                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0100

                           Ronald James Kettle, petitioner,
                                    Appellant,

                                         vs.

                                 State of Minnesota,
                                    Respondent.

                                Filed August 11, 2014
                                      Affirmed
                                 Cleary, Chief Judge

                            Beltrami County District Court
                             File No. 04-K5-05-000855


Cathryn Middlebrook, Chief Appellate Public Defender, Susan Andrews, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Timothy R. Faver, Beltrami County Attorney, Bemidji, Minnesota (for respondent)


      Considered and decided by Cleary, Chief Judge; Larkin, Judge; and Klaphake,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

CLEARY, Chief Judge

      Appellant challenges a district court order denying his motion under Minn. R.

Crim. P. 27.03, subd. 9, to correct his 2007 sentence for second-degree felony murder of

his mother. He argues that the record does not support the district court’s reasons for

departing from the presumptive sentence under the Minnesota Sentencing Guidelines and

that his 220-month sentence therefore is not authorized by law and should be reduced to

165 months. We affirm.

                                        FACTS

      On June 5, 2005, appellant Ronald James Kettle appeared at the Beltrami County

Law Enforcement Center and reported that he had killed his mother H.B. During an

interview, appellant stated that he had been doing drugs, woke up next to H.B.’s body,

and believed that he had killed her with a kitchen knife. Police officers went to H.B.’s

apartment and discovered her body, a large amount of blood throughout the apartment,

and blood smears that appeared to have been partially cleaned up. An autopsy revealed

numerous blunt-force and sharp-force injuries, extensive hemorrhaging of the brain, and

multiple rib fractures. The medical examiner determined that H.B. died from blunt-force

trauma to the face and head. Appellant was subsequently charged with second-degree

intentional murder and second-degree felony murder. The state filed a notice that it was

seeking an upward durational departure from the sentencing guidelines based on three

aggravating factors: (1) H.B. was treated with particular cruelty for which appellant




                                           2
should be held responsible, (2) the offense occurred within H.B.’s zone of privacy, and

(3) appellant violated his position of trust with H.B.

       At a hearing on January 10, 2007, appellant pleaded guilty to second-degree

felony murder resulting from assault, and the state agreed to dismiss the charge of

second-degree intentional murder. Appellant waived his right to have a jury decide

aggravating sentencing factors and permitted those factors to be determined by the

district court.   Appellant stated that he had been residing in his “elderly” mother’s

apartment for approximately a year and a half on the day of the murder and that he

“would help her with her medicine, apply her medicine into her eyes and that sort of

thing.” He also stated that he had been “helping her out around her house,” but then

clarified that “she did [household chores] herself. She didn’t need help.” He claimed

that he had no memory of the murder or of going to the police station and confessing to

killing H.B., but he stated that he believed that he was guilty and would have been found

guilty by a jury “based upon the information contained in the complaint and all of the

disclosure materials, police reports, statements, medical reports, all of that.”

       The sentencing hearing was held on February 13, 2007. The state requested that

appellant receive a sentence of 220 months, a durational departure from the presumptive

guideline sentence of 165 months. As the basis for departure, the state argued that the

offense occurred within H.B.’s zone of privacy of her home and that appellant violated

his position of trust with H.B. because appellant “was living with his mother, and as an

adult child had a responsibility for care of his elderly mother.” The state also argued that

H.B. was treated with particular cruelty, resting this argument on the extent of H.B.’s


                                              3
injuries and her resulting death. Appellant’s counsel argued that aggravating factors were

not present and requested that appellant receive the presumptive guideline sentence. The

district court determined that the state had proven the aggravating factor of violation of a

position of trust, stating “[H.B.], a 70 some year old mother living with her son, who is

currently 46 years of age, at that point in time there was a position of trust. And clearly

when you review the information provided, this crime does violate that position of trust.”

The district court also determined that the state had proven the aggravating factor of

particular cruelty, stating that “[i]n reviewing the pictures [of the crime scene] it is clear

that this is a crime that was committed with particular cruelty.” Appellant was sentenced

to 220 months, and he did not file a direct appeal of his sentence or initiate

postconviction proceedings.

       On June 14, 2013, appellant filed a motion under Minn. R. Crim. P. 27.03, subd. 9,

for correction of his sentence to 165 months. He claimed that his 220-month sentence is

unlawful because the record does not support a finding of aggravating factors. Following

a hearing, the district court issued an order denying the motion. The district court held

that the upward durational departure was warranted because appellant violated a position

of trust with H.B. in that he lived with his elderly mother and assisted her with medical

needs, she “had every reason for placing substantial trust in [appellant],” and he abused

that trust by committing a crime against her.        The district court also held that the

departure was warranted because appellant treated H.B. with particular cruelty in that

“[t]he injuries in this matter were a gratuitous infliction of pain and cruelty above and




                                              4
beyond the kind usually associated with the commission of second degree felony

murder.” This appeal followed.

