                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2014).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A15-2028

                                     State of Minnesota,
                                        Respondent,

                                              vs.

                                    Lawrence Lee Hicks,
                                        Appellant.

                                   Filed December 5, 2016
                                          Affirmed
                                        Reyes, Judge

                               Hennepin County District Court
                                   File No. 27CR15594

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

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sean M. McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Jesson, Presiding Judge; Stauber, Judge; and Reyes,

Judge.

                          UNPUBLISHED OPINION

REYES, Judge

         Appellant argues that the district court abused its discretion when it imposed an

upward durational sentencing departure based on Minn. Stat. § 244.10, subd. 5a(a)(3),
(2014), particular cruelty, and particular vulnerability. Because we conclude that the

district court did not abuse its discretion in relying on the statute, we affirm.

                                           FACTS

       On November 4, 2014, appellant Lawrence Hicks and Y.D. were involved in an

argument. During the dispute, Y.D. pulled out a knife. Appellant struck Y.D., and she

fell to the ground. Appellant then obtained the knife and stabbed Y.D. in the back two

times while she was on the ground and very close to the inside corner of a building where

the entryway door meets a wall. The stabbing left Y.D. permanently paralyzed from the

waist down. During the incident, appellant attempted to cut Y.D.’s hair, which is a

sacred act in Y.D.’s Native-American culture. After the stabbing, appellant offered no

assistance to Y.D. and fled the scene.

       The state charged appellant with first-degree assault—great bodily harm, under

Minn. Stat. § 609.211, subd. 1, (2014). In an amended notice of intent to seek an upward

durational sentencing departure, the state requested that the district court impose a

statutory maximum sentence of 240 months upon conviction, asserting four aggravating

factors: (1) the current offense caused injury to the victim and appellant has a prior felony

conviction in which the victim was otherwise injured, under Minn. Stat. § 244.10, subd.

5a(a)(3); (2) particular cruelty; (3) particular vulnerability of the victim; and (4) appellant

attempted to avoid apprehension and divert the police investigation. The district court




                                               2
issued a Blakely order and memorandum,1 authorizing the state to present facts

referencing the first three aggravating factors included in its amended notice of intent as

well as facts referencing appellant’s flight from the scene.

       At an omnibus pretrial hearing, appellant pleaded guilty to the first-degree assault

charge and waived his right to have a jury find the aggravating factors. However, the

district court later allowed appellant to withdraw his guilty plea and Blakely waiver,

which he did, due to the release of the presentence investigation report (PSI). The PSI

recommended a minimum of a top-of-the-box sentence of 192 months but noted that the

record supports the state’s request for a 240-month sentence.

       After jury selection, appellant again pleaded guilty and waived his right to have

the jury determine the existence of the aggravating factors. Appellant admitted to facts

supporting certain aggravating factors. First, appellant admitted that he has a prior felony

conviction in which Y.D. was injured. He also admitted that it is a particularly cruel act

to attempt to cut Y.D.’s hair. Next, appellant admitted to stabbing Y.D. twice in the back

while she was on the ground in a corner between the wall and door of a building. Finally,

he admitted to fleeing the scene without offering aid to Y.D.

       The district court sentenced appellant to 228 months in prison, an upward

durational departure of 67 months above the 161-month presumptive sentence and less

than the 240-month statutory maximum sentence. The aggravating factors the district



1
  Under Blakely v. Washington, when imposing an upward durational departure, a district
court may only rely on facts found by a jury or admitted by the defendant, unless the fact
is of a prior conviction. 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537 (2004).

                                             3
court relied upon include that appellant was convicted of a prior felony in which the

victim was otherwise injured, the particular cruelty of attempting to cut Y.D.’s hair

during the current offense, and Y.D.’s particular vulnerability both during and after the

offense. This appeal follows.

                                     DECISION

       A district court may depart from the presumptive sentencing guidelines when the

record contains “substantial and compelling circumstances” for the departure. State v.

Misquadance, 644 N.W.2d 65, 68–69 (Minn. 2002). Substantial and compelling

circumstances include those that indicate the defendant’s conduct was significantly more

serious than conduct typically involved in the commission of the crime. State v. Hicks,

864 N.W.2d 153, 157 (Minn. 2015). The sentencing guidelines provide “a nonexclusive

list of factors that may be used as reasons for departure.” Minn. Sent. Guidelines 2.D.3

(2014). A jury must find or the defendant must admit to the facts underlying the

departure. State v. Stanke, 764 N.W.2d 824, 828 (Minn. 2009).

