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This opinion will be unpublished and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
A16-1046

State of Minnesota,
Respondent,

vs.

Guy Robert Franklin Rabold,
Appellant.

Filed March 13, 2017
Affirmed in part, reversed in part, and remanded
Worke, Judge

St. Louis County District Court
File No. 69DU-CR-15-1884

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

Mark S. Rubin, St. Louis County Attorney, Kristen E. Swanson, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges his 240- month sentence for first-degree aggravated robbery,
arguing that the district court abused its discretion by imposing an upward durational
departure to the statutory maximum sentence. Appellant also argues that the district court
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erred by imposing a sentence on his theft-of-a- motor-vehicle conviction. Because the
district court did not abuse its dis cretion by sentencing appellant to 240 months for
aggravated robbery based on its determination that appellant is a dangerous offender, we
affirm in part. But because appellant’s theft-of-a-motor-vehicle conviction arose out of the
same behavioral incident as other offenses for which he was also sentenced, we reverse in
part and remand for the district court to vacate that sentence. We also conclude that the
issues raised in appellant’s pro se supplemental brief are without merit.
FACTS
In the early morning hours of June 5, 2015, L.L. woke up to the sounds of appellant
Guy Robert Franklin Rabold and his accomplice John Sorenson breaking into her home.
L.L. woke M.F., who was sleeping next to her.
Rabold and Sorenson told L.L. and M.F. to open the bedroom door or they would
shoot. M.F. opened the door. Rabold and Sorenson held firearms with flashlights taped to
the barrels that were shining in the victims’ eyes. Sorenson ordered the victims to take off
their clothes. Rabold was standing next to Sorenson and did not object to the order.
When L.L. and M.F. were completely naked, Rabold and Sorenson, with their guns
to the victims’ heads, ordered them downstairs to a gun safe. The victi ms were initially
ordered to lie down in a basement hallway, but M.F. was soon told to get up and open the
safe. After opening the safe, M.F. was ordered to lie down in the hallway with L.L. Rabold
then threw bathrobes over the victims.
As Rabold removed guns from the safe, Sorenson stood guard over the victims and
pulled the robes off of them. Sorenson then began to sexually assault L.L. Rabold entered
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the hallway, saw Sorenson sexually assaulting L.L., and said, “We’re not doing that.”
Rabold and Sorenson then left, threatening to come back and kill the victims if they moved.
As Rabold and Sorenson left the property, they saw someone coming up the
driveway with a flashlight. Rabold dropped the guns he was carrying and ran to a
neighboring property. He found an unlocked vehicle with the key in the ignition. He drove
away but was apprehended in the stolen vehicle before leaving the area.
In a police interview, Rabold admitted to taking part in the robbery. He said that he
knew the victims and knew about the gun safe because he had previously dated L.L.’s
daughter and had been to the home. He claimed that when he saw Sorenson sexually
assaulting L.L., he slammed Sorenson into a wall and punched him multiple times. Neither
victim saw or heard a physical confrontation between Rabold and Sorenson.
Rabold was charged with four counts: (1) aiding and abetting first-degree
aggravated robbery; (2) first-degree burglary; (3) felon in possession of a firearm; and
(4) theft of a motor vehicle. He pleaded guilty to all four counts and waived his right to a
jury trial on aggravating sentencing factors.
After a sentencing court trial, the district court determined that the current offenses,
Rabold’s prior convictions, and his high frequency rate of criminal activity made hi m a
danger to public safety, which qualified him as a “dangerous offender.” See Minn. Stat.
§ 609.1095, subd. 2 (2014). The district court also determined that an upward departure
was justified because the victims’ nudity made them particularly vulnerable.
At Rabold’s sentencing hearing, the state requested the statutory maximum sentence
of 240 months in prison on count one. Minn. Stat. § 609.245, subd. 1 (2014). The state
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asked the district court to impose the sentence solely based on the finding that Rabold was
a “dangerous offender” and without regard to particular vulnerability. Before imposing
sentence, the district court noted the severity of the crime, stating that it was “a hair’s breath
away from two murders” and “well planned out.” The district court then noted Rabold’s
long criminal record and his repeated failures to turn his life around. The district court
imposed the statutory maximum sentence on count one and concurrent prison terms on the
remaining counts. This appeal followed.
D E C I S I O N
Upward departure
The Minnesota Sentencing Guidelines establish a presumptive sentencing range
based on the offense and the offender’s criminal history. Minn. Stat. § 244.09, subd. 5
(2014); Minn. Sent. Guidelines 2.C.1 (2014). This court reviews the district court’s
decision to depart from the presumptive sentencing range for an abuse of discretion. Vickla
v. State, 793 N.W.2d 265, 269 (Minn. 2011). If the reasons for a departure are “legally
permissible and factually supported in the record, then [this court] will affirm the
departure.” Id. (quotation omitted).
“The sentencing guidelines require compelling circumstances to justify a durational
departure, and [Minnesota caselaw] requires the existence of severe aggravating
circumstances before a court may impose a sentence greater than double the presumptive
