This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1945
State of Minnesota, Respondent,
vs.
Gideon Charles Arrington, II, Appellant
Filed January 11, 2016 Affirmed Worke, Judge
Anoka County District Court File No. 02-CR-13-8457
Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County Attorney, Anoka, Minnesota (for respondent)
Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges his 324-month executed sentence for first-degree criminal
sexual conduct, arguing that the district court abused its discretion by imposing a sentence nearly double that of the presumptive sentence. Appellant also seeks to
withdraw his guilty plea due to ineffective assistance of counsel. We affirm.
FACTS
In November 2013, appellant Gideon Charles Arrington, II approached Z.A. as she
left her workplace to run errands and told her that he was a police officer. When Z.A.
returned to her workplace, Arrington forced her into his vehicle, threatened to shoot her if
she did not comply, and stuck an object into her back that she believed to be a gun.
Arrington handcuffed Z.A., blindfolded her with duct tape, and drove her to his house.
He left Z.A. in a cold garage for a prolonged period of time. Arrington subsequently
penetrated Z.A.’s mouth with his penis and forced his penis into her vagina on at least
two occasions. After each assault, Arrington scrubbed Z.A. with a bleach solution, and
once made her sit in a bleach bath. He washed her clothes, eventually returning them to
her in wet condition. Arrington kept Z.A. blindfolded and threatened to kill her if she
was not quiet and compliant. He put a gun into her mouth. He told her that he knew
where she lived and threatened to kill her if she contacted the police. After nine hours,
Arrington released Z.A. Z.A. alerted a taxi driver who contacted the police after
observing her wearing wet clothes, smelling of bleach, having duct tape in her hair, and
suffering from wounds left on her face from the duct tape.
DNA samples taken from Z.A.’s body matched Arrington, and a witness to the
kidnapping identified Arrington in a sequential lineup. Arrington was charged with three
counts of first-degree criminal sexual conduct and one count of kidnapping.
2 After jury selection, Arrington entered an Alford plea1 to one count of first-degree
criminal sexual conduct and waived his right to a Blakely jury trial2 in exchange for a
maximum executed sentence of 324 months and the dismissal of the remaining counts.
The district court imposed a 324-month sentence, slightly less than double the
presumptive sentence under the Minnesota Sentencing Guidelines, based upon four
aggravating factors: (1) there were multiple acts and/or types of penetration; (2) the
victim was treated with particular cruelty; (3) Arrington had a prior felony offense
involving injury to a victim; and (4) there was an abuse of trust. This appeal follows.
DECISION
Sentencing
Arrington first argues that the district court abused its discretion by granting the
state’s motion for an upward sentencing departure because the imposed sentence unduly
exaggerates the criminality of his conduct. A district court has great discretion in
sentencing, and we will not reverse a sentencing decision absent an abuse of discretion.
State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014). To justify a durational departure
from the presumptive sentence, there must be “substantial and compelling
circumstances.” Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). “If the record
supports findings that substantial and compelling circumstances exist, this court will not
1 In an Alford plea, the accused maintains his innocence but “reasonably concludes that there is evidence which would support a jury verdict of guilty.” State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977). 2 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), holds that a defendant is entitled to a jury determination on whether there are aggravating factors warranting an upward durational sentencing departure. State v. Dettman, 719 N.W.2d 644, 647 (Minn. 2006).
3 modify the departure unless it has a strong feeling that the sentence is disproportional to
the offense.” State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984) (quotation
omitted). Aggravating factors give the district court discretion to impose a sentence up to
twice the length of the presumptive prison term. Dillon v. State, 781 N.W.2d 588, 596
(Minn. App. 2010), review denied (Minn. July 20, 2010).
The district court relied upon four substantial and compelling reasons to support
the sentencing departure. First, it concluded that Arrington committed multiple acts of
penetration, based on the fact that he forced Z.M. to perform fellatio on him and
penetrated her vagina multiple times. “The fact that a defendant has subjected a victim to
multiple forms of penetration is a valid aggravating factor in first-degree criminal sexual
conduct cases.” State v. Yaritz, 791 N.W.2d 138, 145 (Minn. App. 2010) (quotation
omitted), review denied (Minn. Feb. 23, 2011). Therefore, the district court properly
relied upon this reason.
