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STATE OF MINNESOTA IN COURT OF APPEALS A09-1026 Richard Charles Dillon, petitioner, Appellant, vs. State of Minnesota, Respondent. Filed May 11, 2010 Affirmed Ross, Judge Hennepin County District Court File No. 27-CR-98-037134 Bradford Colbert, Legal Assistance to Minnesota Prisoners, St. Paul, Minnesota (for appellant) Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Stoneburner, Judge; and Stauber, Judge. SYLLABUS 1. We review upward durational sentencing departures that more than double

the presumptive sentence for an abuse of discretion. 2. The particularly cruel conduct of a defendant convicted of assault can be

inferred from the nature and extent of injuries inflicted on the victim, supporting an upward durational departure from the presumptive sentence.

OPINION ROSS, Judge Richard Dillon`s wife spent three weeks in intensive care following life-saving surgery and another month hospitalized after Dillon struck and kicked her while she lay on the floor. Dillon inflicted the following injuries while taunting her between several of the blows: broken ribs; head, face, arm, and torso bruising; massive contusion of the vaginal and inner-thigh region; severe liver laceration requiring a hepatectomy; blowout eye fracture requiring surgery and causing permanent vision loss; swollen gallbladder requiring a cholecystectomy; large-intestine damage requiring an ileostomy and a colectomy; swollen or fractured larynx requiring a tracheostomy; blood loss of two quarts (about half her total supply) before surgery and six quarts of ongoing transfusion during surgery; temporary dependence on a respirator and a colostomy bag; and disfiguring scars from surgical openings. Dillon appeals from the postconviction court`s refusal to reduce his 240-month prison sentence for first-degree assault. He argues that the circumstances were not severe enough to justify imprisonment for more than double the presumptive sentence, contending that the sentencing court improperly focused on his wife`s injuries rather than on his conduct. And he argues that because his appellate counsel failed to make this argument during his first appeal, he received constitutionally deficient representation. Because severe aggravating factors to support the departure can be inferred from the nature and extent of the victim`s injuries, Dillon`s first argument fails, and because an

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earlier rendition of the same argument would have fared no better, his second argument fails. We affirm. FACTS Minneapolis police went to Richard Dillon`s apartment on a report of loud arguing. Dillon answered the door with blood on his chest and legs. He told officers that he had been arguing with his wife. Officers asked to see her. Dillon left the officers and returned a few moments later claiming that his wife did not want to come to the door. The officers asked for permission to check on her, and Dillon finally allowed them in. The officers found Dillon`s wife, K.P., lying on the bedroom floor. She was bleeding significantly from her face and having difficulty breathing. She groaned in pain and told officers that Dillon beat her. K.P. went to the hospital by ambulance. She was covered with bruises, had multiple broken ribs on both sides, and her eye had a blowout fracture. An abdominal CT scan revealed a deep liver tear and internal bleeding. So doctors rushed her into surgery. The surgeon discovered that K.P.`s liver was severed with a portion hanging on by a thread. K.P. had a class-four hemorrhage, the most severe type. Surgeons suctioned two quarts of blood from her abdomen; the average person has four to five quarts in her entire body. K.P. continued bleeding during the surgery, requiring six quarts of

transfused blood. The liver damage was consistent with blunt force, and the surgeon later estimated that between one in five and one in three people would die from a similar liver laceration and blood loss.

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Two days later, a surgeon removed K.P.`s gallbladder and inserted a feeding tube. One week later, doctors removed approximately a third of K.P.`s large intestine. This surgery required K.P. to use a colostomy bag for two months. Doctors inserted a

breathing tube, and K.P. spent two weeks on a respirator. She continued to experience difficulty breathing after the tube was removed, requiring a tracheostomy. In all, K.P. lost most of her blood, part of her liver, some of her vision, much of her large intestine, and all of her gallbladder. K.P. spent three weeks in intensive care and an additional month hospitalized. Dillon, 300 pounds, admitted that he slapped K.P., 130 pounds, about five times hard enough to make her nose and lip bleed. K.P. recounted that between several of the blows, Dillon taunted her, asking, How does that feel? Dillon admitted that he grabbed K.P. by the arm, prodded her in the back with his knee, kicked her in the shoulder, and pushed on her ribs with his foot. He also admitted that he stepped on K.P.`s stomach and kicked her in the face. But Dillon minimized the force of his attack and testified that K.P.`s injuries might have been caused by the police, paramedics, or surgeons. The district court was not persuaded and found that Dillon caused all of K.P.`s injuries. It found him guilty of first-degree assault. The state moved for an upward departure from the presumptive sentence of 86 months in prison. The district court agreed and sentenced Dillon to the statutory

maximum sentence of 240 months. Dillon appealed from his conviction, challenging the validity of his waiver of the right to counsel, the validity of the search of his home, and

