                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A12-1107

Court of Appeals                                                            Dietzen, J.
                                                       Dissenting, Wright and Page, JJ.

State of Minnesota,

                      Respondent,
                                                                    Filed: June 3, 2015
vs.                                                          Office of Appellate Courts

Mo Savoy Hicks,

                      Appellant.

                              ________________________

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Robert D. Goodell, Assistant County
Attorney, Anoka, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.
                              ________________________

                                      SYLLABUS

      The district court may use the defendant’s concealment of the victim’s body as an

aggravating factor to justify an upward durational departure from the presumptive

sentence for homicide offenses.

      Affirmed.




                                           1
                                     OPINION

DIETZEN, Justice.

        This case presents the question of whether the district court may use the

defendant’s concealment of the victim’s body as an aggravating factor to justify an

upward durational departure from the presumptive sentence for a homicide offense.

Appellant Mo Savoy Hicks was convicted of second-degree unintentional murder for the

death of Judy Rush. After Hicks waived his right to a sentencing jury, the district court

imposed a 420-month sentence, which is an upward durational departure of 168 months.

The court concluded that disposal and concealment of the victim’s body constituted

particular cruelty. The court of appeals affirmed Hicks’s sentence. Because concealment

of a murder victim’s body is an aggravating factor on which a district court may base an

upward departure, we affirm the court of appeals.

        On August 22, 2007, Judy Rush’s sister reported that Rush was missing. Police

went to Rush’s apartment to check on her. They entered the apartment and found blood

stains in the living room, hallway, and bedroom. The next day, the police executed a

search warrant at the apartment. The officers saw what appeared to be blood on the rug,

floor, mattress, and bedroom walls. On August 28, 2007, the Anoka County Medical

Examiner determined that Rush could not have survived after she lost the volume of

blood discovered in her apartment. In late July 2008, the court declared Rush legally

dead.




                                           2
       At the time of Rush’s disappearance, Rush and Hicks were friends. The police

spoke to Hicks about Rush on several occasions. He gave conflicting stories about being

with Rush on the day police believed she was murdered.

       Nearly 3 years after Rush’s disappearance, human remains were discovered buried

in a shallow grave in a park in Brooklyn Park. DNA analysis identified the remains as

Rush. After examining her skeletal remains, a medical examiner determined that Rush

had died as the result of a blunt force cranial injury.

       Respondent State of Minnesota charged Hicks with second-degree intentional

murder, Minn. Stat. § 609.19, subd. 1(1) (2014), and second-degree unintentional murder,

Minn. Stat. § 609.19, subd. 2(1) (2014). Hicks waived his right to a jury trial. He also

waived his right to counsel and represented himself at trial.

       During the court trial, the State presented physical evidence connecting Hicks to

Rush’s murder. In addition, two people with whom Hicks had been incarcerated at the

Anoka County Jail testified that Hicks told them that he had hit Rush on the head with a

“steel” or a hammer and then buried her near a place where Hicks used to live. The

district court found Hicks guilty of second-degree unintentional murder but acquitted him

of second-degree intentional murder.

       Prior to trial, the State gave written notice that it intended to seek an upward

durational sentencing departure. Its stated reasons for the departure included that the

victim was treated with particular cruelty and that the victim’s body was concealed. At

the sentencing hearing, the State indicated that these two reasons for a departure “dovetail

together” and “really go kind of hand and foot” because some appellate decisions

                                               3
mention concealment of a body as an aggravating factor while others “have stated that

concealment is a form of particular cruelty.” After consulting with standby counsel about

his right to a sentencing jury, Hicks signed a written waiver of his right to a sentencing

jury and orally waived that right at the sentencing hearing.

       Rush’s daughter testified at the sentencing hearing. She described the lengthy

search for her mother and the grief her family experienced. She testified that it was

especially difficult not having her mother’s body because she felt no closure, often

holding on to hope that her mother might be alive. She explained that she went to several

parks with a shovel and dug in places where the ground had recently been disturbed in the

hope of finding her mother’s remains, and inadvertently disturbed the remains of pets that

people had buried, which troubled her.

       Rush’s daughter testified that the family held two funerals for Rush—one after she

was declared legally dead and a second after her remains were located. The second

funeral was delayed by many months because the medical examiner needed the help of a

forensic anthropologist to determine the cause of Rush’s death due to the decomposed

state of the body. This delay caused the daughter additional grief and trauma; she was

forced to wait to be with and say goodbye to her mother while her mother’s remains were

in multiple locations being studied by different people who were trying to determine how

she died.

       The district court found, in part, that the State proved “beyond a reasonable doubt

that the disposal and concealment of Judy Rush’s body constitutes particular cruelty

under the facts.”    The court granted the State’s request for an upward durational

                                             4
departure. It sentenced Hicks to 420 months in prison, which was an upward durational

departure of 168 months. See Minn. Sent. Guidelines IV (2007) (listing 252 months as

the longest presumptive sentence for second-degree unintentional murder for a defendant

with a criminal history score of four).

       Hicks appealed both his conviction and sentence. The court of appeals affirmed.

State v. Hicks, 837 N.W.2d 51, 55 (Minn. App. 2013). With respect to his sentence, the

court concluded that “[o]ne compelling circumstance that can support an upward

durational departure is when a defendant treats a victim with particular cruelty” and that

“[a] defendant’s concealment of the victim’s body is considered particularly cruel.” Id. at

62-63. It further reasoned that the fact that Hicks’s concealment of Rush’s body could

constitute a separate, uncharged offense did not preclude the use of that fact to justify an

upward durational departure. Id. at 64. We granted review on the issue of Hicks’s

aggravated sentencing departure.

                                             I.

       Hicks argues that the district court abused its discretion in imposing a 420-month

executed sentence, which is an upward durational departure of 168 months. Specifically,

Hicks contends that concealing a murder victim’s body is not an aggravating factor upon

which a district court may base an upward departure. According to Hicks, concealing a

murder victim’s body amounts to a separate uncharged offense that is not a valid basis for

a sentencing departure.

       We review a district court’s decision to depart from the presumptive guidelines

sentence for an abuse of discretion. Tucker v. State, 799 N.W.2d 583, 585-86 (Minn.

                                             5
2011).     “If the reasons given for an upward departure are legally permissible and

factually supported in the record, the departure will be affirmed. But if the district

court’s reasons for departure are ‘improper or inadequate,’ the departure will be

reversed.” State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009) (quoting State v.

Jackson, 749 N.W.2d 353, 357 (Minn. 2008)).

