State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1646

State of Minnesota,
Respondent,

vs.

Renae Dawn Kramer,
Appellant.

Filed March 12, 2018
Affirmed
Schellhas, Judge

Mower County District Court
File No. 50-CR-14-801

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Kristen Nelsen, Mower County Attorney, Scott K. Springer, Assistant County Attorney,
Austin, Minnesota (for respondent)

John J. Leunig, Justin J. Duffy, The Law Office of John J. Leunig, Bloomington, Minnesota
(for appellant)

Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges her convictions of first-degree assault and first-degree
burglary and her se ntence, as well the district c ourt’s denial of her petition for

2
postconviction relief. She argues: (1) the district court (a) failed to vindicate her right to
counsel of her choice by denying her continuance request, and (b) abused its discretion in
imposing an upward durational departure; and (2) the postconviction court erred in denying
(a) her ineffective-assistance-of-counsel claim, and (b) her motion to withdraw her guilty
pleas and factual admissions related to the aggravating factors. We affirm.
FACTS
On April 8, 2014, respondent State of Minnesota charged appellant Renae Kramer
with first-degree assault and first-degree burglary. Kramer severely injured an 85-year-old
victim, who was a longtime acquaintance, while attempting to steal her prescription pain
medication. Kramer pushed the victim down the stairs to her basement, saw the victim on
the floor, left the victim in the dark, shut the basement door, left the house, and locked the
door behind her. Emergency personnel rescued the victim after she activated her
emergency-alert bracelet. The victim sustained two broken wrists, spinal fractures, and
head injuries that caused bleeding in her brain and distorted vision. The injuries
necessitated surgeries and rehabilitation therapy at a nursing home.
Kramer retained legal counsel in April 2 014. In August 2014, the district court
scheduled the trial for eight days in January 2015. The state provided pretrial notice that it
intended to seek an aggravated sentence based on particular vulnerability of the victim and
particular cruelty of the offense.
On the evening of January 15, 2015, Kramer advised her counsel that she wished to
fire him and asked another attorney to repr esent her. At a heari ng on January 16, the
prosecutor withdrew the state’s plea offer. After the hearing, Kramer’s original counsel of

3
record moved to withdraw fro m representing Kramer due to an “irretrievable breakdown
in the attorney client relationship.” The district court initially denied the motion.
On January 19, 2015, another attorney, whom Kramer wished to represent her, filed
a substitution-of-counsel form, appeared in court the next day on Kramer’s behalf, and
requested a continuance of the trial date so that he could prepare for trial and consult with
a “psychiatrist, psychologist, or toxicologist, or all three.” The attorney did not argue that
Kramer’s counsel of record had rendered ine ffective assistance to Kramer. The attorney
advised the district court that if it did not gr ant a continuance, he could not adequately or
ethically represent Kramer. The district cour t denied a continuance, and Kramer waived
her right to counsel and stated that she wished to proceed to trial pro se.
On January 21, 2015, Kramer hired a new attorney (plea attorney), who was able to
revive the state’s original plea offer. With assistance of the plea attorney, Kramer pleaded
guilty to first-degree assault and first-degree burglary. The distri ct court and the plea
attorney reviewed Kramer’s rights on the record, and Kramer admitted to facts to support
her plea and the aggravating factors. At the pl ea hearing, Kramer’s attorney asked for a
sentencing hearing that was “out a bit,” stating that he had “to get files from two different
attorneys to prepare for sentencing” and did not have “all the work product right now.”
The district court concluded that Kramer’s Blakely1 trial-rights waiver on the
aggravating factors was insufficient and ther efore conducted an additional hearing on

1 In Blakely v. Washington, the Supreme Court ruled that a criminal defendant has the Sixth
Amendment right to a jury trial on aggravating factors that would enhance a sentence. 542
U.S. 296, 304, 124 S. Ct. 2531, 2537−38 (2004).

