sentence for criminal vehicular operation would not have been a departure prior to the August 1, 1996, amendments. Under the former version, multiple consecutive sentences were permissive when an offender was:

convicted of multiple current felony convictions for crimes against different persons, and when the sentence for the most severe current conviction is executed according to the guidelines.

Minnesota Sentencing Guidelines II.F. (pre-1996 version); State v. Wallace, 327 N.W.2d 85, 87 (Minn. 1982). With the amendments, the guidelines became more restrictive with the requirement that "[c]onsecutive sentences are permissive * * * only when the presumptive disposition for the current offense(s) is commitment to the Commissioner of Corrections as determined by the procedure in section II.C." See Minnesota Sentencing Guidelines II.F. (current version). Although the kidnapping conviction carried a presumptive executed sentence, the criminal vehicular operation conviction did not.