State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0979

State of Minnesota,
Respondent,

vs.

Tarey Marquan Hill,
Appellant.

Filed May 6, 2019
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CR-17-23126

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Rodenberg, Judge; and
Reilly, Judge.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
In this direct appeal from judgment of conviction, appellant argues that (1) the
district court erred by imposing an upward departure at sentencing, and (2) the sentencing
departure violated appellant’s jury trial rights under Blakely. We affirm.
FACTS
On September 12, 2017 , appellant Tarey Marquan Hill and two other individuals
“knocked out and robbed” M.R.M. in Minneapolis. M.R.M. was left bleeding and there
was blood on the sidewalk where the attack occurred. Video camera footage showed
appellant and two other individuals strike M.R.M. several times, take items from M.R.M.,
and run away. After a short chase, police officers detained appellant and the two other
individuals and found M.R.M.’s personal items on one of appellant’s co -defendants.
M.R.M. was transported to the hospital with a broken nose and a broken orbital bone.
The state charged appellant with first-degree aggravated robbery under Minn. Stat.
§ 609.245, subd. 1 (2016). Appellant agreed to enter a plea of guilty to an amended charge
of third-degree assault, substantial bodily harm, in violation of Minn. Stat. § 609.223, subd.
1 (2016). The parties agreed to an upward departure from the presumptive sentence of 24
months in prison, to a sentence of 36 months in prison. At the guilty-plea hearing, defense
counsel questioned appellant as to each of his rights. Appellant acknowledged that he
reviewed the plea petition before signing, understood the terms of the document and the
rights he was giving up, and understood that by the terms of the agreement he was “going
to be sentenced to the Department of Corrections for 36 months.” During the factual basis

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portion of the plea hearing, appellant admitted that he “struck” M.R.M., breaking his nose
and orbital bone. Appellant agreed that breaking a person’s nose and orbital bone “could
generally be considered substantial bodily harm.” Appellant acknowledged that when he
hit M.R.M., the victim was “prone” and “on the ground or close to being on the ground.”
The district court accepted appellant’s guilty plea to the crime of third -degree
assault, substantial bodily harm, and sentenced him to 36 months in prison under the terms
of the negotiated plea agreement. The district court noted that the sentence was a
dispositional and durational departure from the sentencing guidelines based on the
agreement of the parties and the seriousness of the offense. This appeal follows.
D E C I S I O N
I. The district court did not abuse its discretion by imposing an upward
departure from the presumptive guidelines sentence.
Appellant challenges the district court ’s decisi on to depart from the sentencing
guidelines. The Minnesota Sentencing Guidelines were created to ensure “uniformity,
proportionality, rationality, and predictability in sentencing.” State v. Misquadace , 644
N.W.2d 65, 67 (Minn. 2002). A district court may depart from the guidelines “only when
substantial and compelling circumstances are present.” Taylor v. State, 670 N.W.2d 584,
587 (Minn. 2003). “Substantial and compelling circumstances are present when the
defendant’s conduct in the offense of conviction was significantly more or less serious than
that typically involved in the commission of the crime in question.” State v. Abrahamson,
758 N.W.2d 332, 337-38 (Minn. App. 2008) (quotation omitted). Where the district court
states its reasons for depar ture on the record, we determine if the reasons justify the

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departure; if they do, the departure will be allowed. Id. at 338. We review a district court’s
decision to depart from the presumptive sentence for an abuse of discretion. Taylor, 670
N.W.2d at 588. “A district court abuses its discretion when its reasons for departure are
legally impermissible and insufficient evidence in the record justifies the departure.” State
v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
Appellant argues that the distric t court erred by imposing an upward departure .
Appellant’s sentence is the result of a negotiated plea agreement. “The essence of plea
agreements . . . is that they represent a bargained -for understanding between the
government and criminal defendants in which each side foregoes certain rights and
assumes certain risks in exchange for a degree of certainty as to the outcome of criminal
matters.” State v. Meredyk, 754 N.W.2d 596, 603 (Minn. App. 2008) (quotation omitted).
“[N]egotiated plea agreements that include a sentencing departure are justified . . . in cases
where substantial and compelling circumstances exist.” Misquadace, 644 N.W.2d at 71.
However, a plea agreement standing alone does not create substantial and compelling
circumstances. Id. Instead, a district court must articulate proper and adequate reasons for
an upward departure, and the record must include evidence supporting the departu re.
Tucker v. State , 799 N.W.2d 583, 586 (Minn. 2011); Minn. Sent. Guidelines 2.D.1.c
(2016).
Additionally, a district court may not base an upward departure on factors the
legislature already took 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