         The Minnesota Sentencing Guidelines promote uniformity, proportionality, and

predictability in sentencing. State v. Misquadace, 644 N.W.2d 65, 68 (Minn. 2002). The

guidelines permit departures from the presumptive sentence, but a court departing from

the guidelines must articulate “substantial and compelling” circumstances justifying the

departure.     See Jackson, 749 N.W.2d at 360; Minn. Sent. Guidelines 2.D.1.

“ ‘Substantial and compelling 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, 799 N.W.2d at

586 (emphasis omitted) (quoting State v. Jones, 745 N.W.2d 845, 848 (Minn. 2008)).

The guidelines contain a “nonexclusive list of factors that may be used as reasons for

departure.” Minn. Sent. Guidelines 2.D.3. One of the aggravating factors listed in the

guidelines is that “[t]he victim was treated with particular cruelty for which the individual

offender should be held responsible.” Minn. Sent. Guidelines 2.D.3.b.(2). We have

occasionally recognized new aggravating factors that are not included in the list of

aggravating factors in the guidelines. See, e.g., State v. Morales, 324 N.W.2d 374, 377

(Minn. 1982) (upholding upward durational sentencing departure when the defendant

“invaded the zone of privacy which surrounded [the victim’s] home”); State v. Profit, 323

                                             6
N.W.2d 34, 36 (Minn. 1982) (upholding upward durational sentencing departure because

the offense was committed at a daycare in front of children).1

                                            A.

      To answer the question presented, we will first review our existing case law to

determine whether concealment of a homicide victim’s body is a legally permissible basis

for departure under the sentencing guidelines. Generally, the district court may impose

an upward durational sentencing departure if the evidence shows that the defendant

committed the offense in a particularly serious way. Tucker, 799 N.W.2d at 586. But the

court may not do so “if the sentence will unfairly exaggerate the criminality of the

defendant’s conduct, or punish a defendant twice for the same conduct.” Edwards, 774

N.W.2d at 601.

      We have considered whether the concealment of a body is an aggravating factor

that supports an upward sentencing departure in four cases. State v. Griller, 583 N.W.2d

736, 738-39, 744 (Minn. 1998); State v. Folkers, 581 N.W.2d 321, 323, 327 (Minn.

1998); State v. Schmit, 329 N.W.2d 56, 58 (Minn. 1983); State v. Ming Sen Shiue, 326

N.W.2d 648, 654-55 (Minn. 1982). In Shiue, the district court imposed a greater-than-

double upward durational sentencing departure for a second-degree murder conviction

when the defendant abducted a six-year-old boy, put him in the trunk of his car and drove

1
       At the time Morales and Profit were decided, the guidelines did not include
committing an offense in the presence of a child or in the victim’s zone of privacy as
aggravating factors. See Minn. Sent. Guidelines II.D.2.b. (1981). After Morales and
Profit were decided, the guidelines were updated to list the two circumstances as
aggravating factors. See Minn. Sent. Guidelines 2.D.3.b.(13)-(14).



                                            7
around for an hour, and then killed him with a crowbar in a deserted area. 326 N.W.2d at

649-50. The defendant left the body hidden in dense brush in this remote location. Id.

Several months after the boy was reported missing, the defendant agreed to tell law

enforcement where the body was located in exchange for not being charged with first-

degree murder. Id. at 650.

      In affirming the upward durational departure, we stated that “the concealment [of

the body] was an aggravating factor to be considered.” Id. at 655. We reasoned that

“[f]or five months, [the victim]’s family suffered a great deal of trauma, not knowing

whether their son was dead or alive.”       Id.   “The inclusion of concealment as an

aggravating factor [was] justified not only by the trauma to close relatives, but by

independent policy reasons” of preventing defendants from using the unknown location

of a murder victim’s body as a negotiating chip to receive a reduced charge. Id.

      One month after Shiue, we decided State v. Schmit, 329 N.W.2d 56 (Minn. 1983).

In Schmit, we affirmed an upward durational sentencing departure in a first-degree heat-

of-passion manslaughter case but reduced it to a double durational departure. Id. at 56.

The defendant killed his wife, and the next day he took her body and left it near some

railroad tracks, where it was discovered about 2 months later. Id. The district court

relied, in part, on “the manner in which defendant disposed of the victim’s body” in

justifying the sentencing departure. Id. at 58 n.1. We stated that “[b]ecause defendant

made no effort to bargain with information concerning the location of the body, his

concealment of the body does not operate as an aggravating factor in sentencing.” Id.



                                            8
      Arguably, Schmit could be read to limit concealment of a body as an aggravating

factor to those circumstances in which the defendant attempts to bargain with information

concerning the location of the body. But we rejected such a limitation in two subsequent

cases. State v. Griller, 583 N.W.2d 736 (Minn. 1998); State v. Folkers, 581 N.W.2d 321

(Minn. 1998). In Folkers, the defendant shot his girlfriend; the next day he put her body

in her van and abandoned the van in a parking lot. 581 N.W.2d at 323. We affirmed an

upward durational sentencing departure, concluding, among other things, that Folkers

“treated the victim with particular cruelty in that he attempted to conceal her body.” Id.

at 327. We reasoned that “[a] finding that the victim was treated with particular cruelty

alone would be enough to justify the departure.” Id. And in Griller, we affirmed an

upward durational sentencing departure for second-degree murder that the district court

based, in part, on concealment of the body when the defendant dismembered the victim

and buried the body parts in his back yard. 583 N.W.2d at 738-39, 744.

      Our decisions in Folkers and Griller introduced confusion into the law. We did

not mention Schmit in either of these cases. See Griller, 583 N.W.2d at 744; Folkers, 581

N.W.2d at 327. Because Folkers and Griller did not mention Schmit, it was unclear as to

what circumstances, if any, would limit the use of concealment of the victim’s body as an

aggravating factor.

      We granted review in State v. Leja to clarify when concealment of a body could be

an aggravating factor. 684 N.W.2d 442 (Minn. 2004). In Leja, the defendant was

convicted of aiding and abetting second-degree unintentional murder.          Id. at 443.

(Anderson, Paul, J., plurality opinion). The defendant’s accomplices killed the victim

                                            9
and dismembered his body, and the defendant helped to hide the victim’s body parts in

Wisconsin. Id. at 444-46 (Anderson, Paul, J., plurality opinion).

