State of Minnesota v. Theodore Pierre Jerry ( 2016 )

This opinion will be unpublished and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
A16-0006
State of Minnesota,
Respondent,
vs.
Theodore Pierre Jerry,
Appellant.
Filed August 29, 2016
Affirmed
Smith, Tracy M., Judge
Hennepin County District Court
File No. 27-CR-13-3541
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Erik Irving Withall, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Smith, Tracy M., Presiding Judge; Worke, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
SMITH, TRACY M., Judge
Appellant Theodore Pierre Jerry appeals the district court’s imposition of an upward
durational departure on his conviction of third-degree criminal sexual conduct to be served
consecutively to his sentence for first-degree burglary. Jerry contends that (1) the zone-of-
privacy aggravating factor was a legally impermissible basis for the upward durational
departure, (2) the district court could not impose an upward durational departure and
consecutive sentence without finding two or more aggravating factors, (3) the district court
was prohibited from imposing an upward durational departure on remand because of the
law-of-the-case doctrine, and (4) the upward durational departure violates the prohibition
against harsher sentences on remand. We affirm.
FACTS
Following an incident on January 1, 2013, respondent State of Minnesota charged
Jerry with first-degree burglary-assault and third-degree criminal sexual conduct
committed with force or coercion. Jerry waived his right to a jury trial, and a bench trial
was held on both charges. After the trial, the district court found that on the early morning
of January 1, 2013, Jerry entered S.E.’s home without permission and that S.E. awoke at
approximately 5:00 a.m. “to a man standing over her in her bedroom.” The district court
further found that Jerry “grabbed S.E. by her forearms and used force to push her up against
the bedroom wall” before eventually forcing S.E. “back onto her bed” and inserting his
tongue and penis into S.E.’s vagina without her consent. Consequently, the district court
found Jerry guilty of first-degree burglary and third-degree criminal sexual conduct
committed with force or violence.
Before trial, the state gave notice of its intent to seek an upward durational departure
based on the offenses having been “committed in a location in which the victim had an
expectation of privacy.” Jerry waived his right to have a jury determine the existence of
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aggravating factors in a Blakely trial. At the hearing on the aggravating-factor issue, the
state argued that Jerry violated “the victim’s zone of privacy” because he committed the
crimes in S.E.’s home and bedroom. Jerry argued that the zone-of-privacy aggravating
factor could not be considered because it was “within the element of the conviction for the
burglary.” The district court found that Jerry violated S.E.’s zone of privacy when he
sexually assaulted her in her bedroom.
A presentence investigation was completed, and the report recommended that Jerry
be sentenced to the “maximum [sentence] allowed by the [s]entencing [g]uidelines.” The
report recommended sentencing Jerry first to a 129-month sentence for the first-degree
burglary and second to a 57-month consecutive sentence for the third-degree criminal
sexual conduct, resulting in a total sentence of 186 months.
At the sentencing hearing, the state argued that the burglary “was predicated on the
criminal sexual conduct charge” and that the district court therefore should sentence the
third-degree criminal-sexual-conduct conviction first and the first-degree burglary
conviction second. The state requested that Jerry receive a 180-month sentence for
criminal sexual conduct and a 57-month consecutive sentence for first-degree burglary, a
total of 237 months. The state also discussed the alternatives it had presented in its
sentencing memorandum, including the possibility that the district court impose an upward
durational departure on the criminal-sexual-conduct conviction based on the zone-of-
privacy aggravating factor. Before announcing Jerry’s sentence, the district court heard
S.E.’s victim impact statement in which she stated that her “home, which should have been
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my haven, no longer feels safe. When I go to bed at night, I suffer panic attacks and wake
often during the night because I feel like I have someone standing over me.”
The district court agreed with the state that the third-degree criminal sexual conduct
“was completed before and as a necessary part” of the first-degree burglary conviction.
The district court therefore sentenced Jerry first to 180 months for third-degree criminal
sexual conduct and second to a 57-month consecutive sentence for first-degree burglary.
The district court stated that it was not making an upward durational departure from the
sentencing guidelines and was not considering the zone-of-privacy aggravating factor. But
the district court observed that Jerry’s conduct was “absolutely outrageous in this case.”
Jerry appealed, arguing that the district court erred because it sentenced him in the
wrong order. State v. Jerry, 864 N.W.2d 365, 368 (Minn. App. 2015), review denied
(Minn. Sept. 15, 2015). We reversed and remanded, holding that Jerry “should have been
sentenced for first-degree burglary first and third-degree criminal sexual conduct second.”
