State v. Hatton

LANSING, Judge

(dissenting).

Mark Hatton’s initial appeal to this court did not raise a sentencing issue. See State v. Hatton, 389 N.W.2d 229 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Aug. 13, 1986). In that appeal we affirmed Hatton’s convictions for first-degree criminal sexual assault, kidnapping and third-degree assault, for which he received concurrent prison terms of 130 months, 32 months, and one year and a day, respectively. Subsequent to the appeal and based on our decision in State v. Eberhardt, 379 N.W.2d 242 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Feb. 19, 1986), Hatton moved under Minn.R.Crim.P. 27 for a reduction of sentence. The sentencing court recognized *503that, under Eberhardt, no more than one criminal history point can be imp'osed on multiple convictions arising from a single course of conduct. The court recomputed Hatton’s sentence, but retained the original 130-month total.

In a carefully reasoned, four-page memorandum, the sentencing court explained its decision to impose a sentence greater than double the presumptive sentence. I cannot agree with the majority’s characterization of the trial court’s action as “arbitrarily enhancing a previously imposed upward departure for the sole reason of maintaining the level of an improperly imposed 'sentence.” The sentencing court carefully evaluated the facts and the aggravating circumstances and concluded that Hatton’s brutality, cruelty and callousness warranted a durational departure of more than double the presumptive sentence. This is the appropriate exercise of sentencing discretion permitted in Williams v. State, 361 N.W.2d 840 (Minn.1985); and State v. Northard, 348 N.W.2d 764 (Minn.Ct.App.1984), pet. for rev. denied, (Minn. Sept. 5, 1984); and specifically provided for in State v. Pickett, 358 N.W.2d 38 (Minn.1984); and State v. Rohda, 358 N.W.2d 39 (Minn.1984).

The question on review is whether, under the facts of this case, the extent of the departure is an abuse of discretion. The facts show that the victim was forced to perform oral sex on Hatton and his brother and was subjected to multiple penetrations over several hours. She was kidnapped, bound and transported in a car trunk, where she was held for over two hours. Hatton and his brother repeatedly sexually assaulted her while her hands were tied and a jacket blindfolded her face. She was in constant fear of her life and received bruises on her chest, hip and arm, as well as her wrists. She was forced to witness an additional assault on another victim. The 130-month sentence is not disproportionate to the conduct. The departure is supported by appropriate considerations and is not an abuse of discretion.