       Unfortunately, we were unable to clarify the law. Although we reversed the

upward departure, only three members of the court concluded that concealment of the

victim’s body, without additional facts such as the use of the location of the body as a

bargaining chip, does not justify an upward durational sentencing departure. See id. at

449-50 (Anderson, Paul, J., plurality opinion). One member of the court concurred in the

result, but on different grounds than the plurality opinion—specifically, that the district

court could not base an upward departure on concealment of the body because it

constituted the separate offense of accomplice after the fact. Id. at 451-52 (Anderson,

Russell, J., concurring specially). Three members of the court dissented and concluded

that concealment of the victim’s body alone is a sufficient basis for an upward durational

departure and that the district court did not abuse its discretion in imposing the departure.

Id. at 456-57 (Blatz, C.J., dissenting, joined by Gilbert, Meyer, JJ.).2



2
        The dissent argues our law is clearly settled that concealment of a body is not an
aggravating factor unless the defendant attempts to use concealment as a bargaining chip.
We disagree. Our plurality opinion in Leja reflects the lack of clarity on this question.
The dissent alleges that in Leja “four members of the court rejected the State’s argument
that concealment of the body should, by itself, be an aggravating factor sufficient to
justify an upward durational departure.” Only the three members of the court who joined
the plurality rejected this argument. See Leja, 684 N.W.2d at 449-50 (Anderson, Paul, J.,
plurality opinion). In his concurrence, Justice Russell Anderson did not join the
plurality’s conclusion on this issue; indeed, he expressed no view on the question of
whether concealment of a body could be an aggravating factor only if the defendant tried
to use that concealment as a bargaining chip. See id. at 450-53 (Anderson, Russell, J.,
concurring specially). Instead, Justice Russell Anderson’s concurrence based its analysis
                                                        (Footnote continued on next page.)
                                              10
      Today, we answer the question left open by Leja.            We conclude that the

concealment of a homicide victim’s body, in and of itself, may be an aggravating factor

under the sentencing guidelines that supports an upward durational sentencing departure. 3

The offender’s conduct in concealing the victim’s body is more serious than the typical

second-degree unintentional murder because family and friends of a victim suffer

additional trauma by not knowing whether their relative or friend is dead or alive, and

concealment is contrary to the proper, respectful treatment due to the remains of a

deceased person.4 Shiue, 326 N.W.2d at 655.

      Previously, we have relied on the harm caused to people other than the victim

when recognizing aggravating factors that are not specifically listed in the guidelines. 5

See Edwards, 774 N.W.2d at 607 (holding that the district court did not abuse its

(Footnote continued from previous page.)
primarily on the fact that the concealment was a separate incident from the underlying
crime of unintentional felony murder.
3
       To the extent that State v. Schmit, 329 N.W.2d 56, 58 n.1 (Minn. 1983), is
inconsistent with this decision, that portion of Schmit is no longer good law.
4
     By concealing the victim’s body, we mean disposing of the victim’s body in a
manner that impedes its discovery.
5
       The dissent claims these cases are distinguishable because the other people who
were harmed by the defendant’s conduct “were present at the scene when the crime was
committed.” This distinction does not apply to State v. Elkins, 346 N.W.2d 116, 119
(Minn. 1984), and Shiue, 326 N.W.2d at 655. The dissent is correct that in some of the
cases cited above, the other people who were harmed by the defendant’s conduct were
physically present when the offense was committed. See Edwards, 774 N.W.2d at 600;
State v. Mitjans, 408 N.W.2d 824, 834 (Minn. 1987); Profit, 323 N.W.2d at 36. But the
dissent cites no language from these decisions indicating that the imposition of an upward
durational departure is expressly limited to factual situations in which the other people
harmed are present when the offense is committed.


                                           11
discretion in concluding first-degree assault was committed in a particularly serious way

because the defendant put at risk a large number of people who were near the victim

when the defendant shot him); State v. Mitjans, 408 N.W.2d 824, 834 (Minn. 1987)

(upholding upward durational sentencing departure in second-degree unintentional

murder case because shots fired in a bar put others at risk); State v. Elkins, 346 N.W.2d

116, 119 (Minn. 1984) (affirming an upward durational sentencing departure because,

among other reasons, the defendant pinned the blame for the crime on someone else);

Shiue, 326 N.W.2d at 655 (recognizing that concealment of a body is an aggravating

factor because of trauma caused to the victim’s family); State v. Profit, 323 N.W.2d 34,

36 (Minn. 1982) (upholding an upward durational sentencing departure for criminal

sexual conduct that was committed at a daycare in front of children because “while the

children maybe were not technically victims of the crime, they were victims in another

sense”). Consequently, the concealment of a homicide victim’s body, in and of itself,

may be an aggravating factor that supports an upward durational departure.

                                            B.

       The dissent claims that Hicks’s concealment of the body was an “afterthought” to

the murder and was not “part of a prearranged scheme.” But we have long recognized

that a defendant’s conduct in concealing a crime is part of the same behavioral incident as

the underlying offense.    See State v. Gibson, 478 N.W.2d 496, 497 (Minn. 1991)

(explaining that when a defendant commits a substantially contemporaneous second

offense in order to avoid apprehension for the first offense, both offenses are part of the

same behavioral incident). As a result, a defendant’s conduct in concealing a victim’s

                                            12
body is generally part of the defendant’s conduct of committing a homicide. It is conduct

that is more serious than that typically involved in a homicide.          Consequently, the

dissent’s claim that our decision “undermines the important sentencing principles of

proportionality, uniformity, predictability, and rationality” is without merit.

       Moreover, our case law does not require concealment of a victim’s body to be part

of a prearranged scheme for it to be part of the same behavioral incident, as the dissent

claims.6 See State v. Kendell, 723 N.W.2d 597, 602-04, 608 (Minn. 2006) (holding the

district court correctly determined that shootings were part of a single behavioral incident

under the avoidance-of-apprehension doctrine when the defendant shot at his girlfriend

and children in their apartment and upon leaving the girlfriend’s apartment, shot and

killed an unrelated male in the doorway of the next apartment); State v. Wipper, 512

N.W.2d 92, 93-95 (Minn. 1994) (holding that murder and arson were committed as part

of the same behavioral incident under the avoidance-of-apprehension doctrine when the

defendant shot the victim and then, along with his co-defendant, decided to burn down

the victim’s house in an attempt to cover up the killing); State v. Hawkins, 511 N.W.2d 9,

6
       The dissent relies on State v. Bookwalter, 541 N.W.2d 290 (Minn. 1995), to argue
that the avoidance-of-apprehension doctrine requires that the second offense must be
“part of a prearranged scheme” and cannot be an “afterthought” to the initial offense. In
Bookwalter, we never used the phrases “prearranged scheme” or “afterthought” in our
analysis under the avoidance-of-apprehension doctrine. Id. at 296-97. We did use these
phrases in an earlier part of our opinion addressing another topic. Id. at 295-96. But
contrary to the dissent’s claim, we did not “incorporate[] that discussion into our analysis
of Bookwalter’s avoidance-of-apprehension claim.” See id. at 297 (relying on two
specific “factors”—“the multiplicity and disjointed nature of events between the sexual
assault and the attempted murder”—in concluding that the defendant did not attempt to
murder the victim in order to avoid apprehension for sexually assaulting her).