sentence.” Neal v. State, 658 N.W.2d 536, 545 (Minn. 2003). But “[t]he dangerous-
offender statute is a sentencing statute that permits durational departures not otherwise
authorized by the sentencing guidelines.” Id. The statute allows the district court to impose
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an upward departure if the offender (1) was at least 18 years old at the time of the current
offense; (2) the current offense is a felony and a violent crime; (3) the offender has two or
more prior convictions for violent crimes; and (4) the fact -finder determines that the
offender is a danger to public safety. Minn. Stat. § 609.1095, subd. 2. A finding that the
offender is a danger to public safety may be based on the offender’s past criminal behavior,
such as the offender’s high rate of criminal activity or juvenile adjudications, or the fact
that the present offense involved an aggravating factor that would justify a durational
departure. Id., subd. 2(2).
Under the dangerous -offender statute, the offender’s criminal history, rather than
aggravating factors, justifies the departure. Neal, 658 N.W.2d at 545. The statute does not
limit the length of a departure. Id. If the offender meets the statutory criteria, then a
departure up to the statutory maximum sentence may be imposed. Id. No severe
aggravating factors are necessary to impose a more than double departure. Id. at 546.
Rabold argues that in applying the dangerous-offender statute the district court
erroneously determined that he has three prior violent-crime convictions. The district court
found that Rabold has the following convictions: second-degree arson; felon in possession
of a firearm; first-degree criminal damage to property; third-degree burglary (two
convictions); theft; motor-vehicle theft (three convictions); and tampering with a motor
vehicle. Only two of these convictions—second-degree arson and felon in possession of a
firearm—qualify as violent crimes. See Minn. Stat. § 609.1095, subd. 1(d) (2014) (listing
offenses defined as violent crimes). Nevertheless, the dangerous-offender statute requires
only two prior convictions for violent crimes. Id., subd. 2(1). Rabold concedes that he has
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the necessary two prior convictions and does not challenge the district court’s
determinations that he is a danger to public safety and otherwise meets the dangerous-
offender statutory criteria. Accordingly, the district court’s erroneous determination that
Rabold has a third prior conviction for a violent crime does not af fect the validity of the
departure. See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (stating that “[i]f the
reasons given justify the departure, the departure will be allowed” and that even “[i]f the
reasons given are improper or inadequate, but there is sufficient evidence in the record to
justify departure, the departure will be affirmed”).
Rabold also argues that his 240- month sentence “unfairly exaggerates the
criminality of [his] conduct” and is “disproportionate, unreasonable, and unjustified by the
circumstances of th[ e] case.” The supreme court explained in Neal that, although the
dangerous-offender statute authorizes greater than double upward departures without the
presence of severe aggravating circumstances, “to avoid disproportionate sentences, courts
should use caution when imposing sentences that approach or reach the statutory maximum
sentence.” 658 N.W.2d at 546.
In Neal, the district court used the dangerous-offender statute to impose the statutory
maximum sentence of 480 months for a kidnapping conviction. Id. at 541. The sentence
was more than four times the presumptive term. Id. at 541-42. The supreme court
compared the sentence to sentences in other kidnapping cases and concluded that the 480-
month prison term was “excessive and unreasonable.” Id. at 547-48. Because the
dangerous-offender statute focuses on criminal history and criminal history is already
accounted for in calculating the presumptive sentence, the supreme court warned that,
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“when severe aggravating circumstances are not present, imposing more than a double
durational departure under the dangerous- offender statute may artificially exaggerate the
defendant’s criminality because the defendant’s criminal record is considered twice.” Id.
at 546.
Here, Rabold had a criminal-history score of ten. His first-degree aggravated
robbery conviction had a presumptive sentencing range of 95 to 132 months, with a mid -
point of 111 months. See Minn. Sent. Guidelines 2.B.2.c, 4.A (2014) (sentencing
guidelines grid and description of custody -status point). The district court imposed the
statutory maximum sentence of 240 months. Accordingly, the district court imposed a
departure of more than double the middle of the presumptive range but significantly less
than double the maximum presumptive sentence. This departure is significantly smaller
than the more-than-quadruple departure in Neal. Moreover, because of Rabold’s high
criminal-history score, the presumptive sentence does not account for his entire criminal
history. The presumptive sentencing range would have been the same had Rabold’s
criminal-history score been several points fewer. See id.
In any event, the district court used the requisite caution in imposing the statutory
maximum sentence. The district court carefully considered Rabold’s high rate of criminal
activity. It found that Rabold had three felony adjudications (ten total) from the ages of 15
to 18. Since turning 18 in 2009, Rabold has been convicted of nine felony offenses, not
including the four additional felonies stemming from the June 5, 2015 robbery . Rabold
has been incarcerated for much of his adult life. At the time he committed the current