5
the elements 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).
Appellant entered a guilty plea to an amended charge of third -degree assault. The
statute provides that, “Whoever assaults another and inflicts substantial bodily harm may
be sentenced to imprisonment for not more than five years or to payment of a fine of not
more than $10,000, or both.” Minn. Stat. § 609.223, subd. 1. “Substantial bodily harm” is
“bodily injury which involves a temporary but substantial disfigurement, or which causes
a temporary but substantial loss or impairment of the function of any bodily member or
organ, or which causes a fracture of any bodily member.” Minn. Stat. § 609.02, subd. 7a
(2016).
Here, appellant admitted that he struck M.R.M., breaking the victim’s nose and
orbital bone. Appellant admitted that breaking M.R.M.’s nose and orbital bone “could
generally be considered substantial bodily harm.” The district court held that substantial
and compelling reasons justified a departure from the guidelines sent ence based on
appellant’s admission that he broke two of the victim’s bone s. Appellant cites to three
unpublished cases to support his argument that the victim’s broken nose and broken orbital
bone are consistent with injuries suffered by victims in other third-degree assault cases and
do not make this offense significantly more serious than the typical offense. 1 We agree

1 See Maddox v. State, 2005 WL 287533, *1 -2 (Minn. App. Feb. 8, 2005) (reversing and
remanding for evidentiary hearing on calculation of criminal -history score in third-degree
assault case where defendant broke his girlfriend’s orbital socket and nose); State v.
Hunter, 2003 WL 21386479, *2 (Minn. App. June 17, 2003) (affirming third-degree assault
conviction where defendant broke victim’s nose and fractu red her orbital bone); State v.
Anderson, 2002 WL 857694, *1 -2 (Minn. App. May 7, 2002) (affirming third -degree

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that appellant’s conduct was not “significantly more . . . serious than that typically involved
in the commission of the crime in quest ion.” Abrahamson, 758 N.W.2d at 337 -38
(quotation omitted) . And the district court departed upwards based on factors that the
legislature already took into account in determining the seriousness of a third -degree
assault crime. Because the reasons relied upon by the district court relate to elements of
the offense itself, they do not justify an upward departure.
When the reasons given for a departure are improper or inadequate, we examine the
record to determine whether there is sufficient evidence in th e record to justify the
departure. See State v. Geller , 665 N.W.2d 514, 516 (Minn. 2003 ) (requiring appellate
courts to independently review record to determine the sufficiency of the district court ’s
reasons for departure) . A single aggravating factor m ay support an upward sentencing
departure. State v. O ’Brien, 369 N.W.2d 525, 527 (Minn. 1985). A victim’s particular
vulnerability is an aggravating factor that may support an upward departure. Minn. Sent.
Guidelines 2.D.3.b (2018). This court has previously affirmed an upward departure where
the defendant kicked a victim who was lying on the ground. See State v. Davis, 540 N.W.2d
88, 91 (Minn. App. 1995) (determining that defendant exhibited particular cruelty against
a particularly-vulnerable victim where defendant kicked a pregnant woman on the ground
while she was without an effective means of defense), review denied (Minn. Jan. 31, 1996).
Here, appellant admitted during the factual -basis portion of his plea hearing that he hit

assault conviction where defendant broke victim’s nose and fractured orbital bone). The
state attempts to distinguish these cases by arguing th at they are not sentencing-departure
cases. Because we agree that M.R.M.’s injuries do not make this case more serious than a
typical third-degree assault case, we do not find the state’s argument persuasive.

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M.R.M. while the victim was “prone” on the ground or near to the ground . Witnesses at
the scene told the responding police officers that appellant and two other individuals
“knocked out” the victim, and there was blood on the sidewalk where the attack occurred.
On this record, we determine that there is sufficient evidence to justify a departure
based on the particular vulnerability of the victim. We therefore conclude that the district
court did not abuse its discretion by imposing an upward departure at sentencing.