                                             13
11, 13-14 (Minn. 1994) (holding that aggravated robbery and attempted murder were part

of the same behavioral incident under the avoidance-of-apprehension doctrine when the

defendant beat the victim and tried to take his money, and when the victim said he was a

cop and the defendant saw the victim had a gun, the defendant said “ ‘[w]e’ve got to do

him’ ”). Thus, the dissent’s claim that Hicks’s concealment of Rush’s body necessarily

constitutes a separate offense is without merit.

       When viewed in their totality, the facts of this case establish that Hicks’s

concealment of Rush’s body was substantially contemporaneous to her murder. The

evidence presented at trial shows that Hicks and Rush argued in her apartment, and Rush

threatened to call the police. Hicks told Rush he “wasn’t going to let another bitch send

him back to prison.” During the course of this argument, Hicks went into the bedroom,

hit Rush on the head with a hammer, and killed her. Hicks then went into the living room

and began devising a plan to get rid of Rush’s body. Hicks eventually decided to dump

Rush’s body in Brooklyn Park in the middle of the night. He left the apartment only to

retrieve a large hockey bag from the trunk of his car. Later that night, he placed Rush’s

body into that bag, put the bag in the trunk of his car, drove to Brooklyn Park, and then

buried Rush’s body in a shallow grave in a park. Although “some hours” passed between

the murder and Hicks’s removal of Rush’s body from the apartment, the concealment of

Rush’s body may still be considered part of the same conduct as the murder. See Bixby v.

State, 344 N.W.2d 390, 393 (Minn. 1984) (holding that two separate acts of criminal

sexual conduct involving the same victim committed in two locations over the course of

one evening were part of the same behavioral incident); State v. Herberg, 324 N.W.2d

                                             14
346, 349 (Minn. 1982) (same); see also State v. Musta, 284 Minn. 359, 364, 170 N.W.2d

341, 345 (1969) (explaining that if the defendant had been charged with only robbery,

“evidence of his efforts to escape apprehension including the exchange of gunfire [with

police] which constituted the assault” and which occurred several hours after the robbery,

“would have been admissible as evidence of participation in the robbery”).

                                            C.

       Hicks and the dissent also argue that concealment of a murder victim’s body

cannot be an aggravating factor because it constitutes the uncharged offense of interfering

with a dead body. See Minn. Stat. § 609.502, subd. 1 (2014) (“Whoever interferes with

the body or scene of death with intent to mislead the coroner or conceal evidence is guilty

of a gross misdemeanor.”) Relying on State v. Jackson, 749 N.W.2d 353 (Minn. 2008),

Hicks contends that an upward durational sentencing departure cannot be based on a

separate, uncharged offense. This argument lacks merit.

       In Jackson, the defendant and an accomplice broke into the victim’s home, the

defendant assaulted the victim with a gun, and the two stole his property. 749 N.W.2d at

356. We reversed an upward durational sentencing departure the district court imposed

for first-degree aggravated robbery while armed with a dangerous weapon based, in part,

on the homeowner’s injuries, which amounted to a third-degree assault. Id. at 357. We

concluded the departure was improper because “[a] departure cannot be based on

uncharged criminal conduct,” and if third-degree assault had been charged, Minn. Stat.

§ 609.035 (2014), would have precluded sentencing on that offense.           Jackson, 749

N.W.2d at 357-58. We were also concerned with the possibility that the sentencing

                                            15
guidelines could be manipulated by bringing lesser charges than the facts permitted in

order to obtain a longer sentence by withholding some facts related to greater charges to

use as an aggravating factor at sentencing.7 Id. at 357-58; see also State v. Edwards, 774

N.W.2d 596, 606 (Minn. 2009) (interpreting Jackson as expressing concern that the

prosecution was “manipulating” the sentencing guidelines by undercharging Jackson).

      Jackson is distinguishable. Unlike Jackson, there is no concern in this case of

sentencing manipulation by the State.     749 N.W.2d at 357-58.       The State did not

undercharge Hicks when it charged him with two counts of second-degree murder.

      More importantly, in Edwards, 774 N.W.2d at 601-02, 606, we clarified our

discussion in Jackson regarding what facts may be used to support an upward durational

sentencing departure when the facts relate to the offense of conviction and another

offense. Specifically, in Edwards we rejected the defendant’s argument that our case law

“expressly bar[s] the district court from considering facts to depart simply because those

facts related to another offense that arose out of the same behavioral incident.” 774

N.W.2d at 604. Instead, we explained that “[u]nder our sentencing jurisprudence, it is

permissible for the district court to impose an upward sentencing departure” if the facts


7
        Following our decision in Jackson, the Legislature amended Minn. Stat. § 244.10
to add a provision stating, “[n]otwithstanding section 609.04 or 609.035, or other law to
the contrary, when a court sentences an offender for a felony conviction, the court may
order an aggravated sentence beyond the range specified in the sentencing guidelines grid
based on any aggravating factor arising from the same course of conduct.” Act of May
11, 2009, ch. 59, art. 5, § 8, 2009 Minn. Laws 346, 367 (codified at Minn. Stat. § 244.10,
subd. 5a(b) (2014)). Thus, the Legislature has apparently limited the impact of Jackson.
This language, however, does not apply to this case. See id., 2009 Minn. Laws at 367
(stating that the amendment applies to crimes committed on or after August 1, 2009).


                                           16
“ ‘available’ for departure” establish “that the defendant committed the offense in

question in a particularly serious way.” Id. at 601-02. We held that facts from a single

behavioral incident that relate to multiple offenses may be relied on to support a

durational departure “if those facts show that the defendant committed the offense being

sentenced in a particularly serious way.” Id. at 604. In Edwards, we found Jackson

distinguishable on several grounds, including that “there [was] no evidence of sentence

‘manipulation’ by the State.” Edwards, 774 N.W.2d at 606.

       Consequently, the facts of concealing a homicide victim’s body are available for

departure in appropriate cases. See Edwards, 774 N.W.2d at 601. In a second-degree

unintentional murder case, the facts of concealment of a victim’s body may be part of a

single behavioral incident that relate to both second-degree unintentional murder and

interfering with a dead body. See State v. Gibson, 478 N.W.2d 496, 497 (Minn. 1991).

