                          This opinion will be unpublished and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
                                     A14-1945

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                              Gideon Charles Arrington, II,
                                      Appellant

                                 Filed January 11, 2016
                                        Affirmed
                                     Worke, Judge

                               Anoka County District Court
                                File No. 02-CR-13-8457

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

         Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Bjorkman,

Judge.

                         UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges his 324-month executed sentence for first-degree criminal

sexual conduct, arguing that the district court abused its discretion by imposing a
sentence nearly double that of the presumptive sentence.          Appellant also seeks to

withdraw his guilty plea due to ineffective assistance of counsel. We affirm.

                                         FACTS

       In November 2013, appellant Gideon Charles Arrington, II approached Z.A. as she

left her workplace to run errands and told her that he was a police officer. When Z.A.

returned to her workplace, Arrington forced her into his vehicle, threatened to shoot her if

she did not comply, and stuck an object into her back that she believed to be a gun.

Arrington handcuffed Z.A., blindfolded her with duct tape, and drove her to his house.

He left Z.A. in a cold garage for a prolonged period of time. Arrington subsequently

penetrated Z.A.’s mouth with his penis and forced his penis into her vagina on at least

two occasions. After each assault, Arrington scrubbed Z.A. with a bleach solution, and

once made her sit in a bleach bath. He washed her clothes, eventually returning them to

her in wet condition. Arrington kept Z.A. blindfolded and threatened to kill her if she

was not quiet and compliant. He put a gun into her mouth. He told her that he knew

where she lived and threatened to kill her if she contacted the police. After nine hours,

Arrington released Z.A.     Z.A. alerted a taxi driver who contacted the police after

observing her wearing wet clothes, smelling of bleach, having duct tape in her hair, and

suffering from wounds left on her face from the duct tape.

       DNA samples taken from Z.A.’s body matched Arrington, and a witness to the

kidnapping identified Arrington in a sequential lineup. Arrington was charged with three

counts of first-degree criminal sexual conduct and one count of kidnapping.




                                             2
       After jury selection, Arrington entered an Alford plea1 to one count of first-degree

criminal sexual conduct and waived his right to a Blakely jury trial2 in exchange for a

maximum executed sentence of 324 months and the dismissal of the remaining counts.

The district court imposed a 324-month sentence, slightly less than double the

presumptive sentence under the Minnesota Sentencing Guidelines, based upon four

aggravating factors: (1) there were multiple acts and/or types of penetration; (2) the

victim was treated with particular cruelty; (3) Arrington had a prior felony offense

involving injury to a victim; and (4) there was an abuse of trust. This appeal follows.

                                     DECISION

Sentencing

       Arrington first argues that the district court abused its discretion by granting the

state’s motion for an upward sentencing departure because the imposed sentence unduly

exaggerates the criminality of his conduct.      A district court has great discretion in

sentencing, and we will not reverse a sentencing decision absent an abuse of discretion.

State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014). To justify a durational departure

from the presumptive sentence, there must be “substantial and compelling

circumstances.” Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). “If the record

supports findings that substantial and compelling circumstances exist, this court will not

1
  In an Alford plea, the accused maintains his innocence but “reasonably concludes that
there is evidence which would support a jury verdict of guilty.” State v. Goulette, 258
N.W.2d 758, 760 (Minn. 1977).
2
  Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), holds that a defendant is
entitled to a jury determination on whether there are aggravating factors warranting an
upward durational sentencing departure. State v. Dettman, 719 N.W.2d 644, 647 (Minn.
2006).

                                             3
modify the departure unless it has a strong feeling that the sentence is disproportional to

the offense.” State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984) (quotation

omitted). Aggravating factors give the district court discretion to impose a sentence up to

twice the length of the presumptive prison term. Dillon v. State, 781 N.W.2d 588, 596

(Minn. App. 2010), review denied (Minn. July 20, 2010).

