                           This opinion will be unpublished and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
                                       A13-1949

                                     State of Minnesota,
                                         Respondent,

                                              vs.

                                    Jonathan Lee Closner,
                                          Appellant.

                                   Filed August 25, 2014
                                         Affirmed
                                      Chutich, Judge

                               Goodhue County District Court
                                  File No. 25-CR-13-131

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

Stephen N. Betcher, Goodhue County Attorney, Christopher Schrader, Assistant County
Attorney, Red Wing, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Halbrooks, Presiding Judge; Ross, Judge; and Chutich,

Judge.

                          UNPUBLISHED OPINION

CHUTICH, Judge

         Appellant Jonathan Closner contends that the district court abused its discretion by

sentencing him to an upward durational sentencing departure after he pleaded guilty to
attempted second-degree murder because (1) he did not properly waive his right to a

Blakely hearing and (2) the district court improperly relied on facts that were essential

elements of attempted second-degree intentional murder and of charges that were

dismissed by the state. Because Closner validly waived his right to a Blakely hearing and

the district court did not abuse its discretion in finding that the victim was particularly

vulnerable during the attack, we affirm.

                                           FACTS

       In January 2013, appellant Jonathan Closner entered his house in Zumbrota in

violation of an order for protection obtained against him by his wife. Closner suspected

that his wife was having an intimate relationship with D.Y. When Closner entered the

house, he saw D.Y.’s baseball hat. Closner then went to his toolbox to get a hammer.

While carrying the hammer, he went to the bedroom and saw D.Y. and his wife in bed.

Closner observed that D.Y. was asleep before he hit D.Y. in the head multiple times with

the hammer.

       As a result of this attack, doctors had to remove part of D.Y.’s skull, amputate part

of his brain, and replace part of his skull with a titanium prosthesis. The chief resident of

the neurosurgery department said that “this was one of the most serious head injuries he’s

seen for the past seven years.” D.Y. spent two months in the hospital, two months in a

rehabilitation center, and attends “occupational therapy, physical therapy, and speech

therapy three times a week for three hours a day, on top of working on it at home, so [he]

can learn to talk again, read again, move, and use [his] right arm.”




                                             2
       The state charged Closner with attempted first-degree premeditated murder,

attempted first-degree felony murder, attempted second-degree intentional murder, first-

degree assault, first-degree burglary, second-degree assault, and violation of an order for

protection. See Minn. Stat. § 518B.01, subd. 14(a); Minn. Stat. § 609.17, subd. 1; Minn.

Stat. § 609.185(a)(1), (3); Minn. Stat. § 609.19, subd. 1(1); Minn. Stat. § 609.221, subd.

1; Minn. Stat. § 609.222, subd. 1; Minn. Stat. § 609.582, subd. 1(c) (2012). Closner

pleaded guilty to attempted second-degree intentional murder, and the state dismissed the

six remaining charges as part of the plea agreement.

       The plea agreement stipulated that Closner would serve 212 months’

imprisonment, an upward durational departure of 16 months.            As part of the plea

agreement, Closner waived his right to a jury finding facts supporting the aggravating

sentencing factors and admitted that the following factors were present in his case:

              A. That the victim suffered a serious permanent injury as a
              result of assault;
              B. That the victim was particularly vulnerable at the time the
              defendant assaulted him;
              C. That the victim was treated with particular cruelty at the
              time of the assault; and,
              D. That the offense was committed in a location where the
              victim had [an] expectation of privacy, that there was a zone
              of privacy, that it was a protected area in the sense that there
              was an Order For Protection in place.

       The district court accepted Closner’s guilty plea, found that the four agreed-upon

aggravating sentencing factors were present in his case, and imposed the agreed-upon

sentence of 212 months’ imprisonment. This appeal followed.




                                             3
                                       DECISION

                                  I.     Blakely Waiver

       Closner asserts that the district court improperly sentenced him to an upward

durational departure because he did not properly waive his right to a Blakely hearing on

the aggravating sentencing factors used by the district court to support the departure. See

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The state responds, and we

agree, that Closner waived his right to a Blakely hearing orally on the record and also by

reviewing and signing a Blakely-hearing written waiver discussing the aggravating

sentencing factors before the plea hearing.

       Under the Supreme Court’s holding in Blakely v. Washington, a criminal

defendant has a right to a jury trial on facts used by a district court to support an upward

sentencing departure. 542 U.S. at 303, 124 S. Ct. at 2537; State v. Shattuck, 689 N.W.2d

785, 786 (Minn. 2004) (applying Blakely in Minnesota). A defendant’s waiver of a

Blakely hearing “must be supported in the same manner as a waiver of a jury trial on the

elements of the offense; knowingly, voluntarily, and intelligently.” State v. Barker, 705

N.W.2d 768, 773 (Minn. 2005). We review the validity of a Blakely-hearing waiver de

novo. See, e.g., State v. Dettman, 719 N.W.2d 644, 651–52 (Minn. 2006) (applying de

novo review to purported Blakely waiver).