                                     DECISION

       “The court may at any time correct a sentence not authorized by law.” Minn. R.

Crim. P. 27.03, subd. 9; see also Washington v. State, 845 N.W.2d 205, 210 (Minn. App.

2014) (stating that, although the text of rule 27.03, subdivision 9, authorizes district

courts to correct sentences sua sponte, courts have not prevented parties from invoking

the rule by motion). “On appeal from the district court’s denial of a rule 27.03 motion,

this court will not reevaluate a sentence if the [district] court’s discretion has been

properly exercised and the sentence is authorized by law.”         Anderson v. State, 794

N.W.2d 137, 139 (Minn. App. 2011) (alteration in original) (quotation omitted), review

denied (Minn. Apr. 27, 2011).

       As a preliminary matter, we note that the state has not, either before the district

court or this court, disputed appellant’s ability to challenge the durational departure

through a motion under rule 27.03, subdivision 9, rather than through a postconviction

petition.   A postconviction petition must generally be filed within two years of

conviction, sentence, or appellate disposition, see Minn. Stat. § 590.01, subd. 4(a) (2012),

but “‘the two-year time limit [in section 590.01, subdivision 4(a)] does not apply to

motions properly filed under’ rule 27.03, subdivision 9.” Washington, 845 N.W.2d at

211 (alteration in original) (quoting Vazquez v. State, 822 N.W.2d 313, 318 (Minn. App.

2012)); see also State v. Pugh, 753 N.W.2d 308, 311 (Minn. App. 2008) (stating that a

defendant cannot forfeit or waive review of an illegal sentence), review denied (Minn.


                                             5
Sept. 23, 2008). Minnesota courts have limited the scope of motions “properly filed”

under rule 27.03, subdivision 9, preventing defendants from using such motions simply to

circumvent the postconviction deadline. See generally Washington, 845 N.W.2d at 210–

14 (discussing caselaw that has addressed the proper scope of motions under rule 27.03,

subdivision 9). Rule 27.03, subdivision 9, may be used only to assert that a sentence is

“not authorized by law” in that “the sentence is contrary to an applicable statute or other

applicable law.” Id. at 212–14 (stating that “a sentence may be ‘authorized by law’ even

if the sentence is incorrect in ways that might have justified reversal on direct appeal”).

       In Washington, this court held that a claim was not within the scope of rule 27.03,

subdivision 9, when the defendant challenged his enhanced sentence under the

dangerous-repeat-offender statute on the ground that he did not have two prior

convictions of violent crime. Id. at 214–15 (stating that the defendant’s claim was not

that the sentence was contrary to law or applicable statutes, but was “only a fact-based

challenge to the record of the sentencing hearing and, ultimately, to the district court’s

findings of facts relevant to his sentence”). In State v. Borrego, this court held that

concurrent sentences imposed unintentionally when the sentencing guidelines presumed

consecutive sentences, such that the defendant effectively received a downward departure

not supported by mitigating factors, were not sentences “not authorized by law”

correctable under rule 27.03, subdivision 9. 661 N.W.2d 663, 666–67 (Minn. App.

2003). The court stated that “[n]o statute or case law forbids the district court from

imposing concurrent sentences in this case” and that, while consecutive sentences were

presumed under the sentencing guidelines, “this presumption does not make the


                                              6
[concurrent] sentence[s] unauthorized.” Id. at 667. The court explained that “[t]he

purpose of the sentencing guidelines is simply to offer a measure of evenhandedness and

predictability to defendants and to ensure their sentences are not based upon

inappropriate grounds,” but that “neither party has a right to demand that the sentence

imposed be in accord with sentencing guidelines.” Id. (quotations omitted).

       Appellant contends that the record does not support a finding of the aggravating

factors that the district court relied on when imposing his enhanced sentence. He argues

that there were no substantial and compelling circumstances to support a sentencing

departure and that the district court abused its discretion by imposing his sentence. As

was the case in Washington, appellant is not claiming that his sentence is contrary to a

statute or law, but is contesting the district court’s findings relevant to his sentence. As

this court held in Borrego, the fact that a sentence departs from the presumptive guideline

sentence, even if without justification, does not make the sentence “not authorized by

law.” Appellant’s arguments should have been pursued through a direct appeal or timely

postconviction petition rather than through a motion under rule 27.03, subdivision 9. But

because the state has not challenged appellant’s motion on this basis and the district court

ruled on the merits of appellant’s arguments, we will address the merits of appellant’s

motion in this instance.