Id. at 369-70. We reasoned that the burglary was complete upon entry into S.E.’s home,
and, even if the burglary was not complete until an assault occurred, Jerry committed
another assault before he committed criminal sexual assault, thus completing the burglary.
Id. at 368-69.
On remand, Jerry contended that the district court could not impose an upward
durational departure because it did not depart when it first sentenced him. Jerry also
contended that the district court could not base an upward durational departure on the zone-
of-privacy aggravating factor because it was an element of his burglary conviction. The
state contended that the district court did not foreclose an upward durational departure at
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the first sentencing and that the district court could depart upward based on the previously
found zone-of-privacy aggravating factor and was limited only by the aggregate 237-month
term to which Jerry was initially sentenced.
The district court imposed a 129-month sentence for first-degree burglary (the top
of the presumptive guidelines range) and a 96-month consecutive sentence for third-degree
criminal sexual conduct (an upward durational departure), resulting in a total sentence of
225 months. The district court based the upward durational departure on the zone-of-
privacy aggravating factor because the criminal sexual conduct occurred in S.E.’s
bedroom.
Jerry appeals.
DECISION
“We review a district court’s decision to depart from the presumptive guidelines
sentence for an abuse of discretion.” State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015).
We review de novo the legal question of whether a particular reason for an upward
departure is permissible. State v. Grampre, 766 N.W.2d 347, 350 (Minn. App. 2009),
review denied (Minn. Aug. 26, 2009). Interpreting the sentencing guidelines also presents
an issue of law subject to de novo review. State v. Williams, 771 N.W.2d 514, 520 (Minn.
2009). “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) (quotation omitted).
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A. Basis for Departure
Jerry contends that the district court impermissibly based the upward durational
departure on the zone-of-privacy aggravating factor.
A district court is obligated to impose a sentence provided in the sentencing
guidelines unless there are “identifiable, substantial, and compelling circumstances” to
justify an upward departure from the guidelines. Minn. Sent. Guidelines 2.D.1 (2012).
Such circumstances show “that the defendant’s conduct was significantly more . . . serious
than that typically involved in the commission of the offense in question.” Edwards, 774
N.W.2d at 601. Commission of an offense “in a location in which the victim had an
expectation of privacy” is included in the sentencing guidelines’ nonexclusive list of
aggravating factors that may support an upward durational departure. Minn. Sent.
Guidelines 2.D.3.b(14) (2012).
Jerry contends that the zone-of-privacy aggravating factor was an impermissible
basis for departure because it was an element of an uncharged offense—first-degree
burglary committed in an occupied dwelling under Minn. Stat. § 609.582, subd. 1(a)
(2012)—and relies primarily on State v. Jackson, 749 N.W.2d 353 (Minn. 2008). In
Jackson, the supreme court reversed an upward durational departure because the departure
was based on uncharged criminal conduct, leading to the concern that prosecuting
authorities could manipulate the sentencing guidelines by bringing lesser charges than
permitted by the operative facts in order to use those facts as aggravating factors at
sentencing. See 749 N.W.2d at 357-58; see also Hicks, 864 N.W.2d at 161-62 (confirming
that a concern in Jackson was “the possibility that the sentencing guidelines could be
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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”); Edwards, 774 N.W.2d at 606 (stating that the concern in Jackson
was that the prosecution was “manipulating” the sentencing guidelines).
Jerry’s reliance on Jackson is misplaced. Minnesota Statutes section 244.10,
subdivision 5a(b) (2012), enacted after Jackson, provides that “[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.” (Emphasis added.) The statute applies to crimes committed on or after
August 1, 2009. 2009 Minn. Laws ch. 59, art. 5, § 8, at 367. Following the unambiguous
statutory language, the supreme court recently held that section 244.10, subdivision 5a(b),
“allows the district court to impose a sentence beyond the presumptive range based on any
aggravating factor, even if the aggravating factor is part of the same course of conduct as
another offense.” State v. Fleming, ___ N.W.2d ___, ___, No. A14-2187, slip op. at 1
(Minn. Aug. 17, 2016).1 Given the language of section 244.10, subdivision 5a(b), and the
1
The supreme court previously recognized section 244.10, subdivision 5a(b)’s, impact on
Jackson. See Hicks, 864 N.W.2d at 162 n.7 (noting that the “[l]egislature has apparently
limited the impact of Jackson”); Tucker v. State, 799 N.W.2d 583, 593 n.1 (Minn. 2011)
(Anderson, J., concurring) (noting that the legislature “statutorily overruled the restriction
adopted in Jackson” when it promulgated section 244.10, subdivision 5a(b)). In Fleming,
however, the supreme court declined to address the statute’s legislative history and its
effect on sentencing caselaw because the statute’s plain language resolved the issue before
the court. See Fleming, slip op. at 10 n.6. As in Fleming, the statute’s plain language
controls here. See id.