       We review a district court’s departure from the sentencing guidelines for an abuse

of discretion. Hicks, 864 N.W.2d at 156. A district court abuses its discretion when its

reasons for departure are “improper or inadequate.” Id. We give great deference to

district courts for durational departures of up to twice the presumptive sentence. Dillon v.

State, 781 N.W.2d 588, 596 (Minn. App. 2010) (citing State v. Thompson, 720 N.W.2d

820, 831 n.4 (Minn. 2006)), review denied (Minn. July 20, 2010). “The shorter the

departure, the greater the deference.” Id.




                                             4
       The district court first found that an upward durational departure was warranted

because “the current conviction is for . . . an offense in which the victim was otherwise

injured and there is a prior felony conviction for . . . an offense in which the victim was

otherwise injured.” Minn. Stat. § 244.10, subd. 5a(a)(3). The prior conviction upon

which the state relied is appellant’s prior felony terroristic-threats conviction in which the

victim was otherwise injured.

       Appellant argues that the statute requires a prior felony conviction involving

injury to the victim, in contrast to “a prior victim-injury incident” of which victim injury

was not an element of the offense. In support of his argument, appellant asserts that the

state’s reliance on State v. Stauffacher, 380 N.W.2d 843 (Minn. App. 1986), review

denied (Minn. Mar. 21, 1986), and State v. Peake, 366 N.W.2d 299 (Minn. 1985), is

misguided because, in both cases, victim injury was an element of the prior felony

conviction. Appellant also asserts that to interpret the statute as requiring only a victim-

injury incident would go against State v. Meyers, which requires “a prior conviction for a

specified offense.” 869 N.W.2d 893, 899 (Minn. 2015). We are not persuaded.

       The plain language of the statute and caselaw interpreting it do not require victim

injury as an element of the prior felony conviction. The statute states that a district court

may depart from the sentencing guidelines where, in both the current and prior felony

conviction, the victim was otherwise injured. The statute does not indicate that victim

injury is a required element of the prior felony conviction. Thus, the statute includes

prior felony convictions in which victim injury both was and was not an element of the

charge.


                                              5
       Caselaw interpreting the statute supports a broad reading of the “in which the

victim was otherwise injured” language. In Stauffacher, this court noted that “a departure

is proper where appellant has a prior felony conviction in which the victim was injured

regardless of whether injury to the victim was an element of either crime.” 380 N.W.2d

at 850 (citing Peake, 366 N.W.2d at 301). Additionally, in Peake, Peake argued that a

district court cannot use past violence as an aggravating factor when violence is an

element of the prior and current offenses. 366 N.W.2d at 301. The supreme court

rejected Peake’s argument because “[u]se of past injury to a victim would then be limited

to violence used in crimes where violence is not an element of the crime.” Id. Adopting

appellant’s interpretation of Stauffacher and Peake would ignore the fact that both cases

consider the use of a prior felony conviction for which victim injury is not an element

valid under the statute.

       Further, interpreting the statute as requiring only a prior victim-injury incident

would not go against Meyers because Meyers does not indicate that the statute requires a

specialized type of offense in the way appellant argues. Rather, Meyers states that the

necessary “specified offense” is “one involving victim injury,” which is consistent with

the statute. 869 N.W.2d at 899.

       The district court did not abuse its discretion by imposing an upward durational

departure because the statute does not require victim injury as an element of the current

or prior felony conviction. Because a district court may use a single aggravating factor to

support an upward durational departure, we need not address appellant’s arguments




                                              6
against the district court’s reliance on particular cruelty and particular vulnerability.2

Dillon, 781 N.W.2d at 599 (“Even a single aggravating factor may justify a departure.”);

Peake, 366 N.W.2d at 301 (“[W]here past crimes are violent and the present crime is a

continuation of the violence, departure is permissible under the guidelines.”).

       Affirmed.




2
  We note that particular vulnerability is also present in this case. A district court may
impose an upward durational departure where “the victim was particularly vulnerable due
to age, infirmity, or reduced physical or mental capacity, which was known or should have
been known to the offender.” Minn. Stat. § 244.10, subd. 5a(a)(1) (2014). Particular
vulnerability arises when the victim’s vulnerable state makes an assault “more effective.”
Dillon, 781 N.W.2d at 600. Here, appellant stabbed Y.D. after he struck her and she fell
to the ground. When appellant stabbed Y.D., her back was facing him and she was
positioned in a corner of a building. Therefore, Y.D. was particularly vulnerable due to
her known position when appellant stabbed her.

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