Opinion
No. CX-00-141.
Filed December 5, 2000
Appeal from the District Court, Hennepin County, File No. 99-063102.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, (for appellant)
Considered and decided by Crippen, Presiding Judge, Kalitowski, Judge, and Foley, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant challenges his sentence for conviction of attempted aggravated robbery, asserting that the facts do not demonstrate severe aggravating circumstances necessary to warrant what he characterizes as a greater-than-double upward departure. In his pro se supplemental brief, appellant contends that his counsel was ineffective during jury selection and that the jury composition denied him his right to a fair and impartial jury. We affirm.
FACTS
On June 28, 1999, appellant Robert Swarn and another man approached the victim, J.A., on the front porch of his home and demanded money. J.A. refused. Swarn pulled out a gun, aimed it at J.A.'s head, and pulled the trigger three times, but the gun did not fire. J.A. then jumped over the side of his porch, ran to the back entrance of his house, and entered. Swarn fired the gun into the door twice and then fled. Swarn was charged with attempted aggravated robbery and possession of a firearm with the serial number removed.
After a jury trial, Swarn was found guilty of all charges and sentenced to 60 months for attempted robbery and to a concurrent one year and one day sentence for possession of a firearm with the serial number removed. The presumptive sentence for attempted aggravated robbery is 24 months. The mandatory minimum for use of a gun during such a robbery is 36 months. This appeal followed.
DECISION I.
Departure
Swarn argues that the facts of this case do not demonstrate the severe aggravating circumstances required for a greater-than-double upward departure. See State v. Butterfield, 555 N.W.2d 526, 531 (Minn.App. 1996) (recognizing durational departure generally limited to double maximum presumptive sentence but where severe aggravating circumstances present, statutory maximum is only limit on sentence duration), review denied (Minn. Dec. 17, 1996).
Swarn was sentenced to 60 months for attempted aggravated robbery. Generally, 24 months is the presumptive sentence for attempted aggravated robbery, if, as in this case, the defendant has a criminal history score of zero. Minn. Sent. Guidelines IV. But the presumptive sentence in this case was the mandatory minimum of 36 months because "at the time of the offense" Swarn "had in [his] possession or used" a firearm. Minn. Stat. § 609.11, subd. 5 (1998); see Minn. Sent. Guidelines II.E. (stating presumptive duration of prison sentence should be mandatory minimum sentence according to statute or duration of prison sentence according to guidelines).
Accordingly, the 60-month sentence imposed by the court was less than a double upward departure from the 36-month mandatory minimum and severe aggravating circumstances are not necessary to justify the departure.
Substantial and Compelling Circumstances
Sentencing departures rest within the district court's discretion and will not be reversed absent an abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). There must be "substantial and compelling circumstances" in the record, however, to justify a departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996) (citation omitted). Substantial and compelling circumstances are those which make the crime either more or less serious than a typical case involving the same crime. State v. Allen, 482 N.W.2d 228 (Minn.App. 1992), review denied (Minn. April 13, 1992).
In supporting its decision for an upward departure in sentencing, the district court noted the circumstances warranting departure:
But as far as the sentence, based on the jury verdict, it's clear to me that this is a more serious case than a typical attempted [aggravated] robbery, * * * the suggested sentence under the sentencing guidelines does not assume that a firearm will actually be — the trigger will be pulled point blank at a victim nor that shots would be fired into a residence nor that an attempted aggravated robbery would — would occur at the threshold to a person's residence. So, it's clear to me that there are clear and compelling grounds for an upward departure.
The invasion of a victim's home may support an upward departure in a case where the invasion is not an essential element of the charge itself. State v. Pierson, 368 N.W.2d 427, 436 (Minn.App. 1985). In State v. Hough, 585 N.W.2d 393 (Minn. 1998), the court upheld an upward departure where the defendant invaded the zone of privacy by shooting into a residence . See also State v. Back, 341 N.W.2d 273 (Minn. 1983) (affirming upward departure for second-degree murder where defendant invaded victim's zone of privacy by shooting into residence). Additionally, this court has upheld a departure where people other than the victim were exposed to risk, holding that this aggravates the recklessness or subjective element. State v. Bicek, 429 N.W.2d 289 (Minn.App. 1988), review denied (Minn. Nov. 23, 1988).
The facts in this case support the district court's upward departure. The court was entitled to consider invasion of the victim's zone of privacy as an aggravating factor because entry into a dwelling is not an essential element of aggravated robbery. Swarn initially accosted J.A. at the threshold to his home, invading J.A.'s zone of privacy, and Swarn committed an additional invasion into J.A.'s zone of privacy when he fired two bullets into the house. Further, random firing of bullets into a house occupied by others is also an aggravating factor because it exposed others to risk. Because there are substantial and compelling circumstances supporting the district court's decision, the district court did not abuse its discretion by ordering an upward departure.
II.
Swarn raises the issues of ineffective assistance of counsel and right to a fair and impartial jury in his pro se brief. The essence of both arguments is that the jury composition, unchallenged by Swarn's counsel, denied him his constitutional right to an impartial jury. Swarn argues that a number of the jurors should have been dismissed for cause because they had been victims of similar crimes.
It is appellant's duty to order a transcript "of those parts of the proceedings not already part of the record which are deemed necessary for inclusion in the record." Minn.R.Civ.App.P. 110.02, subd. 1(a); see Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn.App. 1995) (stating appellant generally bears burden of providing adequate record).
Because Swarn failed to request a transcript of voir dire, he waived the issues he raises. Further, absent this transcript, it is impossible for this court to determine the validity of his allegations.