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supreme court’s holding in Fleming, we conclude that the district court permissibly based
the upward departure for criminal sexual conduct on Jerry’s invasion of S.E.’s zone of
privacy. See id.
We agree with the district court’s determinations that “[c]riminal sexual conduct
offenses do not always occur in the victim’s bedroom,” that Jerry’s conduct was
“egregious,” and that the zone-of-privacy aggravating factor provided a sufficient basis for
departure. See State v. Kindem, 338 N.W.2d 9, 17-18 (Minn. 1983) (stating that a
permissible basis for departure is when the criminal, “in committing a crime such as rape
or robbery, invades the zone of privacy that surrounds the victim’s home”); State v.
Titworth, 381 N.W.2d 510, 512 (Minn. App. 1986) (“Invasion of the victim’s zone of
privacy justifies a departure because it puts the victim in constant fear for her safety
whenever she is at home or in the surrounding area.”), review denied (Minn. Apr. 18, 1986).
In addition, although Jerry does not explicitly raise the issue, we conclude that the district
court’s finding of violation of the victim’s zone of privacy was factually supported by the
record. See Edwards, 774 N.W.2d at 601. Jerry broke into S.E.’s home in the early
morning hours, woke S.E. in her bedroom, and sexually assaulted her there.
Because the district court permissibly considered the zone-of-privacy aggravating
factor and the record supports the imposition of an upward departure, we discern no abuse
of discretion. See id.
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B. Number of Aggravating Factors Required to Impose an Upward Durational
Departure and a Consecutive Sentence
Jerry further contends that, even if the district court could consider the zone-of-
privacy aggravating factor, more than one aggravating factor is required to impose an
upward durational departure and a consecutive sentence. Jerry’s argument relies on a
comment to the sentencing guidelines:
Consecutive sentences are permissive for multiple
current felony convictions even when the offenses involve one
victim and a single course of conduct, but only when the
presumptive disposition is commitment. However,
consecutive sentencing is not permissive for multiple current
felony convictions involving one victim and a single course of
conduct if the court is giving an upward durational departure
on any of the current conviction offenses. The Commission
believes that to give both an upward durational departure and
a consecutive sentence when the circumstances involve one
victim and a single course of conduct can result in
disproportional sentencing unless additional aggravating
factors exist to justify the consecutive sentence.
Minn. Sent. Guidelines cmt. 2.F.204 (2012).
The advisory comment is not binding authority. Asfaha v. State, 665 N.W.2d 523,
526 (Minn. 2003). Furthermore, Jerry’s argument fails under existing caselaw and the text
of the sentencing guidelines. In State v. Daniels, we rejected an appellant’s reliance on
comment 2.F.204 (then listed as comment II.F.204) and caselaw to support the proposition
that the district court could not impose an upward departure and a consecutive sentence
without finding “severe aggravating circumstances.” 765 N.W.2d 645, 651-52 (Minn.
App. 2009), review denied (Minn. Aug. 11, 2009). We recognized that comment 2.F.204
and other caselaw cited by the appellant supported his argument but stated that “they do
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not represent the law under which [the] consecutive sentences were imposed.” Id. at 651.
We determined that because the imposition of consecutive sentences for kidnapping and
robbery convictions occurring in the same course of conduct as a conviction of criminal
sexual conduct committed with force or violence was not a departure under the sentencing
guidelines and Minn. Stat. § 609.035, subd. 6 (2006), the district court was not required to
find “severe aggravating circumstances” to impose both consecutive sentences and an
upward durational departure. Id. at 651-52; see also State v. Castillo-Alvarez, 820 N.W.2d
601, 624 (Minn. App. 2012) (stating that severe aggravating factors were not required to
impose an upward durational departure and consecutive sentence because imposing a
consecutive sentence “was not a departure under the guidelines”), aff’d, 836 N.W.2d 527
(Minn. 2013).
