Ramsey County District Court File No. K3-03-864.
Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Wright, Judge.
When sentencing on multiple counts, the district court may impose permissive consecutive sentences based on a judicial finding that the offenses are "crimes against persons" without violating the defendant's right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).
The opinion of the court was delivered by: Toussaint, Chief Judge
Affirmed in part and reversed in part
This appeal is from sentences imposed on two counts of first-degree criminal sexual conduct committed in violation of Minn. Stat. § 609.342, subd. 1(g) (2002). The appeal has been remanded to this court for reconsideration in light of Blakely v. Washington, 124 S.Ct. 2531 (2004). We affirm in part and reverse in part.
Appellant William Senske was charged with two counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (2002) (sexual penetration of a child under the age of 13 by a person more than 36 months older than the child). Senske agreed to plead guilty to an amended complaint alleging two violations of Minn. Stat. § 609.342, subd. 1(g) (2002) (sexual penetration of a child under the age of 16 with whom the actor has a "significant relationship"). There was no agreement as to sentencing, but the amendment of the complaint allowed the court to consider staying the sentence if doing so was in the best interests of the victims or the family and if appellant was amenable to treatment. See Minn. Stat. § 609.342, subd. 3 (2002).
At the guilty-plea hearing, Senske admitted that he committed multiple acts of sexual contact and penetration with K.L., his stepdaughter. He also admitted there were multiple incidents of sexual conduct and penetration with J.L., Senske's son. Finally, he admitted blindfolding J.L. during some of the acts.
At sentencing, following the recommendations of the state, the pre-sentence investigator, and a probation officer who had met with Senske for a sex offender assessment, the district court determined that Senske's sentence should not be stayed, finding that he needed the kind of intensive sex offender treatment found only in prison. The court also determined that Senske's offenses warranted an upward durational departure. As aggravating factors, the court cited the psychological injury to the children, vulnerability due to age, Senske's planning and manipulation (which included blindfolding the children, posing them, and requiring them to have sex with each other), his threats to kill them or other family members if they reported the abuse, his abuse of a position of trust, and the multiple incidents of abuse. The court then imposed consecutive sentences of 216 months for each count, representing 50-percent upward durational departures from the presumptive sentences. The court noted that consecutive sentencing was permissive because both sexual offenses were "crimes against persons." See Minn. Sent. Guidelines II.F.2.
On appeal, Senske initially argued that some of the aggravating factors cited by the district court were improper because they were elements of the two offenses. This court rejected that argument and affirmed the departures. State v. Senske, No. A03-1677 (Minn. App. June 29, 2004), opinion vacated, remanded (Minn. Aug. 25, 2004). The supreme court subsequently granted Senske's petition for further review, vacated this court's initial opinion, and remanded for reconsideration in light of Blakely v. Washington, 124 S.Ct. 2531 (2004).
1. Do the upward durational departures imposed violate appellant's right to a ...