Tucker v. State

799 N.W.2d 583, 2011 Minn. LEXIS 353, 2011 WL 2555635

• Court: Supreme Court of Minnesota
• Decided: June 29, 2011
• Docket: No. A09-666
• Status: Published

Opinions

OPINION

STRAS, Justice.

Appellant Clemmie Howard Tucker pleaded guilty to second-degree unintentional felony murder, Minn.Stat. § 609.19, subd. 2(1) (2010). Under the terms of the plea agreement, the district court sentenced Tucker to 225 months in prison. The sentence represented an upward dura-tional departure from the presumptive sentencing range of 128 to 180 months for a defendant convicted of second-degree unintentional murder with Tucker’s criminal history score. Tucker filed a petition for postconviction relief in which he claimed the sentencing court abused its discretion when it imposed an upward departure based on particular cruelty to his victim. The court of appeals affirmed the denial of postconviction relief on the ground that Tucker’s failure to render aid to his victim constituted particular cruelty. We granted Tucker’s petition for review, and now reverse and remand for further proceedings.

I.

Early in the morning of June 24, 2005, Tucker left the 200 Club in North Minneapolis with his girlfriend, Angelina Garley. Tucker drove his truck behind Garley’s car,.engaging in a “cat and mouse sort of chase” to induce her to pull over to the side of the road. Garley eventually pulled over to the side of the road. Tucker then parked his truck next to Garley’s car, exited the truck, pulled out a .45 caliber pistol, and fired a single shot through the driver’s side of the windshield of Garley’s car. Garley was still in the driver’s seat when Tucker fired the shot in her direction. Immediately after the shooting, Tucker climbed back into his truck and fled the scene. At some point thereafter, Tucker called 911 to report his pistol missing, but he did not mention the shooting or that Garley might be injured.

Shortly after the shooting, the police responded to reports of a gunshot and a woman calling for help. The police found Garley in her car bleeding and having trouble breathing. Garley later died at the hospital as a result of a single gunshot wound to the chest from a .45 caliber bullet.

Based on the police investigation, the State charged Tucker with one count of second-degree intentional murder. On February 27, 2006, Tucker pleaded guilty to an amended charge of second-degree unintentional felony murder committed during a second-degree felony assault pursuant to Minn.Stat. § 609.19, subd. 2(1) (2010).¹ That crime carries a presumptive sentencing range of 128 to 180 months for a defendant with Tucker’s criminal history score. However, Tucker entered into a plea agreement with the State that called for an upward durational departure of 75 months from the presumptive sentence of 150 months based on two aggravating factors: (1) invasion of the victim’s zone of privacy and (2) particular cruelty for failing to render medical assistance to the victim. The district court accepted the plea, convicted Tucker, and imposed a 225-month executed prison sentence.

Tucker filed a petition for postconviction relief, which the postconviction court denied without an evidentiary hearing. The court of appeals then remanded the case to the postconviction court for the appointment of a public defender. After appointing a public defender and considering the parties’ arguments on remand, the post-conviction court concluded that the sentencing court abused its discretion when it relied on the zone-of-privaey factor to impose an upward durational departure in Tucker’s case. The postconviction court nonetheless denied Tucker’s petition for postconviction relief on the ground that Tucker’s failure to seek medical aid for Garley after the shooting constituted “particular cruelty,” a recognized basis for departure under the Minnesota Sentencing Guidelines (“Sentencing Guidelines”). Minn. Sent. Guidelines II.D. The court of appeals affirmed, holding that a reasonable person in Tucker’s circumstances would have realized the risk of injury to Garley, and that Tucker acted in a particularly cruel manner by failing to render assistance to her under the circumstances. Tucker v. State, 777 N.W.2d 247, 251 (Minn.App.2010). We granted Tucker’s petition for review.

II.

Generally, we review an upward departure from the presumptive guidelines sentence for an abuse of discretion. State v. Jackson, 749 N.W.2d 353, 356-57 (Minn.2008). A postconviction court’s decision to deny a postconviction petition “will not be disturbed ‘unless the ... court abused its discretion, exercised its discretion in an arbitrary or capricious manner, or based its ruling on an erroneous view of the law.’ ” Dobbins v. State, 788 N.W.2d 719, 725 (Minn.2010) (alteration in original) (citation omitted). An upward departure will be reversed if the sentencing court’s articulated reasons for the departure are “ ‘improper or inadequate’ ” and the evidence in the record is insufficient to justify the departure. Jackson, 749 N.W.2d at 357 (quoting Taylor v. State, 670 N.W.2d 584, 588 (Minn.2003)).