4
April 15, 2015. Kramer waived her rights to a Blakely trial and again admitted facts to
support the previously identifie d aggravating factors. At se ntencing, the district court
granted the state’s upward-departure motion on the bases of particular vulnerability and
particular cruelty and sentenced Kramer to 180 months’ imprisonment.
Kramer petitioned for postconviction relie f on eight grounds. The postconviction
court granted an evidentiary hearing on Kramer’s plea-withdrawal claim and her claim that
her plea counsel rendered ineffective assistance but denied her other claims. Following an
evidentiary hearing, the postconviction court denied Kramer’s petition for postconviction
relief in its entirety.
This appeal follows.
D E C I S I O N
Denial of trial continuance
Kramer argues that the district court abused its discretion and violated her
constitutional rights by denying he r continuance motion days befo re the start of trial. “A
guilty plea by a counseled defendant has traditionally operated, in Minnesota and in other
jurisdictions, as a waiver of all non-jurisdicti onal defects arising prio r to the entry of the
plea.” State v. Jeffries , 806 N.W.2d 56, 64 (Minn. 2011 ) (quotation omitted). When a
defendant admits in ope n court that she is guilty of an offense charged, she “may not
thereafter raise independent claims relating to the depriv ation of constitutional rights that
occurred prior to the entr y of the guilty plea.” Id. (quotation omitted); but see Class v.
United States, No. 16-424, 2018 WL 987347, at *6 (U.S. Feb. 21, 2018) (recognizing that
“guilty plea does implicitly waive some claims, including some constitutional claims,” but

5
holding that guilty plea by itself does not bar federal criminal defendant from challenging
constitutionality of statute of conviction on direct appeal). Here, Kramer does not challenge
the constitutionality of the statute of convicti on, and her guilty plea operated as a waiver
of the prior defects she raises on appeal, in cluding the district court’s denial of her
continuance. The district court did not abuse its discretion by denying Kramer’s request for
a continuance.
Ineffective assistance of counsel
Kramer argues that the district court im properly denied relief on her ineffective-
assistance-of-counsel claim. An abuse-of-dis cretion standard applies when reviewing a
postconviction court’s decision, and an appellate court examines whether the
postconviction court’s findings are supported by sufficient evidence. State v. Whitson, 876
N.W.2d 297, 303 (Minn. 2016). An appellate court reviews factual findings for clear error,
and legal conclusions de novo. Id.
A criminal defendant has the right to “effective assistance of counsel.” Strickland v.
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). This right extends to the
plea negotiation process. State v. Ecker , 524 N.W.2d 712, 71 8 (Minn. 1994). In an
ineffective-assistance-of-counsel claim the defendant must show (1) counsel’s
performance was deficient, meaning it “fell below an obje ctive standard of
reasonableness,” and (2) the deficient performan ce prejudiced the defense, that is but for
counsel’s unprofessional errors, the result would have been different. Id. (quotation
omitted).

6
Performance
Kramer alleges that her plea attorney ’s performance was objectively unreasonable
because he failed to (1) advise her of the tr ue nature of the sentence she would receive
under the plea bargain, (2) advise her of her rights regarding the aggravating factors, and
(3) conduct a further investigation into the facts before advising her to plead guilty.
“The first Strickland prong—constitutional deficiency—is necessarily linked to the
practice and expectations of the legal co mmunity: The proper measure of attorney
performance remains simply reasonableness under prevailing professional norms.” Padilla
v. Kentucky , 559 U.S. 356, 366, 130 S. Ct. 1473, 1482 (2010) (quotation omitted).
“[D]efense counsel has the duty to communicate formal offers from the prosecution to
accept a plea on terms and conditions that may be favorable to the accused.” Missouri v.
Frye, 566 U.S. 134, 145, 132 S. Ct. 1399, 1408 (2012).
Regarding Kramer’s allegation that her pl ea attorney failed to advise her on the
nature of the plea bargain and her rights regarding the aggravating factors, the district court
found that the plea attorney discussed with Kr amer “the [state’s] pl ea offer, the potential
sentence that she would face if she was convicted and the aggravating factors were found,”
and that Kramer would have to waive her rights to a Blakely trial and stipulate to facts
underlying two aggravating factors. Additionally, the plea attorney testified that he had an
extensive conversation with Kr amer about her case, and that he “thoroughly” went over
the plea petition with her.
Kramer argues that these findings are cl early erroneous because the plea attorney
was “simply not credible” and that the c ourt’s credibility findings were “simply not