Second, the district court concluded that Arrington treated Z.A. with particular
cruelty based on numerous facts, including blindfolding her with duct tape, forcing her to
bathe in bleach, holding her in an unheated garage for an extended period of time, and
threatening to kill her. The Minnesota Sentencing Guidelines permit an upward
durational departure where a defendant treats a victim with particular cruelty. Minn.
Sent. Guidelines 2.D.3.b.(2) (Supp. 2013); see also Tucker v. State, 799 N.W.2d 583, 587
(Minn. 2011) (noting that an upward sentencing departure based on particular cruelty is
not an abuse of the district court’s discretion when the cruelty is not usually associated
4 with the relevant offense). Based on the record, the district court properly relied upon
this as an aggravating factor.
Third, it is undisputed that Arrington was previously convicted of felony first-
degree aggravated robbery involving injury to a victim. The sentencing guidelines permit
an upward durational departure where the “current conviction is for a criminal sexual
conduct offense . . . and . . . the offender has a prior felony conviction for . . . an offense
in which the victim was otherwise injured.” Minn. Sent.
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1945
State of Minnesota, Respondent,
vs.
Gideon Charles Arrington, II, Appellant
Filed January 11, 2016 Affirmed Worke, Judge
Anoka County District Court File No. 02-CR-13-8457
Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County Attorney, Anoka, Minnesota (for respondent)
Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges his 324-month executed sentence for first-degree criminal
sexual conduct, arguing that the district court abused its discretion by imposing a sentence nearly double that of the presumptive sentence. Appellant also seeks to
withdraw his guilty plea due to ineffective assistance of counsel. We affirm.
FACTS
In November 2013, appellant Gideon Charles Arrington, II approached Z.A. as she
left her workplace to run errands and told her that he was a police officer. When Z.A.
returned to her workplace, Arrington forced her into his vehicle, threatened to shoot her if
she did not comply, and stuck an object into her back that she believed to be a gun.
Arrington handcuffed Z.A., blindfolded her with duct tape, and drove her to his house.
He left Z.A. in a cold garage for a prolonged period of time. Arrington subsequently
penetrated Z.A.’s mouth with his penis and forced his penis into her vagina on at least
two occasions. After each assault, Arrington scrubbed Z.A. with a bleach solution, and
once made her sit in a bleach bath. He washed her clothes, eventually returning them to
her in wet condition. Arrington kept Z.A. blindfolded and threatened to kill her if she
was not quiet and compliant. He put a gun into her mouth. He told her that he knew
where she lived and threatened to kill her if she contacted the police. After nine hours,
Arrington released Z.A. Z.A. alerted a taxi driver who contacted the police after
observing her wearing wet clothes, smelling of bleach, having duct tape in her hair, and
suffering from wounds left on her face from the duct tape.
DNA samples taken from Z.A.’s body matched Arrington, and a witness to the
kidnapping identified Arrington in a sequential lineup. Arrington was charged with three
counts of first-degree criminal sexual conduct and one count of kidnapping.
2 After jury selection, Arrington entered an Alford plea1 to one count of first-degree
criminal sexual conduct and waived his right to a Blakely jury trial2 in exchange for a
maximum executed sentence of 324 months and the dismissal of the remaining counts.
The district court imposed a 324-month sentence, slightly less than double the
presumptive sentence under the Minnesota Sentencing Guidelines, based upon four
aggravating factors: (1) there were multiple acts and/or types of penetration; (2) the
victim was treated with particular cruelty; (3) Arrington had a prior felony offense
involving injury to a victim; and (4) there was an abuse of trust. This appeal follows.
DECISION
Sentencing
Arrington first argues that the district court abused its discretion by granting the
state’s motion for an upward sentencing departure because the imposed sentence unduly
exaggerates the criminality of his conduct. A district court has great discretion in
sentencing, and we will not reverse a sentencing decision absent an abuse of discretion.
State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014). To justify a durational departure
from the presumptive sentence, there must be “substantial and compelling
circumstances.” Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). “If the record
supports findings that substantial and compelling circumstances exist, this court will not
1 In an Alford plea, the accused maintains his innocence but “reasonably concludes that there is evidence which would support a jury verdict of guilty.” State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977). 2 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), holds that a defendant is entitled to a jury determination on whether there are aggravating factors warranting an upward durational sentencing departure. State v. Dettman, 719 N.W.2d 644, 647 (Minn. 2006).
