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State v. Johnson

November 26, 2002

STATE OF MINNESOTA, RESPONDENT,
v.
TIJUAN DONTE JOHNSON, APPELLANT.



Sherburne County District Court File No. K3981617

Considered and decided by Hudson, Presiding Judge, Peterson, Judge, and Anderson, Judge.

SYLLABUS BY THE COURT

The prohibition against double sentencing found in Minn. Stat. § 609.035 cannot be waived by failing to raise the issue on direct appeal.

The district court may not impose multiple sentences when punishing a defendant for two criminal offenses arising out of a single behavioral incident and committed against the same victim.

The opinion of the court was delivered by: G. Barry Anderson, Judge

Affirmed in part and reversed in part

OPINION

Appellant challenges the district court's double durational upward sentencing departure from the presumptive sentence and the court's imposition of consecutive sentences for offenses committed during the same behavioral incident. Because the district court's findings were sufficient to depart from the presumptive sentence, we affirm this ruling. But we reverse and vacate appellant's sentence for second-degree assault because the district court impermissibly sentenced appellant for multiple offenses committed against the same victim during a single behavioral incident.

FACTS

On June 14, 1998, appellant sexually and physically assaulted a young woman, D.L., and physically assaulted the young woman's boyfriend, A.H., in a St. Cloud apartment. State v. Johnson, 617 N.W.2d 440, 441 (Minn. App. 2000). In a bench trial following a stipulation of facts pursuant to State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980), the district court convicted appellant of criminal sexual conduct in the first degree pursuant to Minn. Stat. § 609.342, subds. 1(c), 2 (1998), and assault in the second degree pursuant to Minn. Stat. § 609.222, subd. 1 (1998). The district court sentenced appellant to consecutive sentences of 172 and 36 months on the respective charges, for a total of 208 months. As support for the upward departure from the sentencing guidelines, the district court cited the following aggravating factors: (1) the female victim was treated with particular cruelty; (2) a gun was involved and used to threaten both victims; (3) the assault took place over a period of time in the victims' apartment; and (4) a theft was involved. Johnson, 617 N.W.2d at 442.

Appellant filed a direct appeal where the only issue before this court was whether the trial court erred in refusing to enforce a plea agreement from which the state withdrew before a plea of guilty was entered by appellant or accepted by the trial court. Id. at 441.

This court affirmed appellant's conviction. Id. Appellant then filed a petition for post-conviction relief, claiming that the district court improperly departed from the sentencing guidelines by imposing a 172-month sentence and that consecutive sentencing was not appropriate. The post-conviction court denied relief to appellant on both issues. The present appeal followed.

ISSUES

I. Did appellant's failure to assert his claims at the time of his direct appeal ...


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