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offenses, Rabold had been out of prison for only eight months and was still on parole.
These facts support the district court’s imposition of the statutory maximum sentence.
Our review of whether Rabold’s sentence unfairly exaggerates his criminality is also
“guided by past sentences imposed on other offenders.” State v. McLaughlin, 725 N.W.2d
703, 715 (Minn. 2007). “But for a sentence to be comparable, the sentencing departure
must be based upon the same or similar reasons.” Vickla, 793 N.W.2d at 270.
Rabold compares his sentence to the sentence imposed in State v. Evans. See 347
N.W.2d 813 (Minn. App. 1984), review denied (Minn. July 26, 1984). Evans is not
comparable. It involved a 116- month sentence for felony murder and two concurrent 54-
month sentences for attempted aggravated robbery and burglary with a dangerous weapon.
Id. at 817-18. Evans not only did not involve a departure based on the dangerous-offender
statute but does not appear to have involved a departure of any kind. Rabold also cites to
an unpublished opinion of this court and compares his sentence to the sentence imposed in
that case. Unpublished opinions are not precedential, Minn. Stat. § 480A.08, subd. 3
(2016), and the case cited is inapposite and unpersuasive.
The Minnesota Supreme Court has affirmed a statutory maximum sentence based
on the dangerous-offender statute for an offense similar to the aggravated robbery involved
here. In State v. Smallwood, the supreme court affirmed a 240- month statutory maximum
sentence for first-degree burglary. 594 N.W.2d 144, 149- 50, 158 (Minn. 1999).
Smallwood broke into a sleeping woman’s home in the early morning hours. Id. at 147.
When the victim woke up, Smallwood was shirtless and standing over her, adjusting the
button on his pants, and rubbing her thigh. Id. When she protested, Smallwood threatened
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to “cut” her. Id. The victim screamed, and Smallwood fled. Id. Smallwood’s sentence
was more than a quadruple departure based on the dangerous -offender statute and his
touching and rubbing the victim’s body. Id. at 157-58. The supreme court concluded that
the sentence was not disproportionate to other similar offenders. Id. at 158.
Even setting aside Sorenson’s sexual assault of L.L., Rabold’s actions are similar to
Smallwood’s. Although Rabold did not sexually touch the victims, he and his accomplice
broke into a home in the middle of the night, confronted the victims in their bedroom,
ordered the victims to undress, and threatened the victims with weapons. Our review of
similar cases indicates that Rabold’s 240- month sentence does not exaggerate his
criminality and is not otherwise disproportionate, unreasonable, or unjustified by the
circumstances of the case.
Rabold claims that the upward departure was not warranted because he was
remorseful and he intervened to stop Sorenson from further sexually assaulting L.L. But
these factors have no bearing on the dangerous-offender statute, which Rabold concedes
was the sole ground for departure. Moreover, Rabold was not charged with criminal sexual
conduct, and his efforts to stop the sexual assault do not lessen his culpability for
aggravated robbery. While Rabold stopped Sorenson from further sexually assaulting L.L.,
his participation in the robbery and his acceptance of Sorenson’s order that the victims
undress created the conditions that allowed the sexual assault to happen in the first place.
The district court properly departed based on the dangerous-offender statute, and
Rabold’s 240-month sentence does not exaggerate his criminality. The district court did
not abuse its discretion by imposing the statutory maximum sentence.
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Theft-of-a-motor-vehicle sentence
Rabold argues, and the state concedes, that the district court erred by imposing a
sentence for motor-vehicle theft because the offense arose out of the same behavioral
incident as the other three counts. We agree. “[I]f a person’s conduct constitutes more
than one offense under the laws of this state, the person may be punished for only one of
the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any
other of them.” Minn. Stat. § 609.035, subd. 1 (2014). “[M]ultiple sentences may not be
used for two offenses if the defendant, substantially contemporaneously committed the
second offense in order to avoid apprehension for the first offense.” State v. Gibson, 478
N.W.2d 496, 497 (Minn. 1991). Rabold committed motor- vehicle theft immediately
following the aggravated robbery and in an effort to avoid apprehension. Accordingly, we
reverse the district court’s imposition of sentence on the theft-of -a-motor-vehicle
conviction and remand with instructions to vacate that sentence.
Rabold’s pro se supplemental brief
In his pro se supplemental brief, Rabold claims ineffective assistance of counsel and
argues that the district court abused its discretion by imposing an upward departure on
count one. In claiming that his attorney was ineffective, Rabold fails to assert either that
his attorney’s performance fell below an objective standard of reasonableness or that the
result of the proceeding would have been different if not for his attorney’s alleged errors.
See Nissalke v. State, 861 N.W.2d 88, 94 (Minn. 2015) (explaining the standard for an

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ineffective-assistance-of-counsel claim). Rabold’s sentencing claim mirrors the claims
raised in his principal brief. After thoroughly reviewing these claims , we conclude that
they are without merit.
In sum, we affirm Rabold’s 240- month sentence for aggravated robbery, and we
reverse Rabold’s theft- of-a-motor-vehicle sentence and direct the district court to vacate
that sentence on remand.
Affirmed in part, reversed in part, and remanded.