The reasoning from Daniels applies here. The sentencing guidelines
unambiguously provide that “[c]onsecutive sentences are permissive (may be given
without departure)” in certain situations. Minn. Sent. Guidelines 2.F.2.a (2012). One of
those situations is the imposition of consecutive sentences for first through fourth degree
criminal sexual conduct committed with force or violence and another crime committed in
the same course of conduct. Minn. Sent. Guidelines 2.F.2.a(2)(iii) (2012); see also Minn.
Stat. § 609.035, subd. 6 (2012) (providing that consecutive sentences “are not a departure”
when sentencing for criminal sexual conduct committed with force or violence and “any
other crime committed by the defendant as part of the same conduct”). The guidelines also
provide for permissive consecutive sentences for certain enumerated felonies, including
third-degree criminal sexual conduct and first-degree burglary. See Minn. Sent. Guidelines
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2.F.2.a(1)(ii), 6.A (2012). Because Jerry was convicted of third-degree criminal sexual
conduct committed with force or violence and first-degree burglary arising out of the same
course of conduct, the consecutive sentence was not a departure and the district court was
not required to cite more than one aggravating factor to impose an upward durational
departure and consecutive sentence. See Daniels, 765 N.W.2d at 651-52.
C. Law of the Case
Jerry also contends that the law-of-the-case doctrine prohibited the district court
from imposing an upward durational departure on remand because the district court
“overruled its prior legal conclusion that [Jerry’s] conduct was not significantly more
serious than the conduct typically involved in the crimes.”
The law-of-the-case doctrine “applies to issues decided in earlier stages of the same
case.” State v. Miller, 849 N.W.2d 94, 98 (Minn. App. 2014) (quotation omitted). The
doctrine is a discretionary doctrine followed by appellate courts to promote finality of
appellate decisions, and the doctrine generally applies where an appellate court has decided
a legal issue and remanded; a district court does not generally apply the law-of-the-case
doctrine to its own prior decisions. Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994);
see also Kornberg v. Kornberg, 542 N.W.2d 379, 386 n.2 (Minn. 1996) (noting that the
law-of-the-case doctrine “is not normally applied by a district court to its own decisions”
(citing Loo, 520 N.W.2d at 744 n.1)). “The doctrine provides that when a court decides
upon a rule of law, that decision should continue to govern the same issues in subsequent
stages in the same case.” Miller, 849 N.W.2d at 98 (quotations omitted).
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The law-of-the-case doctrine did not bar the district court from imposing an upward
durational departure on remand. In Jerry’s first appeal, we held that the district court erred
in the order of sentencing and remanded for “proceedings not inconsistent with this
opinion,” but we did not rule that the district court was prohibited from imposing an upward
durational departure on remand. Jerry, 864 N.W.2d at 369. Additionally, as the supreme
court has observed, the law-of-the-case doctrine is typically inapplicable to a district
court’s own decisions. See Loo, 520 N.W.2d at 744 n.1. And, even if it were applicable
here, our review of the record has not revealed an unequivocal ruling by the district court
that Jerry’s criminal conduct was no more serious than that involved in the typical
commission of third-degree criminal sexual conduct. Therefore, the law-of-the-case
doctrine did not preclude the district court from imposing an upward durational departure
on the third-degree criminal-sexual-conduct conviction. See Miller, 849 N.W.2d at 98.
D. More Severe Sentence on Remand
Jerry also contends that the upward durational departure violates the rule against
more severe sanctions following remand.
In State v. Prudhomme, the supreme court held that a district court is prohibited
from exceeding the length of the original sentence for a particular crime when resentencing
on remand. 303 Minn. 376, 380, 228 N.W.2d 243, 246 (1975); accord State v. Delk, 781
N.W.2d 426, 429 (Minn. App. 2010), review denied (July 20, 2010). The rule is not based
on constitutional grounds but on “procedural fairness and principles of public policy.”
Prudhomme, 303 Minn. at 380, 228 N.W.2d at 246.
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The district court originally imposed a 180-month sentence for criminal sexual
conduct. On remand, the district court imposed an upward durational departure, but the
total sentence for criminal sexual conduct was 96 months—84 months shorter than the
original sentence. The district court did not violate the rule articulated in Prudhomme. See
id.
Affirmed.
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