Opinion
No. C0-01-966.
Filed March 19, 2002.
Appeal from the District Court, Hennepin County, File No. 00053282.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Elizabeth V. Cutter, Assistant County Attorney, (for respondent)
John Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
On appeal from convictions of felony child neglect and felony third-degree assault, appellant argues that (1) the evidence was insufficient to support a felony conviction of child neglect, (2) the district court abused its discretion by imposing consecutive sentences, and (3) appellant received ineffective assistance of counsel. We affirm as modified.
FACTS
Appellant Cathy Jean Cannady is a single mother of three children, including L.A.G. and L.G., who were twelve and ten years old at the time this case originated. Cannady frequently left all three children alone in the family's apartment while she worked. The children were unsupervised for many hours at a time and it was not uncommon for them to be left alone for as long as twelve hours or even overnight.
The children were responsible for getting themselves prepared for school each morning and taking care of themselves after school each afternoon. In their mother's absence, they also were responsible for completing their homework, feeding themselves, and putting themselves to bed. Cannady told the children they could go to the 78-year-old landlord who lived downstairs for assistance. The landlord had no responsibility for caring for the children and had little contact with them. Cannady believed the children were able to care for and supervise themselves.
Cannady kept her food separate from the children's food. If the children ate Cannady's food, she would punish them, even if the children had run out of food. She would similarly punish the children for misbehaving or failing to follow her instructions. At times, Cannady would punish the children by making them stand in a corner for as many as three hours or waking them up in the middle of the night to clean the house. Often, Cannady whipped the children with an extension cord, belt, coat hanger or shower brush on their bare buttocks, clothed buttocks, arms, legs, and heads. One time, Cannady made a daughter wear dirty underpants on her head as punishment for not changing her underpants often enough.
L.G., Cannady's daughter, called the police to report that Cannady had abused her. L.G. told the responding officers that Cannady beat L.G. with her hands and whipped L.G. with an extension cord. L.G. showed the officers scars that she said were a result of the beatings. L.A.G., Cannady's son, told the officers that Cannady had also beaten him with the extension cord, a long shower brush, and her fists. The officers noticed that L.A.G. also had scars on his body. The children gave the extension cord to the officers. The two children were taken to St. Joseph's Home for Children and then placed in foster care.
Cannady was interviewed by the police and admitted that she had hit the children with the extension cord. She also admitted that the children's scars were from those beatings.
After the state last amended the complaint, Cannady was charged with the following: (1) two counts of felony malicious punishment of a child in violation of Minn. Stat. § 609.377, subd. 5 (1998); (2) two counts of felony third-degree assault in violation of Minn. Stat. §§ 609.223, subd. 1, 609.101, subd. 2 (1998); (3) two counts of felony third-degree assault in violation of Minn. Stat. §§ 609.223, subd. 2, 609.101, subd. 2 (1998); and (4) one count of felony child neglect in violation of Minn. Stat. § 609.378, subd. 1(a)(1) (1998).
Cannady was not charged with committing any crimes against her youngest child.
At trial, the jury found Cannady guilty of the one count of child neglect and all four counts of third-degree assault. It also found her guilty of malicious punishment of a child, for her treatment of L.A.G., but did not find that substantial bodily harm resulted from the punishment. The district court adjudicated convictions for (1) one count of third-degree assault against L.G., (2) one count of third-degree assault against L.A.G., and (3) one count of child neglect against either L.G. or L.A.G. The district court sentenced Cannady to three consecutive sentences. It stayed execution of the sentences and placed Cannady on three-years probation. This appeal followed.
DECISION
Cannady argues that (1) the evidence was insufficient to establish, beyond a reasonable doubt, that her neglect substantially harmed either L.A.G. or L.G., (2) the district court should have imposed concurrent, stayed sentences, and (3) she received ineffective assistance of counsel.
I
When considering a claim of insufficient evidence, an appellate court's review is limited to a thorough analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to have allowed the jury to reach the verdict it did. State v. Webb, 440 N.W.2dd 426, 430 (Minn. 1989). The appellate court must "assum[e] the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The appellate court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
A parent is guilty of gross misdemeanor child neglect when that parent
willfully deprives a child of necessary food, clothing, * * * or supervision appropriate to the child's age, when the parent * * * is reasonably able to make the necessary provisions and the deprivation harms or is likely to substantially harm the child's physical, mental, or emotional health.
Minn. Stat. § 609.378, subd. 1(a)(1) (1998) (emphasis added); see Minn. Stat. § 609.03 (1998) (defining felony and gross misdemeanor crimes based on their penalties). A parent is guilty of felony child neglect if the deprivation results in substantial harm to the child's physical, mental, or emotional health. Minn. Stat. §§ 609.378, subd. 1(a)(1), 609.03. "Substantial bodily harm" is defined as
bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.
