State of Minnesota, Respondent, vs. Victor Lee Cotton, 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This opinion will be unpublished and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

A03-1355

 

State of Minnesota,

Respondent,

 

vs.

 

Victor Lee Cotton,

Appellant.

 

Filed June 29, 2004

Affirmed

Randall, Judge

 

Ramsey County District Court

File No. K8-03-178

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101, and

 

Susan Gaertner, Ramsey County Attorney, Mark Lystig, Assistant Ramsey County Attorney, Melissa Saterbak, Certified Student Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN  55102 (for respondent)

 

John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Ave. SW, Suite 425, Minneapolis, MN  55414  (for appellant)

 

 

            Considered and decided by, Randall, Presiding Judge, Kalitowski, Judge, and Wright, Judge

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

On appeal from a sentence imposed for second-degree aggravated robbery, appellant argues that the district court abused its discretion in imposing a double upward departure under the career-offender statute.  Appellant claims (1) he is not a danger to public safety, given that none of his prior crimes involved the use of an actual weapon or victim injury.  Thus, he argues he does not meet the criteria for a "dangerous offender" under the statute, and (2) appellant argues that even if he does meet the statutory criteria, the 120-month sentence is excessive.  We affirm.

FACTS

            On January 14, 2003, appellant entered Christensen's Bar in St. Paul, sat down, and ordered a beer.  While sitting, appellant observed a bar employee preparing the payroll.  After a few minutes of drinking and thinking, appellant suddenly ran behind the bar, pushed the employee into a wall, and grabbed the stack of envelopes and loose cash from the bar.  As he grabbed the money, appellant said, "Don't follow me.  I have a gun."  Appellant ran from the bar and was subsequently apprehended and arrested a short distance away. 

            Appellant pleaded guilty to second-degree aggravated robbery on March 19, 2003.  Shortly thereafter, the state filed a motion requesting that appellant be sentenced as a dangerous offender under Minn. Stat. § 609.1095, subd. 2 (2002).  The state requested a double upward durational departure from the presumptive sentence (60 months) for second-degree aggravated robbery to a sentence of 120 months.  The district court found that appellant was 38 years old and had seven prior convictions of either simple or aggravated robbery.  Due to his high frequency and long history of criminal activity, the district court found appellant to be a danger to public safety as defined by Minn. Stat. § 609.1095, subd. 2.  The district court then granted the state's motion and sentenced appellant to a double upward durational departure of 120 months.  This appeal followed.       

                                                                 D E C I S I O N

I.          Danger to Public Safety

            Appellant argues that the district court erred when it found him to be a danger to public safety and sentenced him to an upward double departure of 120 months. 

An upward departure is within the discretion of the district court only if substantial and compelling aggravating circumstances are present.  State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).  Substantial and compelling circumstances arise when the "defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question."  State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984).  If the record supports the district court's findings of substantial and compelling circumstances, a reviewing court will uphold the sentence unless it strongly feels that the sentence is disproportionate to the offense.  State v. Schroeder, 401 N.W.2d 671, 674 (Minn. App. 1987), review denied (Minn. Apr. 23, 1987).  "When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure."  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).  "If no reasons supporting the departure are stated on the record, the departure is not allowed; if reasons are stated, but are improper or inadequate, this court will affirm the departure nonetheless if the record contains valid and sufficient reasons to support the departure."  State v. Sanchez-Sanchez, 654 N.W.2d 690, 694 (Minn. App. 2002). 

A district court may increase sentences for dangerous offenders if the following four criteria are satisfied:  (1) the offender's current conviction is for a violent crime, (2) the offender was at least 18 years old at the time of the crime, (3) the court has determined on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes, and (4) the court finds the offender is a danger to public safety and specifies on the record the basis for that finding.  Minn. Stat. § 609.1095, subd. 2 (2002).  

Appellant argues that his sentence should be reduced to the presumptive guideline term of 60 months because he does not meet the statutory requirements of a dangerous offender.  Appellant concedes that his current conviction is for a violent crime, that he was at least 18 at the time of the crime, and that he has two or more previous convictions for statutorily designated violent crimes.  However, appellant contends that he is not a danger to public safety because none of his prior convictions involved the use of a firearm or weapon and none of the victims was physically harmed.  Appellant argues that although these convictions involved violent crimes, this alone does not make him a danger to public safety.  Appellant argues it is necessary for the court to examine each offense separately and then determine whether he is a danger to the public.

