Opinion
No. C4-97-1144.
Filed December 2, 1997.
Appeal from the District Court, Ramsey County, File No. K4-95-1846.
Hubert H. Humphrey III, Attorney General, (for respondent).
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Karen A. MacLaughlin, Certified Student Attorney, (for respondent).
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, (for appellant).
Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Benjamin Ferriere challenges his 60-month sentence, arguing that the trial court abused its discretion when it imposed an upward durational departure and denied appellant's motion to correct his sentence arising from his conviction of second-degree criminal sexual conduct. Because the trial court's reasons for departure were supported by the record and were not elements of the offense, the sentence may stand. We affirm.
DECISION
Ferriere contends the trial court abused its discretion when it used elements of the offense as reasons for departure. The trial court has broad discretion to depart only if aggravating or mitigating circumstances exist; "if aggravating or mitigating circumstances are not present, the trial court has no discretion to depart." State v. Best , 449 N.W.2d 426, 427 (Minn. 1989). On appeal, this court examines the record to see whether the trial court's reasons justify departure from the presumptive sentence. Williams v. State , 361 N.W.2d 840, 844 (Minn. 1985). The trial court may not use an element of the offense as an aggravating factor for departure. See State v. Cermak , 344 N.W.2d 833, 839 (Minn. 1984) (citing State v. Brusven , 327 N.W.2d 591, 593 (Minn. 1982)).
As a procedural matter, the state contends that appellant waived his right to appeal his sentence by failing to file a notice of appeal within 90 days of sentencing or by failing to object when his sentence was executed at his probation revocation hearing. See Minn.R.Crim.P. 28.05, subd. 1(1) (allowing appeal only within 90 days of sentencing); see also Minn.R.Crim.P. 27.03, subd. 9 (allowing court to reduce sentence any time during stay). Trial courts may not reduce a sentence once a defendant has begun serving it. State v. Hockensmith , 417 N.W.2d 630, 633 (Minn. 1988). Appellant has now moved to modify his sentence, after his stay has ended and his probation has been revoked. Consequently, now that appellant has begun serving his sentence, the trial court did not have the discretion to modify his sentence. Id. Nevertheless, we may address appellant's issue in the interests of justice as a postconviction appeal. See State v. Stutelberg , 435 N.W.2d 632, 635 (Minn.App. 1989) (holding that Minn.R.Crim.P. 27.03, subd. 9, did not prohibit court from reaching merits of appeal where defendant had not yet had his sentence reviewed on the merits, even though he had prior appeals).
Ferriere pleaded guilty to second-degree criminal sexual conduct, which occurs when the offender has a significant relationship with the victim, the victim is under 16 years of age, and the sexual contact involved multiple acts over an extended period of time. Minn. Stat. § 609.343, subd. 1(h) (1996). Second-degree criminal sexual conduct of this nature is a level VII offense. The presumptive sentence with Ferriere's zero criminal history score is 48 months. Minn. Sent. Guidelines IV, V. The trial court imposed a 60-month sentence, an upward durational departure. As one reason for departure, the trial court found that appellant engaged in "multiple types of criminal sexual contact" with the victim.
Contrary to Ferriere's argument, this aggravating factor was a valid basis for departure. Multiple types of sexual contact constitute a valid aggravating factor to support an upward durational departure in sentence. See State v. Brown , 406 N.W.2d 530, 534 (Minn.App. 1987) (relying on multiple forms of contact), review denied (Minn. July 15, 1987). Ferriere erroneously focuses on the statutory element of "multiple acts" of abuse under Minn. Stat. § 609.343, subd. 1(h)(iii). Ferriere admitted that he committed multiple types of sexual contact against his daughter when he touched both her breasts and her genitalia. The trial court's reason for departure was not an element of the crime.
In addition, the record presents other reasons for an upward durational departure. See Williams , 361 N.W.2d at 844 (allowing appellate court to examine record to find reasons to justify departure). S.F. reported to her pastor that, during her 7th through 9th grade years, Ferriere consistently made degrading comments about her body and, during the last incident of abuse, Ferriere threatened S.F.'s life if she reported the abuse. See State v. Allen , 482 N.W.2d 228, 233 (Minn.App. 1992) (holding that court may consider taunts, threats, and degradation of victim as aggravating circumstances to justify departure), review denied (Minn. Apr. 13, 1992).
Ferriere next contends that his conduct toward his daughter was "typical of intrafamial sexual abuse" and was not more serious or egregious than conduct typically involved in such an offense. Ferriere's conduct, however, violated two different sections of the criminal code. The violation of more than one subsection of a criminal sexual conduct statute constitutes an aggravating factor that justifies a sentencing departure. Ture v. State , 353 N.W.2d 518, 522 (Minn. 1984). Because Ferriere was in both a significant relationship with the victim and in a position of authority over the victim, his misconduct actually constituted violation of Minn. Stat. § 609.343, subd. 1(b) (defendant used position of authority to cause victim to submit) and subd. 1(h)(iii) (significant relationship and multiple acts).
The trial court did not abuse its discretion when it sentenced Ferriere to an upward durational departure. The record contains sufficient reasons to support the trial court's decision.