       The record supports the district court’s acceptance of Closner’s Blakely-hearing

waiver. At the beginning of the plea hearing, Closner’s attorney explained that Closner

would be pleading guilty to attempted second-degree murder, the state would be

dismissing the remaining charges, and Closner had agreed to a sentence of 212 months’


                                              4
imprisonment, “an upward durational departure of approximately 16 months.”             The

prosecutor then specified on the record that the plea agreement called for Closner to agree

that D.Y. “suffered a serious permanent injury as a result of the assault”; that D.Y. was

“particularly vulnerable” at the time of the assault; that Closner treated D.Y. with

“particular cruelty” during the assault; and that “the offense was committed in a location

where [D.Y.] had [an] expectation of privacy.”

       Before establishing the factual basis for attempted second-degree murder,

Closner’s attorney stated to Closner, “And you understand that [the] agreed prison

sentence is approximately 16 months over and above what is typically called for under

the sentencing guidelines for this offense, were you to be convicted of it, with one

criminal history point; is that correct?” Closner responded, “Yes.”

       After establishing the factual basis for attempted second-degree murder, Closner

admitted that he “acted with particular cruelty”; that D.Y. was “asleep” and “particularly

vulnerable” at the time of the attack; that he “entered the residence after having been

court ordered not to do so”; and that D.Y. “sustained very serious grievous bodily injuries

because of [his] conduct that day that is more likely than not going to affect [D.Y.] the

rest of his life.” The following exchange then took place between Closner and his

attorney about his Blakely-hearing rights:

              Q: Now, with regards to the aggravating factors that [the
              prosecutor] and I have discussed on the record, you
              understand that, if we were to go to trial, those aggravating
              factors would be the subject of a separate sentencing trial.
              We discussed that, correct?
              A: Yes.



                                             5
Q: And you understand that the State would have to prove to
the jury, and that jury would have to be unanimous in its
verdict, that the State had proven those aggravating factors by
proof beyond a reasonable doubt. Do you understand that?
A: Yes.
Q: You understand that by admitting to engaging in those acts
and that you have conducted yourself in such a way to have
committed this offense with those aggravating factors being
present that you’re giving up your right to have that separate
sentencing trial with regards to the aggravating factors; is that
correct?
A: Yes.
Q: Now, all of those trial rights that we’ve discussed, your
right to remain silent, your right to be presumed innocent, the
right to a unanimous verdict in the jury, your right to
challenge the State’s evidence with an attorney to assist you,
your right to present evidence in your own defense at the
sentencing phase of the trial, you understand you have all
those rights with regards to that sentencing phase of the trial
on the issue of aggravating factors; is that correct?
A: Yes.
Q: You are now agreeing to those aggravating factors being
present here today; is that correct?
A: Yes.
Q: And you’re doing so freely and voluntarily?
A: Yes.
Q: And you’re giving up your right to have that separate
sentencing trial; is that correct?
A: Yes.
Q: And you’re relieving the State of its burden of having to
prove those aggravating factors by proof beyond a reasonable
doubt to a trial by jury?
A: Yes.
Q: Now, I am turning your attention to this document entitled
petition regarding aggravated sentence. Do you recognize
this document?
A: Yes.
Q: This is a two-page document that you and I discussed prior
to our appearance here today; is that correct?
A: Yes.
Q: And we went through this document line by line; is that
correct?
A: Yes.


                               6
              Q: And after we did so, you signed the document; is that
              correct?
              A: Yes.
              ...
              Q: Do you have any questions of what we’ve done here
              today?
              A: No.
              Q: And all your decisions that you made today, are they free
              and voluntary?
              A: Yes.

       The plea hearing as a whole demonstrates that Closner understood and waived his

right to a Blakely hearing based on the petition he signed before the hearing; that both his

attorney and the prosecutor explained the plea agreement, the upward durational

sentencing departure, and the aggravating sentencing factors on the record; and that

Closner orally waived his rights to a Blakely hearing “knowingly, voluntarily, and

intelligently” on the record. See Barker, 705 N.W.2d at 773.

       Closner contends that the district court improperly relied on Closner’s factual

admissions given before he orally waived his right to a Blakely hearing to support the

aggravating sentencing factors. Closner relies on Minnesota Rule of Criminal Procedure

26.01, subdivision 1(2)(b), and State v. Dettman, 719 N.W.2d at 654, to support this

argument. Minnesota Rule of Criminal Procedure 26.01, subdivision 1(2)(b), states:

              Where the prosecutor seeks an aggravated sentence, the
              defendant, with the approval of the court, may waive a jury
              trial on the facts in support of an aggravated sentence
              provided the defendant does so personally, in writing or on
              the record in open court, after being advised by the court of
              the right to a trial by jury, and after having had an opportunity
              to consult with counsel.




                                             7
The record shows that the district court complied with the requirements of rule 26.01,

subdivision 1(2)(b), because Closner signed a Blakely-hearing-waiver petition before the

plea hearing and also orally waived his right to a Blakely hearing during the plea hearing.