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the sufficiency of the evidence. This court affirmed. State v. Dillon, No. C7-99-252 (Minn. App. Oct. 26, 1999), review denied (Minn. Dec. 14, 1999). Dillon filed a petition for postconviction relief in June 2004. Clerical errors delayed action on the petition until early 2009. Dillon filed an amended postconviction petition, arguing that the district court had imposed an unlawful sentence and that he had received ineffective assistance of counsel because his original appellate attorney did not make the sentencing argument. The district court denied the petition. Dillon appeals. ISSUES I. What standard of review applies to a challenged prison sentence resulting from an upward departure and comprising a term that is more than twice the presumptive sentence? Did the district court abuse its discretion by departing upward from the sentencing guildelines to impose a sentence that more than doubled the presumptive term? Did the appellant receive ineffective assistance of counsel in his previous appeal because his lawyer did not argue that the district court imposed an unlawful sentence? ANALYSIS Dillon argues that aggravating circumstances did not justify the upward durational sentencing departure that increased his sentence to approximately 2.8 times the presumptive term. He asks that his sentence be reduced to 172 months, double the presumptive sentence length. Specifically, Dillon asks us to apply a strict standard of review, to deem the departure excessive, and to determine that his original appellate attorney gave him constitutionally deficient representation.

II.

III.

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I We first consider Dillon`s contention that our standard of review should be especially exacting given the length of the postdeparture sentence here. Generally,

appellate courts review sentences that depart from the presumptive guidelines range for an abuse of discretion. Taylor v. State, 670 N.W.2d 584, 588 (Minn. 2003). Abuse of discretion is also the standard for reviewing denials of postconviction relief. Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007). Dillon maintains that we should review his departure more strictly than this standard requires. He cites to no specific cases

announcing a different standard, but he argues that the general tone of courts reviewing departures that more than double the presumptive sentence suggests a standard of review that is less deferential to the district court`s judgment. The argument has some weight. We generally reject Dillon`s broad proposition that the abuse-of-discretion standard does not apply to our review of the district court`s decision to impose a sentence longer than double the presumptive sentence. We have surveyed the greater-than-doubledeparture cases and have found no opinions specifically announcing an elevated standard of review. See State v. Shattuck, 704 N.W.2d 131, 140 (Minn. 2005) (We review the district court`s decision to depart from the guidelines` presumptive sentence for an abuse of discretion.); State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (A trial court`s decision to depart from the presumptive sentence specified in the sentencing guidelines is reviewed for an abuse of discretion.); State v. Mesich, 396 N.W.2d 46, 53 (Minn. App. 1986) (The trial court did not abuse its discretion in sentencing defendant as it did.), review denied (Minn. Jan. 2, 1987). We conclude that we review upward durational 6

sentencing departures that are greater than twice the presumptive sentence for an abuse of discretion. But abuse of discretion is a broad umbrella standard that encompasses varying degrees of deference. Addressing Dillon`s argument that a stricter standard applies here is somewhat complicated by that fact, particularly because appellate courts have given more or less deference to departures depending on the focus of the challenge. A close look at the caselaw at the various stages of the departure analysis provides some guidance. We emphasize initially that the decision whether to reverse a challenged sentence ultimately reflects the answer to the more fundamental question of whether the sentence imposed is excessive. See Spain, 590 N.W.2d at 90 (reducing a sentence by four years because the imposed sentence was disproportional to the severity of appellant`s conduct); State v. Partlow, 321 N.W.2d 886, 887 (Minn. 1982) (Kelly, J., dissenting) (agreeing with the majority that although substantial and compelling circumstances to depart existed, the sentence imposed was excessive); see also Minn. Stat.

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