The Sentencing Guidelines promote uniformity, proportionality, rationality, and predictability in sentencing. State v. Misquadace, 644 N.W.2d 65, 68 (Minn.2002). A goal of the Sentencing Guidelines is to 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.” Minn. Sent. Guidelines I; Jackson, 749 N.W.2d at 357. To ensure uniformity and proportionality in sentencing, “departures from the presumptive guidelines sentence are discouraged.” Jackson, 749 N.W.2d at 357. Thus, a district court may depart from the presumptive guidelines sentencing range only if “there exist identifiable, substantial, and compelling circumstances to support a sentence outside the range on the grids.” Minn. Sent. Guidelines II.D. “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.’” State v. Jones, 745 N.W.2d 845, 848 (Minn.2008) (alteration in original) (quoting Misquadace, 644 N.W.2d at 69).

To aid a court in exercising its discretion to depart from a presumptive guidelines sentence, the Sentencing Guidelines articulate “a nonexclusive list of factors which may be used as reasons for departure.” Minn. Sent. Guidelines II.D.2. One factor listed in the Sentencing Guidelines that provides a permissible explanation for departure is if the victim of the crime “was treated with particular cruelty for which the individual offender should be held responsible.” Minn. Sent. Guidelines II.D.2.b(2). Based upon the facts admitted in Tucker’s guilty plea, and after a valid waiver of a Blakely jury, the sentencing court concluded that Tucker’s “particular cruelty and failure to render aid” to Garley warranted an upward durational departure.² We disagree.

“ ‘particular cruelty’ involves the gratuitous infliction of pain and cruelty ‘of a kind not usually associated with the commission of the offense in question.’ ” State v. Rourke, 773 N.W.2d 913, 922 (citation omitted); see also Webster’s Third International Dictionary of the English Language Unabridged 1646-47 (2002) (defining the word “particular” as “distinctive among others of the same kind,” “markedly unusual,” or “noteworthy as being peculiar”); The American Heritage Dictionary of the English Language 1282 (4th ed.2009) (defining “particular” as “[separate and distinct from others of the same group”). Thus, although every second-degree unintentional felony murder will undoubtedly involve some degree of cruelty, a district court may use particular cruelty as a basis for departure only when the cruelty associated with the crime for which the defendant was convicted is “of a kind not usually associated with the commission of the offense in question.” Short of a finding of this nature, a district court abuses its discretion in imposing an upward departure based on particular cruelty.

Furthermore, although the failure to aid is relevant to whether a person convicted of a crime has acted in a particularly cruel manner, we have never affirmed a departure for particular cruelty based solely on the failure to render medical aid.³ See, e.g., State v. Jones, 328 N.W.2d 736, 738 (Minn.1983) (finding multiple grounds for departure when defendant participated in the aggravated robbery of an elderly victim and then left the injured, helpless victim secluded in victim’s apartment); State v. Stumm, 312 N.W.2d 248, 249 (Minn.1981) (finding multiple grounds for departure when defendant, while babysitting, repeatedly punched his girlfriend’s 2-year-old child and then failed to seek help even after the child exhibited obvious signs of injury). Rather, we have consistently required the “gratuitous infliction of pain and cruelty ‘of a kind not usually associated "with the commission of the offense in question.’ ” Rourke, 773 N.W.2d at 922 (citation omitted); see also, e.g., State v. Ming Sen Shine, 326 N.W.2d 648, 654-55 (Minn.1982) (noting that putting the victim in acute fear of death, killing her, and then concealing the body was particularly cruel); cf. State v. Traylor, 641 N.W.2d 335, 342 (Minn.App.2002), rev’d on other grounds, 656 N.W.2d 885 (Minn.2003) (holding that the district court did not abuse its discretion in imposing a double durational departure based on particular cruelty because the defendant repeatedly abused the victim after stabbing her and actively prevented her from receiving medical attention); State v. Sims, 553 N.W.2d 58, 61 (Minn.App.1996) (concluding that needlessly threatening the victim before eventually killing the victim and then bragging about the murder was deemed particularly cruel); State v. Gurske, 424 N.W.2d 300, 305 (Minn.App.1988) (noting that burning a victim’s body while the victim might have been alive was particularly cruel).

