Stearns County District Court File No. 73-CR-09-9131
Lori Swanson, Attorney General, St. Paul, Minnesota; and Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, St. Cloud, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota; and Bradford W. Colbert, St. Paul, Minnesota (for respondent)
Considered and decided by Ross, Presiding Judge; Peterson, Judge; and Smith, Judge.
On appeal following this court's remand for resentencing, appellant argues that the district court erred in departing from the presumptive sentence based on the fact that a child was present during a burglary. We affirm.
Appellant Corey Dell Andrews and another man broke into the victim's home early one morning. The victim, whose nine-month-old son was sleeping next to her, awakened to find the two men standing near her bed. The men bound the victim's hands, arms, and legs with duct tape. The victim's son had also awakened and was trying to get off the bed, and the men placed him between the victim's duct-taped arms. The men then rifled through the house, stole two cell phones and a wallet, and left.
Appellant was charged with multiple crimes. He waived his right to a jury trial, and the case was tried to the court. The district court found appellant not guilty of (1) first-degree aggravated robbery, (2) first-degree burglary (possession of a dangerous weapon), (3) first-degree possession of a dangerous weapon, (4) second-degree assault with a dangerous weapon against the victim, (5) second-degree assault with a dangerous weapon against the son, and (6) felon in possession of a firearm. The court found appellant guilty of (1) simple robbery, a lesser-included offense of first-degree aggravated robbery; (2) first-degree burglary (assault of a person); (3) fifth-degree assault against the victim, a lesser-included offense of second-degree assault with a dangerous weapon; and (4) false imprisonment.
The district court granted the state's motion for an aggravated sentence and imposed concurrent sentences of 150 months for first-degree burglary, a 57-month upward departure; 66 months for simple robbery, a 27-month upward departure; and 17 months for false imprisonment. Appellant challenged his sentence on appeal. This court concluded that invasion of the victim's zone of privacy was an improper fact to rely on to support the durational departure and remanded for resentencing because it was unclear whether the district court would have imposed the same sentences if it had relied only on the fact that the offenses were committed in the presence of a child. State v. Andrews, No. A11-194, 2012 WL 426576, at *4-5 (Minn.App. Feb. 13, 2012). On remand, based on the fact that a child was present, the district court resentenced appellant to concurrent terms of 126 months for first-degree burglary, a 33-month upward departure; 60 months for simple robbery, a 21-month upward departure; and 17 months for false imprisonment.
This appeal followed.
We review the district court's decision to depart from a presumptive sentence for an abuse of discretion. Tucker v. State, 799 N.W.2d 583, 585-86 (Minn. 2011). But we conduct a de novo assessment of the district court's decision as to "whether a valid departure ground exists, relying on the factual findings that ...