For the reasons we previously articulated, these facts may show that the defendant

committed second-degree unintentional murder in a particularly serious way. As a result,

a district court may base an upward durational departure on the defendant’s concealment

of a victim’s body when sentencing a defendant for second-degree unintentional murder.

       We recognize that the concealment of a victim’s body may not always

demonstrate that the offense was committed in a particularly serious way. For example,

if the body were concealed for a day, then it may not have been committed in a particular

serious way. In each case, the district court will need to determine if the particular facts

of concealment as found by a sentencing jury or admitted by the defendant demonstrate

that the offense was committed in a particularly serious way.

                                            17
                                              II.

       Having determined that concealment of a homicide victim’s body may be a reason

for a district court to impose an upward durational sentencing departure, we now consider

whether the district court abused its discretion in imposing an upward durational

sentencing departure based on the facts of this case. “If the reasons given for an upward

departure are legally permissible and factually supported in the record, the departure will

be affirmed.” State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009).

       The district court’s stated reason for the durational departure was its conclusion

that the disposal and concealment of Rush’s body was particularly cruel under the facts of

this case. Despite the district court’s use of the phrase “particular cruelty,” it is clear that

the district court’s reason for imposing an upward durational departure was Hicks’s

concealment of Rush’s body. The State argued to the district court that concealment of a

body and particular cruelty were essentially the same because appellate decisions had

used different language to refer to the same aggravating factor. And the district court

stated that Hicks’s concealment of Rush’s body is what made the offense more serious

than the typical second-degree unintentional murder.

       We conclude that concealment of a homicide victim’s body is a legally

permissible reason for a departure and is factually supported by the record in this case.

The evidence shows Hicks concealed Rush’s body by burying it in a shallow grave in a

park. There was extensive testimony from Rush’s daughter regarding the trauma and

anguish Rush’s family experienced because her body was concealed for nearly 3 years.



                                              18
As a result, we hold the district court did not abuse its discretion when it imposed an

upward durational departure on Hicks’s sentence for second-degree unintentional murder.

      Affirmed.




                                          19
                                      DISSENT

WRIGHT, Justice (dissenting).

       “Hard cases should not be allowed to make bad law.” Young v. City of Mankato,

97 Minn. 4, 8, 105 N.W. 969, 971 (1905) (internal quotation marks omitted). The

anguish experienced by the Rush family is heartbreaking and, therefore, the temptation to

adopt a rule of law that might provide some solace is powerful. Nevertheless, we must

not sacrifice important legal principles in the pursuit of such a rule. By affirming the

district court’s departure from the Minnesota Sentencing Guidelines, the court not only

undermines the principles of uniformity, proportionality, rationality, and predictability

that form the foundation of our sentencing law, the court also fails to abide by the

doctrine of stare decisis. For these reasons, I conclude that the law compels a sentence no

greater than the upper limit of the presumptive guideline range. Therefore, I respectfully

dissent.

       The question presented in this case is whether a district court may depart from the

presumptive sentence for a second-degree murder conviction based solely on the

defendant’s uncharged offense of concealment of the victim’s body.           The majority

answers this question in the affirmative by: (1) determining that the murder and

concealment were part of the same behavioral incident; (2) concluding that the murder

was committed in a particularly serious way because, after committing the murder, Hicks

concealed the victim’s body, which caused additional trauma to the victim’s family and

friends; and (3) overruling State v. Schmit, 329 N.W.2d 56, 58 n.1 (Minn. 1983) (holding

that concealment of the murder victim’s body did not operate as an aggravating factor in


                                           D-1
sentencing because the defendant made no effort to bargain with information concerning

the location of the body). Each rationale that the majority offers reflects an abandonment

of important and well-established legal principles. My analysis begins with a summary

of the principles underlying our sentencing law and proceeds to an examination of each

rationale offered by the majority.

                                            I.

       In Minnesota, we “protect the individual against the misuse of the criminal law

by . . . authorizing sentences reasonably related to the conduct and character of the

convicted person.” Minn. Stat. § 609.01, subd. 1(2) (2014). Moreover, the overarching

principles in all sentencings are “rationality, predictability, and consistency.” State v.

Misquadace, 644 N.W.2d 65, 71 (Minn. 2002). The Minnesota Sentencing Guidelines

embody the “state public policy to maintain uniformity, proportionality, rationality, and

predictability in sentencing.” Minn. Stat. § 244.09, subd. 5 (2014); see Taylor v. State,

670 N.W.2d 584, 586 (Minn. 2003). The sentencing guidelines ensure that “ ‘sanctions

following conviction of a felony are proportional to the severity of the offense of

conviction and the extent of the offender’s criminal history.’ ”        Tucker v. State,

799 N.W.2d 583, 586 (Minn. 2011) (emphasis added) (quoting Minn. Sent. Guidelines I

(2010)). To promote uniformity and proportionality in sentencing, “ ‘departures from the

presumptive guidelines sentence are discouraged.’ ” Id. (quoting State v. Jackson, 749

N.W.2d 353, 357 (Minn. 2009). Put differently, the factors justifying departures “are

intended to describe specific situations involving a small number of cases.” Minn. Sent.

Guidelines cmt. 2.D.301. The Minnesota Sentencing Guidelines Commission expressly


                                           D-2
“rejects factors that are general in nature, and that could apply to large numbers of cases.”

Id. With these important sentencing principles as my lodestar, I consider each rationale

that the majority offers.

                                             II.

       The majority contends that the murder and concealment of Rush’s body were part

of a single behavioral incident and, therefore, the prohibition against using facts

underlying a separate, uncharged offense is not implicated in this case. See State v.

Edwards, 774 N.W.2d 596, 602 (Minn. 2009) (explaining that a sentencing departure

may not be based on a separate, uncharged offense). I disagree. The concealment of

Rush’s body is a separate, uncharged violation of Minn. Stat. § 609.502, subd. 1 (2014),

and those facts that underlie the concealment cannot be used to enhance the murder

sentence.

       When determining whether crimes are committed as part of a single behavioral

incident, courts consider whether there is a “single criminal objective” and a “unity of

time and place.” State v. Bookwalter, 541 N.W.2d 290, 294-95 (Minn. 1995); State v.