Minn. Stat. § 609.02, subd. 7(a) (1998). The statute does not define substantial harm to one's mental or emotional health.
Cannady argues that the evidence was insufficient to support her conviction of felony child neglect because, while her neglect was likely to substantially harm either of the two children, the evidence does not support a finding that the neglect did, in fact, substantially harm either of them.
Cannady does not challenge her third-degree assault convictions, which also required the jury to find that her behavior resulted in "substantial bodily harm." See Minn. Stat. § 609.223, subd. 2 (1998).
The state's expert witness testified about the actual effect of Cannady's behavior on the children. She testified that L.G. suffers nightmares, is untrusting, does not know how to take care of her own hygiene, has a poor ability to form attachments, and has poor problem-solving skills. She testified that L.A.G. has some of the same behaviors as L.G., and additionally suffers guilt for the maltreatment that both he and his siblings experienced, and blames himself and his siblings for Cannady's behavior.
In addition, the foster mother and a social worker testified that, because of the neglect, the children did not know how to care for themselves. Shortly after the children were removed from the home, the social worker noticed that both children were poorly groomed; for example, L.G.'s hair was matted and falling out. The foster mother observed that the children did not know how to care for their personal hygiene, such as properly bathing themselves.
The evidence is sufficient to permit the jury to find that the neglect substantially harmed the physical, mental, or emotional health of at least one, if not both, of the children. We affirm Cannady's felony-level conviction of neglect of a child.
II
Ordinarily, if a person's conduct constitutes more than one criminal offense, that person may be punished for only one of the offenses unless the offenses were committed as separate behavioral incidents or were committed against different persons and a multiple sentence will not unfairly exaggerate the ciminality of the person's conduct. Minn. Stat. § 609.035 (1998); State v. Lee, 491 N.W.2d 895, 901 (Minn. 1992) (citing Minn. Stat. § 609.15 (1992)).
When determining an appropriate sentence, the district court must use the Minnesota Sentencing Guidelines to ensure that individuals are being sentenced correctly. Minn. Sent. Guidelines I. "[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present." State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted). When such factors are present and the district court decides to depart, it must provide written reasons for doing so. Minn. Sent. Guidelines II(D); State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). An appellate court will reverse that decision only if the district court clearly abused its discretion. Id.
Consecutive sentences are permissive under the guidelines when there are "[m]ultiple felony convictions for crimes against persons," and the "presumptive disposition for the current offense(s) is commitment to the Commissioner of Corrections." Minn. Sent. Guidelines II.F.; see Minn. Stat. § 609.105 (1998) (providing that "commitment to the Commissioner of Corrections" occurs when a sentence is executed and the individual is imprisoned).
Because the assaults occurred on or about the same dates, and the neglect occurred later, the district court properly sentenced Cannady for the convictions in that order. See State v. Soto, 562 N.W.2d 299, 303 (Minn. 1997) (stating that when multiple offenses result from different behavioral incidents, it is appropriate to use the Hernandez method of calculating sentences by taking earlier sentences into account when sentencing the person for the later crimes even though the earlier sentences were not imposed before the later sentences). However, based on the severity level of the offenses and Cannady's criminal-history score, the presumptive disposition is a stayed sentence. As a result, the imposition of consecutive sentences was not permissive and is a departure from the guidelines. But the district court did not state any grounds for departure and provided no other indication that it intended to depart.
The state agrees that the district court erred by imposing consecutive sentences without stating grounds for departure, but argues that this court should affirm the sentence because the record supports departure. Alternatively, the state argues that the matter should be remanded to the district court to consider departure.
We conclude that the district court abused its discretion when it departed from the presumptive sentence by imposing consecutive sentences without providing grounds for departure. Further, we conclude that when no reasons for departure are stated on the record at the time of sentencing, and the court does not state any intent to depart, remand is not appropriate because the district court cannot provide grounds for departure retroactively. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985); see also State v. Thieman, 439 N.W.2d 1, 7 (Minn. 1989) (relying on Williams to conclude that, because no reasons for departure were stated at the time of the original sentence, a subsequent departure would not be allowed).
Accordingly, we modify Cannady's sentences, by imposing the presumptive sentences of concurrent, stayed sentences of one year and one day, 15 months, and one year and one day.
III
In her pro se supplemental brief, Cannady suggests that she did not receive effective assistance of counsel. Cannady did not raise this issue before the district court. "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) (citation omitted). Therefore, while we decline to reach the merits of this issue, Cannady's right to pursue an ineffective assistance of counsel claim in a petition for postconviction relief is preserved.