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This opinion will be unpublished and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
A16-1856

State of Minnesota,
Respondent,

vs.

Stephen Jade Jackson,
Appellant.

Filed September 5, 2017
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-CR-15-26521

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presid ing Judge; Schellhas, Judge; and Stauber,
Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant seeks reversal of his conviction, arguing that the district court abused its
discretion (1) by denying appellant’s request for a continuance to seek new counsel to file
a motion to withdraw his guilty plea and (2) by imposing an improper sentence of 156
months in prison, which was an upward durational departure. We affirm.
FACTS
On August 25, 2015, appellant Stephen Jade Jackson was driving in southwest
Minneapolis searching for his ex -girlfriend, R.A., when he saw her standing in the street
with her friend T.M. and S.R.W., a man with whom appellant suspected R.A. was intimate.
Appellant and R.A. have a four -year-old daughter who, at th e time, was in the car with
appellant. Upon seeing R.A. with S.R.W., appellant became angry and accelerated his
vehicle towards them. As appellant sped towards them, C.P. was sitting in her parked car
with the door open and her legs outside of the car near where R.A., T.M., and S.R.W. were
standing. Appellant struck C.P. and her car at a high rate of speed, pinning her between
the two cars. As a result of this collision, R.A. and T.M. were knocked to the ground. C.P.
fell out of the car, and S.R.W. jumped out of the way to avoi d being hit. Appellant then
reversed his car, running over C.P.’s legs again. Before fleeing the sc ene, he stated “this
is all your fault,” while pointing toward R.A. C.P. suffered serious injuries and has been
diagnosed as permanently disabled. R.A. suffered some injuries and was hospitalized for
about a week.
3
Appellant was apprehended a number of we eks later. In an amended complaint,
respondent State of Minnesota charged appellant with two counts of attempted murder, one
count of first-degree assault, four counts of second-degree assault, one count of third-
degree assault, and three counts of criminal vehicular operation.
The state filed a notice to seek an aggravat ed sentence on several bases, including
that: (1) appellant committed the charged offense in the presence of a child; (2) C.P. was
particularly vulnerable because she was sitting in her car with her legs outside of the car
when appellant struck her with his car; and (3 ) C.P. was particularly vulnerable because
she was on the ground injured when appellant struck her a second time by reversing his
car.
On April 19, 2016, the parties reached a plea agreement that the district court
accepted. The plea agreement’s terms required appellant to plead gu ilty to one count of
first-degree assault with a 156-month aggrav ated sentence, and three counts of second-
degree assault each with a 21-month concurre nt prison sentence. The agreement also
required appellant to waive his right to a jury determination on the aggravating factors.
With a criminal-history score of three, a ppellant’s agreed-upon sentence constituted an
upward durational departure.
At the plea hearing, appellant admitted, on the record, that his four-year-old-
daughter was in the car with him at the time of the incident. Appellant also admitted that
the injuries C.P. suffered were substantial and serious. After appellant provided sufficient
facts to support his guilty plea, the district court accepted his guilty plea.
4
At the time of the plea, appellant was out on bail and ordered to return for sentencing
on July 1, 2016, but he failed to do so. 1 Once apprehended, appellant was sentenced on
August 25, 2016, pursuant to the terms of the plea agreement. At the sentencing hearing,
appellant requested a continuance because he wanted to retain private counsel and to
consider withdrawing his guilty plea. In making his request, appellant asked, “Your Honor,
I just wanted to—I know you don’t have to, but I wanted to ask if you . . . if it was possible
for you to reschedule my court date so I can hire . . . private counsel at a later time?” The
state opposed appellant’s request, noting that the case had been ongoing for a year and that
appellant had failed to retain private counsel during that time.
The district court denied appellant’s request. The district court noted that it would
not let appellant withdraw his plea because appellant had failed to present a justifiable basis
and that appellant “had plenty of time throughout this case if [he] wanted to hire [a private
attorney].” The district court sentenced appellant under the plea agreement to 156 months
in prison. This appeal follows.
D E C I S I O N
I. The district court did not abuse its discretion by denying appellant’s request
for a continuance to obtain new counsel to file a motion to withdraw his guilty
plea.
Appellant argues that the district court abused its discretion by denying his request
for a continuance of sentencing because the di strict court failed to fully understand and

1 Appellant was arrested at the airport around July 8, 2016, while with R.A.
5
consider his request and failed to inquire as to why appellant was seeking a new attorney
or to ask the length of continuance appellant sought. We disagree.
A continuance will be gran ted only if, based on all the surrounding facts and
circumstances, (1) exceptional circumstance s exist and (2) the demand is timely and
reasonable. State v. Vance , 254 N.W.2d 353, 35 8 (Minn. 1977). We review a district
court’s denial of a continuance for an abuse of discretion. State v. Mix, 646 N.W.2d 247,
250 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002). We will not reverse absent
a showing of prejudice due to the denial. Id. A district court abuses its discretion if it “acts
arbitrarily, without justification, or in contravention of the law.” Id. The district court has
broad discretion to consider whether to grant or deny a motion to continue the sentencing
hearing so long as the parties ha ve adequate time to prepare. See Minn. Stat. § 244.10,
subd. 1 (2014).
Here, the district court denied appellant’s request for a continuance, noting that
appellant had plenty of time to obtain new co unsel and had not yet done so. The district
court also noted that appellant had previously failed to appear at sentencing, failed to offer
any legitimate basis to withdraw his plea, an d failed to present any legitimate basis for a
delay in sentencing. Appellant has neither shown that exceptional circumstances existed
to permit the continuance or that his demand was timely and reasonable. Based on this
record, the district court’s denial of appellant’s continuance request was a proper exercise
of its discretion.