7
supported by the record.” In essence, Kramer asks us on review to find that her testimony
at the evidentiary hearing was credible and that the plea attorney’s testimony was not. But,
“[i]t is the province of the fact-finder to determine the weight and credibility to be afforded
the testimony of each witness.” State v. Kramer, 668 N.W.2d 32, 38 (Minn. App. 2003),
review denied (Minn. Nov. 18, 2003). This is especi ally true when resolution of the case
depends on conflicting testimony. Id. The district court credit ed the plea attorney’s
testimony, and we decline to override the district court’s credibility determination.
Further, Kramer argues that the district court’s findings regarding the plea attorney’s
level of advisement and preparation are clearly erroneous because he stated that he did not
possess certain documents in Kramer’s file a nd was only retained to revive the plea deal.
Kramer also asserts that the plea attorney could not have met Kramer’s father in his office
on January 20 between 3:30 and 5:30 p.m. because Kramer, and her file, were in court at
that time.
Findings are clearly erroneous “only if the reviewing court is left with the definite
and firm conviction that a mistake has been made.” State v. Roberts, 876 N.W.2d 863, 868
(Minn. 2016). After reviewing the record, we are not left with such a conviction. First, the
plea attorney’s testimony makes clear that the meeting with Kramer’s father, while initially
thought to be between 3:30 and 5:30 p.m., coul d have occurred later in the afternoon or
evening. Second, the a ttorney’s statement that he did not “have all the work product”
implied that he had reviewed Kramer’s file. Th ird, the fact that th e attorney went over
possible defenses and trial tactics with Kramer is not inconsis tent with the attorney being
hired to revive the plea deal.

8
As to Kramer’s claim of a failure to investigate, “c ounsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. “It is within
trial counsel’s discretion to forgo investiga tion of leads not reason ably likely to produce
favorable evidence.” Gustafson v. State , 477 N.W.2d 709, 713 (Minn. 1991). In an
ineffectiveness-of-counsel case, counsel’s d ecision to not investigate is given a “heavy
measure of deference,” and is assessed for reasonableness, examining all of the
circumstances. Strickland, 466 U.S. at 691, 10 4 S. Ct. at 2066. “The reasonableness of
counsel’s actions may be determined or subs tantially influenced by the defendant’s own
statements or actions.” Id.
The district court determined that the pl ea attorney’s decision to forgo further
investigation was not objectively unreasonable because (1) no additional investigation was
likely to produce favorable ev idence, and (2) Kramer limi ted the plea attorney’s
representation to reviving the state’s plea offer. The district court did not err in its
determinations. The plea attorney stated that he had read Kramer’s file, and based on the
information in that file a re asonable defense attorney could have decided that additional
research into a mental-illness or involunt ary-intoxication defense would have been
fruitless. Two doctors retained by Kramer’s first attorney, reviewed Kramer’s first
psychological evaluation under Minn. R. Crim. P. 20.02, which assessed Kramer’s mental
state at the time of the offense. Both doctors agreed with the state’s examiner that Kramer
was not laboring under such a defect of reason during the offense as to not know the nature
of her acts.