II. The district court did not violate appellant’s Blakely rights.
Appellant argues that the district court violated his right to a Blakely trial. “[A]ny
facts supporting a departure above the maximum guidelines sentence requires either a jury
to find those facts beyond a reasonable doubt or the defendant to admit to those facts.”
State v. Bradley, 906 N.W.2d 856, 858 (Minn. App. 2017), review denied (Feb. 28, 2018);
see also Blakely v. Washington , 542 U.S. 296, 30 3, 124 S. Ct. 2531, 253 7 (2004). A
Blakely hearing may be waived if the defendant provides “[a]n express, knowing,
voluntary, and intelligent waiver of the right to a jury determination of facts supporting an
upward sentencing departure . . . before a defendant’s statements at his guilty-plea hearing
may be used to enhance his sentence .” State v. Dettman , 719 N.W.2d 644, 646 (Minn.
2006). Under the Minnesota Rules of Criminal Procedure,
Where the prosecutor seeks an aggravated sentence, the
defendant, with the approval of the court, may waive a jury trial
on the facts in support of an aggravated sentence provided the
defendant does so personally, in writing or on the record in
open court, after being advised by the court of the right to a
trial by jury, and after having had an opportunity to consult
with counsel.

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Minn. R. Crim. P. 26.01, subd. 1(2)(b). Whether a Blakely error occurred is a legal question
subject to de novo review. Dettman, 719 N.W.2d at 648-49.
Appellant contends that a Blakely error occurred. We agree. While appellant
pleaded guilty to third-degree assault , he did not specifically waive his right to a jury
finding on aggravating factors. The state concedes that the district court erred.
Next, we consider whether the error is harmless beyond a reasonable doubt. A
Blakely error does not constitute a “structural error,” Washington v. Recuenco , 548 U.S.
212, 222, 126 S. Ct. 2546, 2553 (2006), and is “subject to a harmless error analysis,” State
v. Chauvin, 723 N.W.2d 20, 30 (Minn. 2006). “An error is not harmless if there is any
reasonable doubt the result would have been different if the error had not occurred.” State
v. DeRosier, 719 N.W.2d 900, 904 (Minn. 2006).
We determine that the error is harmless beyond a reasonable doubt because the
result of the proceedings would have been the same without the error. It is clear from the
record that appellant would hav e waived his Blakely rights to take advantage of the plea
deal offered by the state. Appellant chose to enter a plea of guilty in exchange for the state
amending the charge from first -degree aggravated robbery to third -degree assault. First-
degree aggrav ated robbery is a severity -level 8 offense and, given appellant’s criminal
history, carried a presumptive sentence of 78 months in prison. See Minn. Stat. § 609.245,
subd. 1 (providing that violations of the first -degree robbery statute may result in
imprisonment for up to 20 years); see also Minn. Sent. Guidelines 4.A (2016) (Sentencing
Guidelines Grid).

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In exchange for his guilty plea to an amended offense, the parties agreed that
appellant would instead serve only 36 months in prison. During the plea h earing, the
district court judge engaged in the following exchange with appellant:
COURT: And you understand that . . . the agreement that
you’ve made with the prosecutor calls for what we call an
upward departure to this assault in the third degree, right?
APPELLANT: Yes
COURT: Upward departure meaning you’re going to do more
time than normally on an assault in the third degree, but that’s
what you want to do, right?
APPELLANT: Yeah. Yes.
COURT: Okay. And then I want to make sure, though. I want
to make sure you understand every single thing.
APPELLANT: That’s the offer that was given to me, yes.
COURT: And that’s the offer you chose to accept, correct?
APPELLANT: Yes.
Given the facts of this case, we determine that if the district court asked appellant if
he waived his right to have a jury determination of facts supporting an upward sentencing
departure, appellant would have provided such a waiver.2 We therefore affirm.
Affirmed.

2 Appellant urges this court to remand to the district court for imposition of the presumptive
guidelines sentence for third -degree assault. The presumptive sentence for third -degree
assault with three criminal-history points is 21 months stayed. See Minn. Sent. Guidelines
4.A. Such a result would violate the terms of the negotiated plea agreement, and “it would
be inappropriate for [appellate courts] to make piecemeal corrections without regard to the
effect of the corrections on the plea bargain.” State v. Misquadace, 629 N.W.2d 487, 491
(Minn. App. 2001), aff’d, 644 N.W.2d 65 (Minn. 2002). Otherwise a defendant would be
allowed to retain the benefits of the plea agreement without experiencing the consequences
to which he agreed. See id. (agreeing with state’s argument that defendant sh ould not be
allowed to escape consequences while retaining benefits of plea bargain). If we reversed
the case —which we do not —appellant would face the original first-degree aggravated
robbery charge.