3 modify the departure unless it has a strong feeling that the sentence is disproportional to
the offense.” State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984) (quotation
omitted). Aggravating factors give the district court discretion to impose a sentence up to
twice the length of the presumptive prison term. Dillon v. State, 781 N.W.2d 588, 596
(Minn. App. 2010), review denied (Minn. July 20, 2010).
The district court relied upon four substantial and compelling reasons to support
the sentencing departure. First, it concluded that Arrington committed multiple acts of
penetration, based on the fact that he forced Z.M. to perform fellatio on him and
penetrated her vagina multiple times. “The fact that a defendant has subjected a victim to
multiple forms of penetration is a valid aggravating factor in first-degree criminal sexual
conduct cases.” State v. Yaritz, 791 N.W.2d 138, 145 (Minn. App. 2010) (quotation
omitted), review denied (Minn. Feb. 23, 2011). Therefore, the district court properly
relied upon this reason.
Second, the district court concluded that Arrington treated Z.A. with particular
cruelty based on numerous facts, including blindfolding her with duct tape, forcing her to
bathe in bleach, holding her in an unheated garage for an extended period of time, and
threatening to kill her. The Minnesota Sentencing Guidelines permit an upward
durational departure where a defendant treats a victim with particular cruelty. Minn.
Sent. Guidelines 2.D.3.b.(2) (Supp. 2013); see also Tucker v. State, 799 N.W.2d 583, 587
(Minn. 2011) (noting that an upward sentencing departure based on particular cruelty is
not an abuse of the district court’s discretion when the cruelty is not usually associated
4 with the relevant offense). Based on the record, the district court properly relied upon
this as an aggravating factor.
Third, it is undisputed that Arrington was previously convicted of felony first-
degree aggravated robbery involving injury to a victim. The sentencing guidelines permit
an upward durational departure where the “current conviction is for a criminal sexual
conduct offense . . . and . . . the offender has a prior felony conviction for . . . an offense
in which the victim was otherwise injured.” Minn. Sent. Guidelines 2.D.3.b.(3) (Supp.
2013). Therefore, the district court properly relied upon this aggravating factor.
Fourth, the district court concluded that Arrington abused Z.A.’s trust because he
told her he was a police officer and suggested that, because of this, he knew where she
lived and could find her later. Arrington asserts that impersonating a police officer is a
separate offense that cannot be used to enhance his criminal-sexual-conduct offense, and
that he was not in a position of trust because he was not a police officer. Because the
district court relied upon numerous other factors that support the upward sentencing
departure, we need not determine whether abuse of trust is a proper aggravating factor
here. See Dillon, 781 N.W.2d at 595-96 (holding that a single aggravating factor is
sufficient to justify an upward departure).
Arrington contends that even if his sentence was “technically permissible,” it
unfairly exaggerates the criminality of his conduct. We disagree. Arrington does not cite
caselaw demonstrating that the district court could not use the four aggravating factors to
impose a durationally increased sentence. Rather, he cites caselaw reducing multiple
consecutive sentences. See, e.g., State v. Goulette, 442 N.W.2d 793, 795 (Minn. 1989)
5 (affirming defendant’s convictions but reducing aggregate sentence where five
consecutive sentences unfairly exaggerated the defendant’s criminal conduct).
Guilty plea withdrawal and ineffective assistance of counsel
Arrington argues that his guilty plea is invalid because he was pressured by
counsel to enter a plea, and asks this court to permit him to raise an ineffective-
assistance-of-counsel claim in a postconviction proceeding. “Generally, an ineffective
assistance of counsel claim should be raised in a postconviction petition for relief, rather
than on direct appeal.” State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000). But a
party may directly raise the issue of plea-withdrawal on appeal if the record is sufficient
for this court to reach a conclusion on the validity of the plea. State v. Newcombe, 412
N.W.2d 427, 430 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987). Arrington
concedes that the record is likely insufficient to establish an effective-assistance-of-
counsel claim at this point. Based on the record before us, we are unable to conclude
whether counsel was effective and whether the plea is valid. Therefore, the issue of
whether Arrington’s guilty plea is invalid based on ineffective assistance of counsel is
preserved for postconviction proceedings, in accordance with the law, should Arrington
choose to initiate them.
Affirmed.