9
In order to assert an involuntary-intoxi cation defense Kramer would have had to
show that she became “unexpect edly intoxicated due to the ingestion of a medically
prescribed drug.” Minneapolis v. Altimus , 306 Minn. 462, 469, 238 N.W.2d 851, 857
(1976) (discussing the various forms of the involuntary-intoxication defense). When
raising such a defense, “the defendant must not know, or have reason to know, that the
prescribed drug is likely to have an intoxicating effect.” Id. at 470, 238 N.W.2d at 857.
The record evidence that Kramer’s plea attorney said that he reviewed shows that Kramer
was addicted to narcotics and was voluntarily under the influence of drugs the day of the
offense. Furthermore, the state’s evidence was strong in this case. Kramer was potentially
facing 234 months in prison for the first-degr ee-assault charge; Kramer’s first attorney
explored possible defenses to no avail; and Kramer hired the plea attorney to resurrect the
plea offer. Given the circumstances, the plea attorney made a reasonable choice to forgo
further investigation and advise Kramer to accept the plea offer.
Prejudice
Kramer also cannot show prejudice. When a defendant pleads guilty and later asserts
ineffective assistance of counsel, she must demonstrate “a reasonable probability that, but
for counsel’s ineffective representation,” she would not have entered her plea. Johnson v.
State, 673 N.W.2d 144, 148 (Minn. 2004). “A reasonable probability means a probability
sufficient to undermine confidence in the outcome.” Leake v. State , 767 N.W.2d 5, 10
(Minn. 2009) (quotation omitted).
Even assuming that Kramer’s plea attorney failed to properly advise her of her rights
and the consequences of her plea, the district court fully advised Kramer on the record at

10
two separate hearings on her constitutional ri ghts, her rights to a separate trial under
Blakely, and the potential sentence she could recei ve. And assuming the plea attorney’s
decision to forgo further investigation was unr easonable, Kramer does not allege that her
first attorney, who also advised her to accept the plea offer, was ineffective. In sum, Kramer
cannot show that but for her pl ea attorney’s supposed defi cient performance, the result
would have been different, a nd the district court did not abuse its discretion by denying
Kramer’s ineffectiveness-of-counsel claim.
Denial of plea withdrawal
Kramer argues that the district court erred in denying her petition for postconviction
relief on her plea-withdrawal claim. Kramer argues that her guilty plea and aggravating-
fact admissions were invalid because they were not intelligent, voluntary or accurate.
“A defendant has no absolute right to withdraw a guilty plea after entering it.” State
v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). After sentencing has occurred, a district court
must allow withdrawal of a guilty plea if necessary to correct a “manifest injustice.” Minn.
R. Crim. P. 15.05, subd. 1. “A manifest injustice exists if a guilty plea is not valid.” Raleigh,
778 N.W.2d at 94. “To be constitutionally valid, a guilty plea must be accurate, voluntary,
and intelligent.” Id. Whether a guilty plea is valid is a question of law that this court reviews
de novo. Id. The burden is on Kramer to show that her plea is invalid. Lussier v. State, 821
N.W.2d 581, 588 (Minn. 2012).

11
Intelligence
A plea must be intelligent “to insure th at the defendant understands the charges,
understands the rights he is waiving by pleading guilty, and understands the consequences
of his plea.” State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).
Kramer argues that her plea and admi ssions were not intelligent because she was
not aware of the consequences of her plea and her admissions. As previously discussed,
the district court’s findings that Kramer was adequately advised of her rights and the
consequences of her plea and admissions has a strong basis in the record. Kramer’s plea of
guilty and her admissions were intelligently made.
Voluntariness
“The voluntariness requirement ensures a defendant is not pl eading guilty due to
improper pressure or coercion.” Raleigh, 778 N.W.2d at 96. To determine whether a plea
is voluntary, appellate courts examine what the parties reasonably un derstood to be the
terms of the plea agreement. Id.
Kramer again asserts she wa s not properly advised and that her plea attorney
improperly pressured her to enter her plea and admissions by telling her a guilty plea was
her “only option” and by whispering to her at her plea hearing that she was required to say
“yes.” Again, the district court did not find Kramer or her father’s testimony credible and
instead credited the plea attorney’s testimony. The plea attorney denied making statements
improperly pressuring Kramer to plead guilty and make admissions. Kramer’s plea
attorney and first attorney said that they explained the plea offer to Kramer multiple times.