6
II. The district court did not abuse its discretion by imposing the parties’ agreed-
upon sentence, which constituted an upward durational departure.
Appellant argues that the district court abused its discretion by upwardly departing
and imposing the agreed-upon 156-month prison sentence. We disagree.
A district court may depart from the pres umptive sentencing gu idelines when the
record contains “substantial and compellin g circumstances” for the departure. State v.
Misquadace, 644 N.W.2d 65, 69 (Minn. 2002). Th e sentencing guidelines provide “a
nonexclusive list of factors that may be us ed as reasons for depa rture.” Minn. Sent.
Guidelines 2.D.3 (2014). The defendant must admit, after a valid ju ry waiver, any facts
used to support the departure. State v. Stanke, 764 N.W.2d 824, 828 (Minn. 2009). We
review a district court’s departure from the sentencing guidelines for an abuse of discretion.
State v. Hicks , 864 N.W.2d 153, 156 (Minn. 2015). We give great deference to district
courts for durational departures of up to twice the presumptive sentence. Dillon v. State,
781 N.W.2d 588, 596 (Minn. App. 2010) (citing State v. Thompson, 720 N.W.2d 820, 831
n.4 (Minn. 2006)), review denied (Minn. July 20, 2010). “The shorter the departure, the
greater the deference.” Id.
The presumptive guideline range for a convi ction of first-degree assault with a
criminal-history score of thr ee is 104 to 146 mont hs with a presumptive sentence of 122
months in prison. Minn. Sent. Guidelines 4.A (2014). Because appellant had a criminal-
history score of three, the district court’ s 156-month prison sentence was an upward
departure of 34 months from the presumptive sentence.
7
Appellant first argues that he did not adequately waive a jury determination of facts
that would support any of the state’s enumer ated aggravating factors, as required under
Blakely v. Washington, 542 U.S. 296, 301, 303-04, 124 S. Ct. 2531, 2536-37 (2004). To
be valid, a defendant’s waiver of his right to a jury determination of aggravating factors
must be knowi ng, voluntary, and intelligent. State v. Dettman , 719 N.W.2d 644, 651
(Minn. 2006). Appellant’s contention is not supported by the r ecord. The record
demonstrates that appellant’s counsel repeat edly advised him that he had a right to a
contested hearing before a jury on the aggravating factors and that appellant expressly
waived his right to do so. Fu rthermore, appellant’s counsel, on the record, told appellant
that admitting that a child was present in the vehicle during the charged offense could serve
as an aggravating factor, which appellant acknowledged. Moreover, appellant was served
with notice of the aggravating factors upon wh ich the state intended to rely in seeking an
upward departure. The record is clear that appellant understood the right he was waiving.
Therefore, appellant’s contention that his Blakely waiver was not valid is without merit.
Next, appellant argues that he did not admit any facts that established the
aggravating factors that would support an upward departure in this case. First, a defendant
who stipulates to a sentence greater than th e presumptive sentence, as done here, is not
allowed later to attack the sentence “on the gr ounds that he lacked notice of the [s]tate’s
intent to seek an upward departure.” State v. Hodges, 784 N.W.2d 827, 833 (Minn. 2009).
Additionally, as appellant acknowledged at the plea hearing, committing an offense “in the
presence of a child” is an aggravating factor justifying a departure from the presumptive
sentence. Minn. Stat. § 244.10, subd. 5a(a)(13) (2014); Minn. Sent. Guidelines 2.D.3.b(13)
8
(2014). A defendant commits a crime “in the presence” of a child if the child “saw, heard,
or otherwise witnessed the offense,” State v. Vance, 765 N.W.2d 390, 394 (Minn. 2009),
or “some portion of the commissi on of the offense in question.” State v. Robideau, 796
N.W.2d 147, 152 (Minn. 2011). “The mere pr esence of children in the home, absent any
evidence that they saw or heard the offe nse, is not a substantial and compelling
circumstance demonstrating that a defendant's conduct was significantly more serious than
that typically involved in the commission of the offense.” Vance, 765 N.W.2d at 394.
Here, appellant made sworn admissions after a valid Blakely waiver to the presence-
of-a-child aggravating factor. When asked by his attorney, appellant acknowledged that
his child was in the car with him when the incident occurred. Yet, appellant raises the
possibility that his admission is insufficient because his daughter might have been sleeping
during the incident, proof of wh ich is not supported by the re cord. Because the district
court’s reason for departure is factually su pported by the record, it did not abuse its
discretion.
Finally, appellant also argues that the district court cannot rely on the extensive and
serious injuries C.P. suffered as an aggrava ting factor to justify a departure because the
state failed to provide notice of it. Because appellant agreed to the upward departure under
the plea agreement, we conclude that appellant had notice of the state’s intent. See Hodges,
784 N.W.2d at 833. Additionally, we have previously held th at the district court may
properly consider the extent of a victim’s injuries when determining whether an upward
sentencing departure is appropriat e in a first-degree-assault case. State v. Felix , 410
N.W.2d 398, 401 (Minn. App. 1987), review denied (Minn. Sept. 29, 1987). Here,
9
appellant admitted to the seriousness and extent of C.P.’s injuries. Appellant admitted that
he reviewed the medical records that detail ed C.P.’s injuries, ac knowledged that she
suffered life-threatening injuries, and that C.P. may never be able to walk again. Because
appellant agreed to the departure and the record supports the departure, the district court
did not abuse its discretion.
Affirmed.