Johnson, 273 Minn. 394, 404-05, 141 N.W.2d 517, 525 (1966) (describing the factors as

time, place, and an effort to obtain a single criminal objective). The application of this

test depends heavily on the facts and circumstances of the particular case. State v. Bauer,

792 N.W.2d 825, 828 (Minn. 2011). For example, under the avoidance-of-apprehension

doctrine, when a defendant commits a substantially contemporaneous second offense to

avoid apprehension for the first offense, we have held that the offenses are part of the

same behavioral incident. See State v. Gibson, 478 N.W.2d 496, 497 (Minn. 1991)


                                            D-3
(concluding that the offenses of criminal vehicular operation and leaving the scene of an

accident arose from the same behavioral incident). When a second offense is committed

5 hours after the first offense, “in all likelihood we would not consider it to have been

committed ‘substantially contemporaneously’ with the first offense.” Bookwalter, 541

N.W.2d at 297.       Moreover, when the avoidance-of-apprehension offense is not

committed as part of a prearranged scheme, but instead is committed at a different time

and place as an “afterthought,” we have concluded that the two crimes do not arise from a

single behavioral incident.1 See id. at 296 (holding that the initial criminal sexual assault

and the subsequent decision to kill the victim to avoid apprehension were not part of a

single behavioral incident); see also State v. Leja, 684 N.W.2d 442, 451 (Minn. 2004)

(Anderson, Russell, J., concurring specially) (concluding that the concealment of the

victim’s body was not part of the same behavioral incident as the murder).

       Applying the single-behavioral-incident test to the particular facts and

circumstances of Hicks’s case, I conclude that the offenses of second-degree


1
       The majority contends our decision in Bookwalter does not discuss the need for a
prearranged scheme in the context of the avoidance-of-apprehension doctrine. I
respectfully disagree. Although we initially discussed the need for a prearranged scheme
in the context of whether the offenses were part of one behavioral incident, we later
incorporated that discussion into our analysis of Bookwalter’s avoidance-of-apprehension
claim. Bookwalter, 541 N.W.2d at 296-97. More specifically, in rejecting Bookwalter’s
avoidance-of-apprehension claim, we explicitly relied on the “factors that formed the
basis of our conclusion that the sexual assault and attempted murder were not one
behavioral incident.” Id. at 297. Our avoidance-of-apprehension analysis was not
limited to “the multiplicity and disjointed nature of events,” but instead included a
discussion of the district court’s finding that Bookwalter’s motivation for the attempted
murder never became clear. Id. In other words, our analysis considered not only the time
and place, but also the singleness of purpose that is found in a prearranged scheme.


                                            D-4
unintentional murder and concealment of Rush’s body did not arise from a single

behavioral incident. The State established that Hicks inflicted blunt-force trauma to

Rush’s skull, which caused her death. But because the State failed to establish that Hicks

intended to cause Rush’s death, Hicks was acquitted of second-degree intentional murder.

According to the facts established at trial, Hicks did not intend to kill Rush—her murder

was unintentional. Hicks then went into the living room and only then began to devise a

plan to conceal Rush’s body. He eventually decided to hide Rush’s body in Brooklyn

Park in the middle of the night. Later that night, Hicks placed the body into the trunk of

his car and transported the body from Columbia Heights to a remote location in Brooklyn

Park, where he buried and concealed it. On these facts, it necessarily follows that the

concealment of Rush’s body was not part of a prearranged program of events when Hicks

struck Rush with the blunt instrument.2       The concealment was committed as an

“afterthought.” Moreover, several hours passed before Hicks transported Rush’s body to

Brooklyn Park and therefore the concealment was not committed “substantially

contemporaneously” with the murder. Instead, the concealment was committed at a

different time and place. Because no principled distinction can be drawn between the

facts of this case and those in Bookwalter, the circumstances here compel the conclusion


2
       Ample evidentiary support for this conclusion was presented in the trial testimony
of a fellow inmate at the Anoka County Jail in whom Hicks confided. When describing
the murder and subsequent concealment to the inmate, Hicks said that after he killed
Rush, he “went out to the living room, kept drinking, and . . . had to come up with a plan
to get rid of her body.” He considered a number of plans, including disposing of the
body in the Mississippi River. After “some hours,” he placed her body in a hockey bag,
transported it to a field in the trunk of his car, and hid it.


                                           D-5
that the offenses of second-degree unintentional murder and the concealment of Rush’s

body are not part of a single behavioral incident.

       Since the concealment of Rush’s body constitutes a separate, uncharged offense, I

next consider whether the district court erred by imposing an upward sentencing

departure based on the facts underlying the concealment of Rush’s body. In Edwards, we

reaffirmed the rule that the facts underlying a separate, uncharged offense may not be

used to support an upward sentencing departure. 774 N.W.2d at 602 (citing State v. Ott,

341 N.W.2d 883, 884 (Minn. 1984)). In explaining the rationale for the rule, we said that

the facts underlying a separate, uncharged offense “do not show that the offense being

sentenced was committed in a particularly serious way.”         Id.   Moreover, we have

repeatedly said that it is “unfair” to enhance a sentence based on facts underlying a

separate, uncharged offense. See, e.g., Leja, 684 N.W.2d at 452 (Anderson, Russell, J.,

concurring specially) (explaining that durational departures should not be based on

evidence of an offense never charged); State v. Brusven, 327 N.W.2d 591, 593 (Minn.

1982) (explaining that the district court’s reliance on evidence that the defendant

committed separate acts of sexual misconduct with other children was unfair); State v.

Barnes, 313 N.W.2d 1, 3 (Minn. 1981) (“[I]t would be unfair to try to justify the

departure on the basis of the police reports suggesting the defendant maybe could have

been convicted of violent crimes in two other instances[.]”).

       Applying the Edwards rule to the facts presented here, I conclude that the district

court erred when it imposed an upward sentencing departure based on the facts

underlying the uncharged concealment offense. To be clear, had the prosecutor charged


                                            D-6
Hicks and the jury convicted him of the separate offense of concealing Rush’s body, I

would agree that the circumstances surrounding the concealment, including the victim

impact statement provided by Rush’s daughter, demonstrate that the concealment was

committed in a particularly serious way. Hicks did not merely interfere with the scene of

death. He concealed Rush’s body, transported it to a remote location in another city, and

then hid the body in a location where it remained for years. Indeed, the concealment of

Rush’s body caused great anguish to Rush’s family.               These circumstances of

concealment, however, do not meet the legal standard for a sentencing departure, which

requires that Hicks committed the second-degree murder in a particularly serious way.