12
The district court also fully explained the pl ea deal and Kramer said she understood. The
plea was voluntary.
Accuracy
A plea must be accurate in order to “protect a defend ant from pleading guilty to a
more serious offense than he could be convicted of were he to insist on his right to trial.”
Trott, 338 N.W.2d at 251. “To be accurate, a plea must be established on a proper factual
basis.” Raleigh, 778 N.W.2d at 94. A district court will satisfy the requirement for a proper
factual record “by asking the defendant to express in his own words what happened.” Id.
A district court should be particularly wary of situations in which the factual basis is
established by asking a defendant only leading questions. Id.
Here, Kramer is correct that the colloquies of her guilty plea and aggravating-fact
admissions consisted entirely of counsel’s le ading questions and Kramer’s one- and two-
word answers. No one at the plea hearing asked Kramer to recount in her own words what
she did to commit the charged crimes. But le ading questions during a plea colloquy, by
themselves, do not inva lidate a guilty plea. Barnslater v. State , 805 N.W.2d 910, 914
(Minn. App. 2011). “A defendant may not w ithdraw his plea simply because the court
failed to elicit proper responses if the record contains sufficie nt evidence to support the
conviction.” Raleigh, 778 N.W.2d at 94 (emphasis added); see Lussier 821 N.W.2d at 589
(examining grand-jury transcri pt to assess accuracy of plea and concluding that “plea
petition and colloquy may be supplemented by other evidence to establish the factual basis
for a plea”); Trott, 338 N.W.2d at 252 (examining complain t and pictures of victim in
assessing accuracy of plea when the defendant “freely admitted” allegations).

13
Here, the record contains sufficient evidence to support a conviction of first-degree
assault. The victim’s testimony at her depos ition, the police reports, and complaint show
that Kramer intentionally pushe d the victim down a flight of stairs, causing her injuries.
The victim’s injuries constituted “great bodily harm” because they caused a high
probability of death when she h it her head and bled, and the in juries led to a “permanent
or protracted loss or impairment of the function” of her hands and vision. See Minn. Stat.
§§ 609.02, subd. 8, .221, subd. 1 (2012) (defining “great bodily harm” and first-degree
assault).
Sufficient evidence in the record also supports Kramer’s conviction of first-degree
burglary. The record shows th at Kramer entered the victim’s home and remained inside
after the victim demande d that Kramer leave. See Minn. Stat. § 609. 581, subd. 4 (2012)
(providing that “enters a build ing without consent” means “t o remain within a building
without the consent of the pe rson in lawful possession”). The record demonstrates that
Kramer entered the victim’s home with the intent to steal her pills, and assaulted the victim
to accomplish this goal. See Minn. Stat. § 609.582, subd. 1 (2012) (defining first-degree
burglary).
The record also contains sufficient fact s underlying the aggravating factors. The
victim lived alone and was 85 years old, 4’11” tall, and weighed 80 pounds. After Kramer
pushed the victim down the stairs, she observed the victim in her inju red state, left the
victim in a dark basement, and locked the door to the victim’s home.
In sum, although th e colloquies of the guilty plea s and admissions contained only
leading questions, the record provides substantial credible evidence in support of Kramer’s

14
convictions and facts underlying the aggravating factors. The postconviction court did not
err in rejecting Kramer’s plea-withdrawal claim.
Upward-durational-departure sentence
Kramer had a criminal-history score of one at sentencing. The presumptive sentence
for first-degree assault was 98 months in pr ison. Minn. Sent. Guidelines 4.A. (2014).
Kramer argues that the district court im properly granted the state’s motion for an
aggravated sentence of 180 months based on the aggravating factor of “particular cruelty.”
Appellate courts review a district court’ s decision to depart from the presumptive
guidelines sentence for an abuse of discretion. Tucker v. State, 799 N.W.2d 583, 585 −86
(Minn. 2011). “An upward departure will be reversed if the sentencing court’s articulated
reasons for the departure are improper or inad equate and the evidence in the record is
insufficient to justify the departure.” Id. at 586 (quotations omitted).
A district court may depart upward from the presumptive sentence under the
Minnesota Sentencing Guidelines “provided th at the court finds and makes a record of a
substantial and compelling justification for a departure.” State v. Misquadace, 644 N.W.2d
65, 69 (Minn. 2002); Minn. Sent. Guidelines 2.D (2014). Proper reasons to depart upward
include the victim’s particular vulnerability due to age, and becaus e “[t]he victim was
treated with particular cruelty.” Minn. Sent. Guidelines 2.D.3. The district court used these
two reasons to depart, and therefore its reasons were proper.
A sentencing court may not base an upward departure on factors that the legislature
has already taken into account in determining the degree of the seriousness of the offense.
State v. Thompson, 720 N.W.2d 820, 830 (Minn. 2006). Something more than the elements

