State of Minnesota, Respondent, vs. Allan Kingsley Kerr, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-03-391

 

 

State of Minnesota,

Respondent,

 

vs.

 

Allan Kingsley Kerr,

Appellant.

 

 

Filed August 26, 2003

Affirmed

Robert H. Schumacher, Judge

 

Anoka County District Court

File No. K902938

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)

 

John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414

 

 

            Considered and decided by Lansing, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Allan Kingsley Kerr pleaded guilty to first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subds. 1(c), (e), (i) (2000) and kidnapping in violation of Minn. Stat. § 609.25, subds. 1(2), 2(2) (2000).  He challenges his consecutive sentence of 144 months for first-degree criminal sexual conduct and 48 months for kidnapping, arguing the sentence is excessive.  We affirm.

FACTS

On the evening of January 19, 2002, Kerr grabbed a 13-year-old female off the street and shoved her into his black pick-up truck.  Kerr drove to Carlos Avery Wildlife Management Area where he punched, choked, and forcibly penetrated the victim sexually.   Following the sexual assault, Kerr abandoned the victim in Carlos Avery.  The victim ran to the nearest home and called the police.  About a week later, the police arrested Kerr.  The state charged Kerr with two counts of first-degree criminal sexual conduct and two counts of kidnapping.  In September 2002, Kerr pleaded guilty to one count of first-degree criminal sexual conduct and one count of kidnapping. 

At the sentencing hearing, the trial court determined that consecutive sentences were appropriate based on the legislative intent in crafting the punishment for criminal sexual conduct and kidnapping, concerns about public safety, and what is fair punishment for the crimes Kerr committed.  The court sentenced Kerr to the mandatory minimum sentence of 144 months for first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 2(b) 2000, and 48 months for kidnapping to be served consecutively.  The trial court also imposed a five-year conditional release period.

D E C I S I O N

Kerr argues his actions were typical first-degree criminal sexual misconduct and because the legislature drastically increased the minimum sentence for first-time adult sex offenders, a consecutive sentence for kidnapping is excessive.  We disagree.

A trial court's decision regarding permissive, consecutive sentences will not be disturbed unless the resulting sentence unfairly exaggerates the criminality of the defendant's conduct.  State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998).  The legislature, however, retains the power to define the level of punishment appropriate for criminal acts.  State v. Osterloh, 275 N.W.2d 578 (Minn. 1978) (stating "the legislature, having the power to define what acts constitute criminal conduct, necessarily retains the power to define the punishment for such acts"). 

            The legislature has defined consecutive sentences as appropriate punishment when kidnapping and sexual assault are combined in one course of conduct.  First, the sentencing guidelines specifically allow consecutive sentencing in cases involving a current felony conviction for "Criminal Sexual Conduct in the First through Fourth degrees with force or violence as defined in Minn. Stat. § 609.342 through 609.345."  Minn. Sent. Guidelines II.F.2.  Further, Minnesota law provides that "conviction of the crime of kidnapping is not a bar to * * * punishment for any other crime committed during the time of the kidnapping."  Minn. Stat. § 609.251 (2000).  This language

 expressly permit[s] consecutive sentences to be imposed for multiple offenses against the same victim in a single behavioral incident where one of the offenses is kidnapping.

 

 State v. Swanson, 498 N.W.2d 435, 440 (Minn. 1993). 

            Furthermore, in the same year that the legislature "drastically increased" the minimum sentence for first-time adult sex offenders, it also amended Minn. Stat. § 609.035 as follows:

[A] prosecution or conviction for committing a violation of sections 609.342 to 609.345 with force or violence is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.  If an offender is punished for more than one crime as authorized by this subdivision and the court imposes consecutive sentences for the crimes, the consecutive sentences are not a departure from the sentencing guidelines.   

 

Minn. Stat. § 609.035, subd. 6 (2000). 

            In this case, the trial court sentenced Kerr to 144 months in prison for committing first-degree criminal sexual conduct and to a permissive consecutive sentence of 48 months for kidnapping.  This sentence is not a departure from the sentencing guidelines so the trial court need not cite aggravating factors.  Minn. Stat. § 609.035, subd. 6 (2000).  The sentence is also consistent with the level of punishment the legislature has defined for these acts.  This court sees no basis to find a sentence that is within the sentencing guidelines' permissible range and consistent with the legislative definition of appropriate punishment, an unfair exaggeration of criminal conduct.

We do not consider Kerr's pro se supplemental brief because he does not intelligibly state which legal issues he seeks to raise.  See State v. Bowles, 530 N.W.2d 521, 535 n.1 (Minn. 1995).  Even if the issues could be determined with some certainty, the brief contains no argument or citation to legal authority, therefore the issues are deemed to be waived.  State v. Krosch, 642 N.W.2d  713, 719 (Minn. 2002). 

Affirmed