       By affirming the district court’s use of facts underlying the separate, uncharged

concealment offense, the majority undermines the important sentencing principles of

proportionality, uniformity, predictability, and rationality. When sentencing departures

are based on separate, uncharged offenses, at least four unauthorized consequences can

occur: (1) a defendant’s punishment may be disproportionate to the conduct underlying

the offense of conviction; (2) defendants who commit the offense of conviction in an

identical manner may receive different punishments; (3) the conduct underlying the

offense of conviction is no longer a reliable predictor of punishment; and (4) the resulting

sentencing scheme lacks rationality. The facts of this case, although heartbreaking, do

not warrant an abandonment of the bedrock principles of proportionality, uniformity,

predictability, and rationality in sentencing. I, therefore, respectfully dissent from the

majority’s conclusion that the upward sentencing departure at issue here was justified by

the facts underlying the separate, uncharged offense of concealment of Rush’s body.


                                            D-7
                                           III.

       The majority contends that the murder was committed in a particularly serious

way because Hicks concealed the victim’s body, causing additional trauma to the

victim’s family and friends. This expansion of the law is unprecedented and ill-advised.

       The majority accurately states that we have affirmed sentencing departures based

on the impact of the offense of conviction on bystanders who were “not technically

victims of the crime.”    State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982); see also

Edwards, 774 N.W.2d at 607 (explaining that the defendant’s conduct was particularly

serious because it exposed bystanders to injury or death); State v. Mitjans, 408 N.W.2d

824, 834 (Minn. 1987) (same).         However, the circumstances of these cases are

distinguishable in a consequential way. In each of these cases the bystanders were

present at the scene when the crime was committed.

       In Profit, the defendant went to a daycare center and forced the woman in charge

into a bathroom at knife point, where he then stole her rings and tried to kiss her. 323

N.W.2d at 35. When the daycare children started to make noise, he tied her up with her

bra and sweater and walked her toward an outer door where he encountered a parent who

was dropping off a child. Id. We concluded that, although the children present at the

daycare center “were not technically victims of the crime,” committing the offense of

conviction “in front of the children was a particularly outrageous act.” Id. at 36. This

was especially true because the defendant “knew when he went to the center that there

would be children present who would witness part of what he planned to do.” Id. We

later clarified that the presence of children is an aggravating sentencing factor only when


                                           D-8
the children “saw, heard, or otherwise witnessed the offense.”            State v. Vance,

765 N.W.2d 390, 394 (Minn. 2009). The same principle that bystanders must witness the

offense or be present when the offense occurs should apply here to foreclose a sentencing

departure.

      In Edwards, the defendant “fired seven times at or toward a group of nine people

in the immediate area, exposing all of them to injury or death . . . . Defendant’s conduct

was particularly serious and represented a greater than normal danger to the safety of

other people.”   774 N.W.2d at 600.      That the defendant placed bystanders at risk

physically when he shot the victim in a public place made this offense particularly

serious. Similarly, the defendant in Mitjans committed murder in a bar, where his shots

placed the other patrons in danger of physical harm. 408 N.W.2d at 834.

      Profit, Edwards, and Mitjans are readily distinguishable from this case because

Rush’s adult daughter was not physically present when the offense of conviction was

committed. Consequently, the majority’s conclusion that a sentencing departure may be

based on emotional harm to third parties who were not present at the scene is

unprecedented. The majority cites State v. Ming Sen Shiue, 326 N.W.2d 648 (Minn.

1982), for the proposition that the trauma caused to a victim’s family by the defendant’s

concealment of a body may justify an aggravated sentencing departure. The majority’s

reliance on Shiue is misplaced because Shiue is distinguishable in an important way. In

Shiue, the defendant concealed the victim’s body and used the concern of the parents and

authorities to bargain for an agreement to avoid prosecution for first-degree murder. 326

N.W.2d at 655. While we recognized that the defendant’s actions caused trauma to the


                                           D-9
victim’s family, our analysis in Shiue was driven by the public policy of discouraging

“[o]ther accused persons” from using the disclosure of a body’s whereabouts “in

negotiating a plea.”3   Id.   We later reaffirmed the importance of the public policy

justification in Schmit when we concluded that, “[b]ecause defendant made no effort to

bargain with information concerning the location of the body, his concealment of the

body does not operate as an aggravating factor in sentencing.” 329 N.W.2d at 58 n.1.

      The majority’s determination that the facts of this case merit a departure also is ill-

founded in light of the Minnesota Sentencing Guidelines. A departure based on harm to

remote third parties is precisely the kind of departure against which the Minnesota

Sentencing Guidelines caution. That Rush’s family suffered greatly because of Hicks’s

actions is readily discernable from the transcript. And no aspect of my legal analysis

minimizes this terrible tragedy. However, if the suffering of individuals other than the

victim justified the determination that a crime was more serious than a typical case, a

departure similar to the one applied to Hicks’s sentence would apply in countless cases,

contrary to the Minnesota Sentencing Guidelines Commission’s instructions. See Minn.

Sent. Guidelines cmt. 2.D.301. Such a departure also violates the principles of

“uniformity, proportionality, rationality, and predictability in sentencing.” Misquadace,


3
       Our analysis in State v. Elkins was driven by another unique public policy
concern—discouraging “the reprehensible scheme of trying to pin the blame on a
completely innocent man.” 346 N.W.2d 116, 119 (Minn. 1984). Moreover, Elkins
involved multiple aggravating sentencing factors. Id. Consequently, Elkins does not
support the majority’s conclusion that a sentencing departure may be based solely on
emotional harm to third parties who were not present at the scene of the crime.




                                           D-10
644 N.W.2d at 67 (quoting Minn. Stat. § 244.09, subd. 5 (2000)). If we conclude that

this defendant’s offense is more serious because it traumatized family members, we also

conclude, however inadvertently, that the murder of an individual without close family

and community ties is a less serious offense. This distinction among victims of violent

crimes not only is fundamentally unfair, but also defeats the principal purpose of the

Minnesota Sentencing Guidelines and results in a sentencing regime that lacks

uniformity, proportionality, and predictability. Moreover, a sentence resulting from this

kind of departure also contradicts the Legislature’s directive to impose sentences that are

connected to the offense conduct. The Legislature has stated that sentences should be

reasonably related to the conduct of the convicted person. Minn. Stat. § 609.01, subd.

1(2).   Similarly, the Minnesota Sentencing Guidelines Commission has said that

“departures from the Guidelines should not be permitted for elements of alleged offender

behavior not within the definition of the conviction offense.” Minn. Sent. Guidelines

cmt. 2.D.203. Hicks was convicted of murder, not concealment. His conduct is the

offense of murder, not the act of concealment. Therefore, the majority errs when it

concludes that the concealment and resulting emotional trauma to the victim’s family and

friends made the commission of the murder more serious and justifies an upward

durational departure.