15
of the offense must exist to justify a departure. State v. Blegen , 387 N.W.2d 459, 464
(Minn. App. 1986), review denied (Minn. July 31, 1986). The question here is whether the
cruelty inflicted by Kramer upon the victim was “greater than the personal injury already
included as an element of the crime.” Id.
Kramer contends that evidence in the record was insufficient to justify the departure
based on particular cruelty because first-degree assault, by its nature, is inherently cruel
and her offense was not significantly more serious than a typical first-degree assault case.
Kramer also argues that her conduct did not rise to the cruelty shown in a number of assault
cases that resulted in affirmed upward departures. For these propositions, Kramer cites the
following: State v. Felix , 410 N.W.2d 398, 400 (Minn. App. 1987) (affirming upward
departure when “the assault was particularly vicious and tortur ous in that the victim lost
consciousness early and repeatedly was beaten by the defendant”), review denied (Minn.
Sept. 29, 1987); State v. Anderson, 370 N.W.2d 703, 706−07 (Minn. App. 1985) (affirming
upward departure involving repeated be atings and stamping of victim’s head), review
denied (Minn. Sept. 19, 1985); State v. Davis , 540 N.W.2d 88, 91 (Minn. App. 1995)
(upward departure affirmed in assau lt with kicking of pregnant woman), review denied
(Minn. Jan. 31, 1996); State v. Steinhaus , 405 N.W.2d 270, 271 −72 (Minn. App. 1987)
(upward departure affirmed in assault with multiple beati ngs of infant causing severe
injuries). While these cases i nvolve egregious conduct, we are not persuaded that they
demonstrate the converse: that Kramer’s c onduct was not egregious and only involved a
“typical” first-degree assault.

16
Kramer also relies on State v. Saharath, 355 N.W.2d 312, 314 (Minn. App. 1984),
in which this court ruled that the district court abused its discretion in granting an upward
departure in an assault case because its basis for the departure was merely that the victim
sustained a “severe and perman ent physical injury.” This case does not involve the
“typical” first-degree assault injuries like in Saharath. A victim’s severe injuries may be
considered as an aggravating factor when th e injuries involve all the defining factors of
“great bodily harm.” Felix, 410 N.W.2d at 401.
Here, due to the victim’s head injury a nd Kramer’s decision to leave the victim
locked in her home on the basement floor, the victim was subject to a “high probability of
death” and “permanent or protracted loss or impairment” of a body part due to her injured
wrists, back, and distorted vision, and “other serious bodily harm” due to her ongoing
continued pain, and need for wrist surgeries. See Minn. Stat. § 609.02, subd. 8 (defining
“great bodily harm”).
Furthermore, as the state notes, the dist rict court based its particular-cruelty
departure on the manner in which Kramer inflicted the injuries on the victim, not only the
injuries themselves. For example, the district court noted that the assault was particularly
cruel because the victim was 85 years old, weighed 80 pounds, and Kramer “pried” the
victim’s hands off the railing in order to push her down the stairs. The court also found that
Kramer acted particularly cruel when, after observing the victim’s injuries at the bottom of
the stairs, Kramer walked upstairs and locked the door behind the victim, leaving her alone
in the basement. We agree with the district court that the manner in which Kramer
completed the assault was particularly cruel.