       The district court relied upon four substantial and compelling reasons to support

the sentencing departure. First, it concluded that Arrington committed multiple acts of

penetration, based on the fact that he forced Z.M. to perform fellatio on him and

penetrated her vagina multiple times. “The fact that a defendant has subjected a victim to

multiple forms of penetration is a valid aggravating factor in first-degree criminal sexual

conduct cases.” State v. Yaritz, 791 N.W.2d 138, 145 (Minn. App. 2010) (quotation

omitted), review denied (Minn. Feb. 23, 2011). Therefore, the district court properly

relied upon this reason.

       Second, the district court concluded that Arrington treated Z.A. with particular

cruelty based on numerous facts, including blindfolding her with duct tape, forcing her to

bathe in bleach, holding her in an unheated garage for an extended period of time, and

threatening to kill her.    The Minnesota Sentencing Guidelines permit an upward

durational departure where a defendant treats a victim with particular cruelty. Minn.

Sent. Guidelines 2.D.3.b.(2) (Supp. 2013); see also Tucker v. State, 799 N.W.2d 583, 587

(Minn. 2011) (noting that an upward sentencing departure based on particular cruelty is

not an abuse of the district court’s discretion when the cruelty is not usually associated




                                            4
with the relevant offense). Based on the record, the district court properly relied upon

this as an aggravating factor.

       Third, it is undisputed that Arrington was previously convicted of felony first-

degree aggravated robbery involving injury to a victim. The sentencing guidelines permit

an upward durational departure where the “current conviction is for a criminal sexual

conduct offense . . . and . . . the offender has a prior felony conviction for . . . an offense

in which the victim was otherwise injured.” Minn. Sent. Guidelines 2.D.3.b.(3) (Supp.

2013). Therefore, the district court properly relied upon this aggravating factor.

       Fourth, the district court concluded that Arrington abused Z.A.’s trust because he

told her he was a police officer and suggested that, because of this, he knew where she

lived and could find her later. Arrington asserts that impersonating a police officer is a

separate offense that cannot be used to enhance his criminal-sexual-conduct offense, and

that he was not in a position of trust because he was not a police officer. Because the

district court relied upon numerous other factors that support the upward sentencing

departure, we need not determine whether abuse of trust is a proper aggravating factor

here. See Dillon, 781 N.W.2d at 595-96 (holding that a single aggravating factor is

sufficient to justify an upward departure).

       Arrington contends that even if his sentence was “technically permissible,” it

unfairly exaggerates the criminality of his conduct. We disagree. Arrington does not cite

caselaw demonstrating that the district court could not use the four aggravating factors to

impose a durationally increased sentence. Rather, he cites caselaw reducing multiple

consecutive sentences. See, e.g., State v. Goulette, 442 N.W.2d 793, 795 (Minn. 1989)


                                              5
(affirming defendant’s convictions but reducing aggregate sentence where five

consecutive sentences unfairly exaggerated the defendant’s criminal conduct).

Guilty plea withdrawal and ineffective assistance of counsel

       Arrington argues that his guilty plea is invalid because he was pressured by

counsel to enter a plea, and asks this court to permit him to raise an ineffective-

assistance-of-counsel claim in a postconviction proceeding. “Generally, an ineffective

assistance of counsel claim should be raised in a postconviction petition for relief, rather

than on direct appeal.” State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000). But a

party may directly raise the issue of plea-withdrawal on appeal if the record is sufficient

for this court to reach a conclusion on the validity of the plea. State v. Newcombe, 412

N.W.2d 427, 430 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987). Arrington

concedes that the record is likely insufficient to establish an effective-assistance-of-

counsel claim at this point. Based on the record before us, we are unable to conclude

whether counsel was effective and whether the plea is valid. Therefore, the issue of

whether Arrington’s guilty plea is invalid based on ineffective assistance of counsel is

preserved for postconviction proceedings, in accordance with the law, should Arrington

choose to initiate them.

       Affirmed.




                                             6