We understand appellant's argument, but in light of his seven previous robberies, we disagree.  Under Minn. Stat. § 609.1095, subd. 2(2)(i), (ii) (2002), a court may find an individual to be a danger to public safety based on the record, including "the offender's past criminal behavior, such as the offender's high frequency rate of criminal activity . . . or [his] long involvement in criminal activity," or "the fact that the present offense of conviction involved an aggravating factor." (Emphasis added.)  Nowhere does the statute require the court to examine each offense separately to determine whether an individual is a danger to public safety.  The fact that an offender has a high frequency rate of involvement in criminal activity can be enough.  See State v. Branson, 529 N.W.2d 1, 4 (Minn. App. 1995) (holding that appellant was a danger to public safety where he had been involved in criminal activity for 18 years and incarcerated much of that time), review denied (Minn. Apr. 18, 1995). 

            Here, appellant did not use an actual weapon during the commission of his crimes, nor were there any actual physical injuries.  But this does not bar a court from considering the dangerous offender statute.  The district court determined that appellant was a danger to public safety because of his high rate of crime and his long history of criminal activity.  Appellant has eight prior adult convictions over a span of 18 years: four for aggravated robbery, three for simple robbery, and one for attempted escape.  This conviction is appellant's ninth.  Appellant admits that for most of the intervening time between these convictions, he was in custody.  According to the pre-sentence investigation report, since May 1986, appellant has either been incarcerated, on parole, or on probation.  In fact, he was on supervised release at the time he committed this offense.  Thus, appellant's criminal-history score of nine was earned over a relatively short time while on the streets.  Appellant reflects an inability to steer away from criminal habits and environment.  We agree that appellant's conduct on this last offense was not significantly more serious than that typically involved in the commission of second-degree aggravated robbery.  However, based on appellant's total criminal record, it was within the district court's discretion to sentence appellant to the upward double departure based on his criminal-history score and Minn. Stat. § 609.1095, subd. 2.             

II.        Excessive and Unreasonable Departure

              Next, appellant argues that even if the district court properly determined that he is a danger to public safety, the upward double departure is still excessive and unreasonable.  Relying on Neal v. State, 658 N.W.2d 536, 546 (Minn. 2003), where the court stressed the underlying policy of the Minnesota Sentencing Guidelines, appellant argues that the dangerous-offender statute should be applied so that sentencing standards are rational, consistent, and sentences are proportional to the severity of the offence and the offender's criminal history.  Appellant argues that his departure is excessive and unreasonable because he used no actual weapons in committing his crimes, nor was anyone physically injured.  Additionally, he points out that the probation officer in his pre-sentence investigation report recommended the guidelines sentence.

            In Neal, the defendant was convicted of one count of kidnapping and two counts of first-degree aggravated robbery.  658 N.W.2d at 540.  Using the dangerous-offender statute, Minn. Stat. § 609.1095, subd. 2 (2002), the district court sentenced the defendant to an upward double durational departure for his first-degree aggravated robbery and to the statutory maximum, which is more than four times the presumptive sentence for the kidnapping.  Id.  In addition to the four criteria of the dangerous-offender statute, the Neal court also relied on aggravating factors.  Id. at 541-42.  On appeal, like appellant here, the defendant argued that his sentence was excessive and unreasonable.  Id. at 546.  In making its decision, the Minnesota Supreme Court compared the defendant's sentencing to departures imposed in similar cases.  Id. at 547-48.  The comparison showed that in other cases with facts more aggravating than in Neal, the defendant received smaller upward departures or no departure at all.  Id. at 548.  Based on these comparisons, the court held that the sentence was "not commensurate with the gravity of the crime and therefore is excessive and unreasonable."  Id.  

            Unlike Neal, the district court here sentenced appellant to ten years, rather than the statutory maximum of 15 years.  Minn. Stat. § 609.1095, subd. 2, gives the district court the discretion to depart from the presumptive sentence based upon the offender's criminal history or aggravating factors.  The terms of this statute do not require the court to find both severe and aggravating factors before imposing the upward departure.  See Neal, 658 N.W.2d at 545 (stating that departures under Minn. Stat. § 609.1095, subd. 2, are justified on the basis of the offender's criminal history, not aggravating factors). 

            The district court based its departure on appellant's criminal history and his high frequency of criminal activity.  The fact that no one was injured or that appellant never used a gun are points in appellant's favor.   Something less than a double upward durational departure would not have been an abuse of discretion.  But having said that, in view of appellant's criminal-history score, the double upward durational departure he received was not an abuse of discretion under Minn. Stat. § 609.1095, subd. 2. 

Affirmed