       “The sentences provided in the Sentencing Guidelines Grid are presumed to be

appropriate for every case. The judge shall utilize the presumptive sentence provided in

the sentencing guidelines unless the individual case involves substantial and compelling

circumstances.”    Minn. Sent. Guidelines II.D. (2004).      “Substantial and compelling


                                             7
circumstances are those demonstrating that the defendant’s conduct in the offense of

conviction was significantly more or less serious than that typically involved in the

commission of the crime in question.” Tucker v. State, 799 N.W.2d 583, 586 (Minn.

2011) (quotations omitted); see also Taylor v. State, 670 N.W.2d 584, 587 (Minn. 2003)

(“‘Substantial and compelling circumstances’ are those circumstances that make the facts

of a particular case different from a typical case.”). A departure from the presumptive

guideline sentence is reviewed for an abuse of discretion. State v. Geller, 665 N.W.2d

514, 516 (Minn. 2003).

      A.     Violation of a Position of Trust with the Victim

      The district court held that the record supported a finding that appellant violated a

position of trust with H.B. Abuse of a position of trust is an aggravating factor that

justifies a durational departure. State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990);

see also State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988) (“Abuse of trust

relationship between victim and perpetrator may be an aggravating factor.”), review

denied (Minn. May 18, 1988).

      Appellant correctly asserts that, in many cases, this aggravating factor is used

when the victim is a child who was somehow dependent on the defendant. See, e.g.,

Carpenter, 459 N.W.2d at 128 (affirming a durational departure for criminal sexual

conduct where the defendant was the victim’s church youth counselor); State v. Beard,

574 N.W.2d 87, 92–93 (Minn. App. 1998) (examining a durational departure for second-

degree felony murder where the defendant was the victim’s daycare provider), review

denied (Minn. Apr. 14, 1998). But this aggravating factor has also been applied in


                                            8
various cases that did not involve child victims. See, e.g., State v. Lee, 494 N.W.2d 475,

482 (Minn. 1992) (affirming a durational departure based, in part, on the factor of

violation of a position of trust where the defendant community leader sexually assaulted

two women); State v. Campbell, 367 N.W.2d 454, 461 (Minn. 1985) (affirming a

durational departure based, in part, on the factor of violation of a position of trust where

the codefendants knew the victim as neighbors and convinced the victim to open her door

to them); see also State v. Rourke, 681 N.W.2d 35, 40–41 (Minn. App. 2004) (stating that

“we have found no cases that limit the application of [the factor of abuse of a position of

trust] to child victims” and “defendants who are adult authority figures”), aff’d in part,

rev’d in part, and remanded on other grounds, 773 N.W.2d 913 (Minn. 2009). At the

time of the murder in this case, appellant was living with his mother in her apartment and

was helping her with her medication. Under these circumstances, the district court did

not abuse its discretion by finding that appellant violated a position of trust with H.B.

       B.     Treatment of the Victim with Particular Cruelty

       The district court also held that the record supported a finding that appellant

treated H.B. with particular cruelty. An aggravating factor that may be used as a reason

for a sentencing departure is that “[t]he victim was treated with particular cruelty for

which the individual offender should be held responsible.”          Minn. Sent. Guidelines

II.D.2.b.(2) (2004). “[P]articular cruelty involves the gratuitous infliction of pain and

cruelty of a kind not usually associated with the commission of the offense in question.”

Rourke, 773 N.W.2d at 922 (quotations omitted); see also Dillon v. State, 781 N.W.2d

588, 601 (Minn. App. 2010) (stating that “victim injuries have been relied on in multiple


                                              9
departure cases” and that victim injury may be “a useful indicator of the degree of

brutality involved”), review denied (Minn. July 20, 2010); Volk, 421 N.W.2d at 366

(stating that “there is no polite way to murder someone; every murder is cruel in its own

way,” but that “Minnesota courts do distinguish among levels of cruelty”). Compare

State v. Vogelpohl, 326 N.W.2d 635, 636 (Minn. 1982) (affirming a durational departure

based on the factor of particular cruelty where the defendant was convicted of second-

degree murder after repeatedly hitting the victim on the head with hammers and stuffing

her mouth with paper), and State v. Rathbun, 347 N.W.2d 548, 548–49 (Minn. App.

1984) (affirming a durational departure based on the factor of particular cruelty where the

defendant was convicted of second-degree murder after repeatedly stabbing the victim),

with Tucker, 799 N.W.2d at 586–88 (reversing a durational departure based on the factor

of particular cruelty where the defendant was convicted of second-degree felony murder

after he fired a single gunshot, hitting the victim, and then fled the scene).

       Appellant correctly asserts that any case of felony murder resulting from assault

will involve serious injury to the victim. But in this case, H.B. was stabbed numerous

times, there was extensive hemorrhaging of her brain, and her face and body were badly

mangled. Her body and clothing were covered in blood, and there was blood throughout

her apartment. Under these circumstances, the district court did not abuse its discretion

by finding that appellant treated H.B. with particular cruelty.

       Affirmed.




                                              10