Here, the cruelty associated with the commission of Tucker’s offense was of a kind usually associated with the commission of the offense in question. Fleeing the scene of the offense and abandoning the victim is typical behavior for those defendants convicted of second-degree unintentional felony murder. See, e.g., State v. Delk, 781 N.W.2d 426, 428 (Minn.App.2010), rev. denied (Minn. July 20, 2010); State v. Lory, 559 N.W.2d 425, 427 (Minn.App.1997), rev. denied (Minn. Apr. 15, 1997); State v. Lohmeier, 390 N.W.2d 882, 884 (Minn.App.1986), rev. denied (Minn. Oct. 29, 1986).

Moreover, although the shooting no doubt inflicted great pain on Garley, the record does not show, nor did the sentencing court articulate, how this particular gunshot wound inflicted greater pain and cruelty than the typical second-degree unintentional felony murder. Tucker did not shoot Garley in a manner that gratuitously inflicted additional pain. Nor did Tucker torture Garley or do any other act that gratuitously inflicted additional pain. Unlike other cases in which a finding of particular cruelty has been upheld, Tucker did not stay at the scene and actively ward off medical assistance or isolate Garley in such a way that it was difficult or impossible to render medical assistance to her. See, e.g., Jones, 328 N.W.2d at 737; Traylor, 641 N.W.2d at 342. Instead, Tucker fired a single shot from a .45 caliber pistol into the driver’s side of the car’s windshield, hitting the victim, and then fled the scene of the crime. Tucker later called 911 to report his pistol stolen without telling the dispatcher about the shooting, but that act, while deceptive, did not gratuitously inflict additional pain or suffering on the victim. Permitting an upward departure under these circumstances fails to apply the plain meaning of the phrase “particular cruelty,” disregards the fundamental requirement permitting sentencing departures only when a defendant’s conduct in the commission of an offense is significantly more serious than that typically involved in the commission of the offense in question, and undermines uniformity and proportionality in sentencing.⁴

III.

For the foregoing reasons, we conclude that Tucker’s petition for postconviction relief and the flies and records of the proceedings conclusively show that Tucker is entitled to postconviction relief because the sentencing court’s reason for departure was improper. Accordingly, we reverse the postconviction court’s denial of relief and remand for further proceedings consistent with the opinion.

Reversed and remanded.

STRAS, J. Concurring, PAGE, J. Concurring, ANDERSON, G. BARRY, J, GILDEA, C.J., and DIETZEN, J.

1 . Second-degree unintentional felony murder requires a person to "cause[] the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense.” Minn.Stat. § 609.19, subd. 2(1). The definition of second-degree assault, meanwhile, requires "assaultfing] another with a dangerous weapon and inflict[ing] substantial bodily harm.” Minn.Stat. § 609.222, subd. 2 (2010).

2 . The sentencing hearing transcript raises the possibility that the sentencing court based the upward durational departure on both "particular cruelty and failure to render aid,” even though the latter is not listed as a separate basis for departure in the Sentencing Guidelines. The most reasonable interpretation, as evidenced by the arguments of the parties and the treatment of the sentencing departure by the court of appeals, is that the sentencing court imposed the upward departure because Tucker’s failure to render aid to Garley constituted "particular cruelty.” We need not resolve the ambiguity in the sentencing transcript, however, because under either interpretation the sentencing court abused its discretion in imposing the upward departure.

3 . We do not suggest that the failure to seek medical aid for a victim, standing alone, can never be the basis for an upward departure for particular cruelty. Behavior that is typical for one type of crime might provide a basis for a permissible departure for "particular cruelty” in the context of a different crime for which the behavior would be atypical.

4 . It is possible that Tucker’s conduct also violates Minn.Stat. § 609.662, subd. 2 (2010), which provides that ''[a] person who discharges a firearm and knows or has reason to know that the discharge has caused bodily harm to another person, shall: (1) immediately investigate the extent of the person's injuries; and (2) render immediate reasonable assistance to the injured person.” Although Tucker’s failure to render aid to Garley could constitute an impermissible ground for departure based on an uncharged criminal offense, see State v. Edwards, 774 N.W.2d 596, 602 (Minn.2009), we need not decide that question because Tucker failed to raise it either before the district court or on appeal, see State v. Finnegan, 784 N.W.2d 243, 248 n. 3 (Minn.2010).