17
Citing Tucker, 799 N.W.2d at 587, Kramer argues that “[f]leeing the scene of the
offense and abandoning the victim is typical behavior” in an assault case. But Kramer did
not flee the scene once she pushed the victim. She coldly walked up the basement stairs
and spent about ten minutes looking through drawers for pills. The victim was too
frightened to press her emergency-alert bracelet until Kramer left the home.
Kramer argues that the district court’s fi nding that Kramer “pried” the victim’s
hands off of the stair railing has no basis in the reco rd. Findings of fact are reviewed for
clear error. State v. Blom, 682 N.W.2d 578, 616 (Minn. 2004) “Pry” means to “raise, move
or force open with a lever,” or “to obtain with effort or difficulty.” The American Heritage
Dictionary 1413 (4th ed. 2006 ). The victim said that her hand was on a staircase railing
when Kramer pushed her and that because of Kramer’s two-handed push against her chest
she could not hold on anymore. Kramer was only able to move and force the victim’s hand
off the railing with the leverage of her push a nd with “effort or difficulty.” The district
court’s finding is not clearly erroneous, a nd the court did not abuse its discretion by
imposing the upward-departure sentence.
Disparate sentence
Kramer argues that her sentence of 180 months is excessive. An appellate court
affords a district court “great discretion in the imposition of sentences” and will not “simply
substitute [its] judgment for that of the [district] court.” State v. Spain, 590 N.W.2d 85, 88
(Minn. 1999).
Even when an upward departure is justifie d “the extent of the departure should be
limited to that justified by the reason for the departure.” State v. Schantzen, 308 N.W.2d

18
484, 487 (Minn. 1981). After considering the whole record, an appellate court may limit a
departure, when it has “a strong feeling” th at the sentence is not “proportional to the
severity of the offense of conviction and the extent of the offender’s criminal history.” Id.
(footnote and quota tion omitted). In judging whether a sentence is disproportionate, an
appellate court’s decision “must be based on [its] collective, collegial experience in
reviewing a large number of criminal a ppeals from all the judicial districts.” Spain, 590
N.W.2d at 89 (quotation omitted).
Generally, the “upper limit” of an upwar d departure is double the presumptive
sentence. State v. Evans , 311 N.W.2d 481, 483 (Minn. 19 81). But rare ca ses exist where
the appropriate sentence may be the statutory maximum, which in this case is 240 months.
Id.; Minn. Stat. § 609.221, subd. 1. A 196- month sentence would have been a double
durational departure from the presumptive se ntence of 98 months. The district court’s
sentence of 180 months did not exceed the “upper limit” in Evans. See 311 N.W.2d at 483
(stating that the upper limit of upward departure is double presumptive sentence).
Kramer argues that statistics from th e Minnesota Sentencing Guidelines
Commission show her sentence is excessive. Kramer states that from 2005–2014, the
statewide average sentence im posed on a first-degree-as sault conviction when the
defendant had a criminal-histo ry score of one was 99.5 mont hs. These statistics are not
convincing, though, because th ey do not show the average se ntence received for a first-
degree assault with two aggravating factors found, as is the case for Kramer.
On several occasions, this court has upheld sentences in first-degree assault cases
with more than a double upward departure:

19
In State v. Leonard , we concluded that the defendant’s
continued assaults on an infant justified a nearly triple
durational departure to the st atutory maximum sentence. 400
N.W.2d 206, 210 (Mi nn. App. 1987). In State v. Wickstrom ,
we affirmed a 2.5 times departure from the presumptive
sentence for a defendant who be at and kicked a woman who
was eight months pregnant for 20 minutes in the presence of
her child. 405 N.W.2d 1, 6–7 (Minn. App. 1987), review
denied (Minn. June 30, 1987). And in State v. Steinhaus , we
upheld a departure that resulted in a sentence that nearly tripled
the presumptive sentence when a father severely beat his five-
week-old son. 405 N.W.2d 270, 271–72 (Minn. App. 1987).

Dillon v. State, 781 N.W.2d 588, 60 2 (Minn. App. 2010), review denied (Minn. July 20,
2010). While Kramer’s assault of the victim in this case was not con tinued or prolonged,
it was committed against a vulnerable victim resulting in the infliction of serious permanent
injuries. We therefore do not have “a strong feeling” that Kramer’s sentence of less than a
double durational departure is excessive or disproportionate to the severity of the offense.
Affirmed.