                                           IV.

        The majority overrules the holding in Schmit, which states: “Because defendant

made no effort to bargain with information concerning the location of the body, his

concealment of the body does not operate as an aggravating factor in sentencing.”


                                          D-11
329 N.W.2d at 58 n.1. In doing so, the analysis of the majority contravenes the doctrine

of stare decisis because the analysis fails to articulate a compelling reason to overrule

Schmit.

       “The doctrine of stare decisis directs us to adhere to our former decisions in order

to promote the stability of the law and the integrity of the judicial process.” Schuette v.

City of Hutchinson, 843 N.W.2d 233, 238 (Minn. 2014). Here, the majority disregards

our extreme reluctance to overrule our precedent absent a compelling reason. State v.

Martin, 773 N.W.2d 89, 98 (Minn. 2009).

       The issue presented in this case—whether concealment of a body, without an

effort to bargain with information concerning the location of the body, constitutes an

aggravating sentencing factor—was squarely addressed in Schmit, 329 N.W.2d at 58 n.1.

In Schmit, we expressly ruled that, “[b]ecause defendant made no effort to bargain with

information concerning the location of the body, his concealment of the body does not

operate as an aggravating factor in sentencing.” Id. When the State asked us to treat our

ruling in Leja as dicta, 684 N.W.2d at 442, four members of the court rejected the State’s

argument that concealment of the body should, by itself, be an aggravating factor

sufficient to justify an upward durational departure. Justice Paul Anderson’s opinion,

which was joined by Justice Page and Justice Hanson, rejected the argument outright,

stating that “Leja’s participation in the concealment of [the victim’s] remains, without

more such as her bargaining with the authorities, does not support an upward durational

departure.” Id. at 450. Justice Russell Anderson concurred specially. He did not reach

the issue of whether concealment, by itself, was an aggravating factor sufficient to justify


                                           D-12
an upward durational departure because he concluded that the concealment was part of a

separate behavioral incident, and consequently, the concealment did not support a

departure from the presumptive sentence for murder. Id. at 451 (Anderson, Russell, J.,

concurring specially). Chief Justice Blatz’s dissent, which was joined by Justices Gilbert

and Meyer, concluded that the concealment was part of the same behavioral incident and

that the concealment alone is an aggravating factor sufficient to justify an upward

durational departure. Id. at 455-57 (Blatz, C.J., dissenting).

       The State now asks us, for the second time in 10 years, to view our ruling in

Schmit as dicta. This time the majority grants the State’s request, adopting the analysis of

the Leja dissent.4 Just like the Leja dissent, the majority relies on State v. Folkers,

581 N.W.2d 321 (Minn. 1998), and State v. Griller, 583 N.W.2d 736 (Minn. 1998).

       In Folkers, we suggested that concealment of a body was an appropriate

aggravating factor because it showed particular cruelty. 581 N.W.2d at 327 (citing Shiue,

326 N.W.2d at 655). But the majority’s rationale for relying on Folkers is faulty. While

we concluded in Folkers that concealing a body fell within the particular-cruelty


4
       The majority argues that its analysis does not implicate the doctrine of stare
decisis because the special concurrence in Leja did not reach the issue of whether
concealment of a body by itself is an aggravating factor. Such an argument fails to
acknowledge that the majority’s conclusion, that Hicks’s act of concealment by itself
may be an aggravating factor, is necessarily predicated on a conclusion that the
concealment was part of the same behavioral incident. Therefore, the majority’s
argument requires not only a rejection of Justice Paul Anderson’s opinion in Leja, but
also a rejection of Justice Russell Anderson’s special concurrence in Leja, which
concluded that the concealment was not part of the same behavioral incident. In my
view, the majority’s analysis, which requires a rejection of the reasoning of four members
of the court, implicates the doctrine of stare decisis.


                                            D-13
aggravating factor, we did not reach the issue subsequently presented and decided in

Schmit—whether concealment of a body, without an effort to bargain with information

concerning the location of the body, was a separate aggravating sentencing factor.

       In Griller, the district court articulated “several reasons for departing from the

presumptive sentence: the concealment of [the victim]’s body, the particular cruelty

Griller used in killing [the victim], and Griller’s ‘chilling lack of remorse’ and ‘persistent

attempts to deny responsibility and shift blame.’ ” 583 N.W.2d at 744 (emphasis added).

In affirming the upward departure, we summarily endorsed the district court’s reasons,

stating: “The Minnesota Sentencing Guidelines and precedent support the use of these

factors to impose an upward departure.” Id. (emphasis added). We placed the authority

for our endorsement in a footnote that reads:

       See Minnesota Sentencing Guidelines II.D.2.b (aggravating factors); State
       v. Folkers, 581 N.W.2d 321 (Minn. 1998) (concealment of body, remorse,
       and attempt to shift blame); [Rairdon v. State, 557 N.W.2d 318, 327 (Minn.
       1996)] (particular cruelty); State v. Ming Sen Shiue, 326 N.W.2d 648, 655
       (Minn. 1982) (concealment of body).

Id. at 744 n.29. Admittedly, at first glance, the parenthetical descriptions of Folkers and

Shiue in the Griller footnote could be read as suggesting that concealment of a body is by

itself an aggravated sentencing factor. However, when one reads the decisions in Folkers

and Shiue, it is abundantly clear that we did not hold that concealment is by itself an

aggravated sentencing factor. Consequently, the majority’s reliance on Griller also is

misplaced.

       In sum, the majority has not articulated a compelling reason to overrule Schmit

because our reasoning in Folkers and Griller is consistent with Schmit. Moreover, the


                                            D-14
only change since the court rejected the dissent’s analysis in Leja is the composition of

the court. In the absence of a compelling reason, the majority’s decision to overrule

Schmit contravenes the doctrine of stare decisis. By ignoring the doctrine of stare decisis,

the majority destabilizes the law and calls into question the integrity of the judicial

process. For these reasons, I decline to join in the majority’s decision to overrule Schmit.

                                              V.

       The majority’s decision upholds a sentencing departure based on a separate,

uncharged offense, imprudently concludes that concealment of a murder victim’s body

may serve as the sole basis for an upward durational departure, forsakes the doctrine of

stare decisis, and overrules our precedent in Schmit. By doing so, the majority abandons

the fundamental principles of sentencing—uniformity, proportionality, rationality, and

predictability. Therefore, I respectfully dissent.



PAGE, Justice (dissenting).

       I join in the dissent of Justice Wright.




                                            D-15