       In Dettman, the supreme court held “that a defendant must expressly, knowingly,

voluntarily, and intelligently waive his right to a jury determination of facts supporting an

upward sentencing departure before his statements at his guilty-plea hearing may be used

to enhance his sentence.” 719 N.W.2d at 650–51. Contrary to Closner’s statements in

his brief, Dettman does not hold that “a separate factual basis must be established

following the Blakely-waiver.” Instead, it holds that a defendant’s factual admissions

from a plea hearing can be used to support an upward sentencing departure as long as the

defendant has “expressly, knowingly, voluntarily, and intelligently” waived his right to a

Blakely hearing. Id. at 650–51, 655 (“[I]n the absence of a knowing waiver of his Sixth

Amendment right to a jury determination of facts supporting an upward sentencing

departure, Dettman’s statements at his plea hearing cannot be used as admissions to

enhance his sentence.”).

       Closner also contends that Miranda waivers and Blakely waivers have the same

legal requirements, but no Minnesota law exists to support his assertion. Because a

Miranda waiver serves a different purpose than a Blakely waiver—to protect against self-

incrimination—we are not persuaded by this contention. See Miranda v. Arizona, 384

U.S. 436, 469, 86 S. Ct. 1602, 1625 (1966). We hold that Closner “expressly, knowingly,

voluntarily, and intelligently” waived his right to a Blakely hearing. See Dettman, 719

N.W.2d at 650–51.


                                             8
                              II.    Upward Sentencing Departure

       Closner contends that the district court abused its discretion by supporting the

upward durational sentencing departure using facts that were essential elements of

attempted second-degree intentional murder and of charges that were dismissed by the

state. Because the district court properly found that D.Y. was particularly vulnerable

during the attack, we hold that the district court did not abuse its discretion.

       We review the district court’s decision to impose a sentencing departure for an

abuse of discretion. State v. Jackson, 749 N.W.2d 353, 356–57 (Minn. 2008). A district

court abuses that discretion when insufficient evidence exists in the record to justify a

departure or when the district court bases the departure on improper considerations. See

id. at 357. “[I]f a district court’s reasons for a departure are stated on the record, an

appellate court must determine whether the stated reasons justify the departure.” State v.

Grampre, 766 N.W.2d 347, 351 (Minn. App. 2009), review denied (Minn. Aug. 26,

2009). We must determine whether the reasons provided are legally permissible and

factually supported by the record. See State v. Edwards, 774 N.W.2d 596, 601–02

(Minn. 2009).

       A district court can depart from a presumptive-guidelines sentence if it finds that

substantial and compelling circumstances warrant the departure. State v. Misquadace,

644 N.W.2d 65, 69 (Minn. 2002). Substantial and compelling circumstances exist when

“the facts of a particular case [are] different from a typical case” of the same type. Taylor

v. State, 670 N.W.2d 584, 587–88 (Minn. 2003).             Departures cannot be based on

elements of the underlying crime, on uncharged or dismissed offenses, on conduct for


                                               9
which the defendant was acquitted, or on conduct for which the defendant was separately

convicted. State v. Jones, 745 N.W.2d 845, 849 (Minn. 2008). The presence of a single

aggravating factor is sufficient to support an upward departure. State v. Mohamed, 779

N.W.2d 93, 97 (Minn. App. 2010), review denied (Minn. May 18, 2010).

         Applying these principles, we hold that the district court properly relied on the

particular vulnerability of the victim as an aggravating sentencing factor to support

Closner’s upward sentencing departure because D.Y. was asleep when Closner attacked

him.1 The district court may impose an upward sentencing departure when “[t]he victim

was particularly vulnerable due to . . . reduced physical or mental capacity, and the

offender knew or should have known of this vulnerability.” Minn. Sent. Guidelines

2.D.3.b(1) (2012). A particular vulnerability “impairs the victim’s ability to seek help,

fight back, or escape harm.” Mohamed, 779 N.W.2d at 98. Minnesota law recognizes

that victims are particularly vulnerable when they are asleep because they are unable to

immediately run away or defend themselves against an aggressor. See State v. Yaritz,

791 N.W.2d 138, 145 (Minn. App. 2010), review denied (Minn. Feb. 23, 2011); State v.

Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990), review denied (Minn. Feb. 28, 1990).

         It is undisputed that D.Y. was asleep at the time that Closner attacked him.

Because D.Y. was asleep at the time of the attack, he had no opportunity to react to

Closner entering the home, approaching him, and repeatedly pounding his head with a

hammer. See Mohamed, 779 N.W.2d at 98. Because only one aggravating factor is

needed to support this upward sentencing departure of sixteen months, we need not

1
    In his brief, Closner did not address this basis for departure.

                                                10
address the district court’s reliance on the three other factors. See id. at 97. For these

reasons, we conclude that the district court did not abuse its discretion by relying on

D.Y.’s particular vulnerability of being asleep to support the agreed-upon upward

sentencing departure.

      Affirmed.




                                           11
