Hennepin County District Court File No. 27-CR-06-061932
Cathryn Middlebrook, Interim Chief Appellate Public Defender, St. Paul, Minnesota (for appellant).
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County Attorney, Minneapolis, Minnesota (for respondent).
Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and Bjorkman, Judge.
Appellant challenges his sentence for fourth-degree criminal sexual conduct, arguing that the upward durational departure was invalid because (1) the departure was based solely on the agreement of the parties, (2) the district court did not independently assess or make departure findings based on the victim's injuries, and (3) injury to the victim is not a proper ground for a departure because it is an uncharged offense or element of the offense. We affirm.
On September 7, 2006, appellant Christopher Tate followed A.E. into an alley, pushed her against a building, and sexually assaulted her by touching her breasts, buttocks, and vagina, and attempted to penetrate her with his penis. The attack left A.E. with scrapes, cuts, and bruises to her arms, leg, and back. Tate was charged with second-degree criminal sexual conduct and attempted first-degree criminal sexual conduct. He pleaded guilty to an amended count of fourth-degree criminal sexual conduct under Minn. Stat. § 609.345, subd. 1(c) (2006), and agreed to a 42-month sentence, an upward durational departure.
At the guilty-plea hearing, Tate agreed that the victim's injuries are an aggravating factor that sustains the upward departure, and waived his right to a trial on that factor:
DEFENSE COUNSEL: Now, you also understand that you personally would have a right to require the state of Minnesota to prove—well, we are agreeing that the aggravating factor for that upward departure is the injury to the victim in this case which was essentially scratches, correct?
DEFENSE COUNSEL: Now, you would have a right to have that aggravating factor proved beyond a reasonable doubt to a jury, ...