State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0753

State of Minnesota,
Respondent,

vs.

Shane Kirby Williams,
Appellant.

Filed April 26, 2021
Affirmed in part, reversed in part, and remanded
Kalitowski, Judge*

Pennington County District Court
File No. 57-CR-18-552

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

Seamus Duffy, Penni ngton County Attorney, Kristin J. Hanson, Assistant County
Attorney, Thief River Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Worke, Judge; and Kalitowski,
Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
KALITOWSKI, Judge
Appellant Shane Williams challenges hi s sentence, arguing the district court
(1) abused its discretion by relying on improper factors in imposing an upward departure;
(2) erred by misapplying the sentencing guide lines; and (3) erred in ordering a domestic
abuse no-contact order. We affirm in part, reverse in part, and remand.
FACTS
In July 2018, the state charged Williams with attempted se cond-degree murder,
second-degree assault, domestic assault by st rangulation, and endangerment of a child.
Minn. Stat. §§ 609.19, subd. 1(1); .222, subd. 2; .2247, subd. 2; .378, subd. 1(b)(1) (2016).
Williams had assaulted his room mate by choking her and sta bbing her three times while
her minor niece and nephew were present. The record indicates that the nephew physically
tried to stop the assault.
Williams negotiated a plea agreement with the state that stipulated that he would
enter a Norgaard plea to the second-deg ree assault charge in exchange for the state
dropping his remaining charges. The parties al so agreed that the children’s presence was
an aggravating factor for which the state could seek an aggravated sentence of between 36
and 84 months. With Williams’s criminal-history score, the presumptive sentence for the
second-degree assault charge was 33 months. Minn. Sent. Guidelines 4.A (2016).
The district court sentenced Williams to 78 months’ imprisonment. In reaching its
decision, the district court stated that th e children’s presence wa s “an identifiable and
compelling circumstance” supporting an aggrav ated durational departure. The district

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court also determined that the departure wa s appropriate because the roommate “suffered
terribly” and “had a long rehab to go,” and because “the children also suffered to the same
extent.” In addition, the district cour t imposed a domestic abuse no-contact order
(DANCO) for the roommate a nd the children against Williams as a condition of his
sentence.
DECISION
I. The district court did not abuse its discretion by sentencing Williams to 78
months’ imprisonment.
Williams challenges his 78-month sentence ar guing that the district court abused its
discretion by (1) relying on improper factors to support an upward departure; and (2) erring
in applying the Minnesota Sentencing Guidelines. We review a district court’s imposition
of a sentence for an abuse of discretion. State v. Soto , 855 N.W.2d 303, 307-08 (Minn.
2014). An abuse of discretion occurs when a district court base s its decision on an
erroneous view of the law or fa cts unsupported by the record. State v. Hallmark , 927
N.W.2d 281, 291 (Minn. 2019). Because the district court has “great discretion” to impose
sentences, we will not reverse absent a clear abuse of that discretion. Soto, 855 N.W.2d at
307-08.
A. The district court may consider factors inherent in the crime when
sentencing defendants.
Williams argues that the district court erroneously based its decision on the suffering
endured by the roommate and the children when the district court stated: “[O]ur victim
suffered terribly. As she indicated, she had a long rehab to go, but I believe just as
important, the children also suffered to the sa me extent, and so in my mind that justifies

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doubling the amount.” Williams claims that be cause he did not adm it to the roommate’s
suffering and need for rehabilitation or to the children’s suffering as aggravating factors, it
was improper for the court to consider these factors in sentencing Williams. We disagree.
When a district court seeks to depart from a presumptive sent ence established by
the sentencing guidelines, it must identify “a substantial and compelling justification” for
that departure. State v. Misquadace, 644 N.W.2d 65, 69 (Minn. 2002). When the defendant
accepts a plea deal and waives his right to a ju ry trial, he must ad mit the substantial and
compelling fact supporting an upward departure, and his admission must “be accompanied
by a knowing waiver of his right to a jury finding on that fact before the admission may be
used to enhance his sentence.” State v. Dettman, 719 N.W.2d 644, 652 (Minn. 2006).
Williams waived his right to a jury determ ination on the aggrav ating factor of the
presence of the children during the assault. And at sentencing, the district court relied on
that admission in determining that the children’s presence supported an upward durational
departure. Only after the district cour t had already acknowledged the basis for its
departure—the children’s presence—did it refer to the children’s and roommate’s suffering
and the roommate’s need for rehabilitation.
But the harms considered by the district court are inherent in the offense and the
fact that the children were present. The roommate suffered “substantial bodily harm” as a
result of the second-degree a ssault. Minn. Stat. § 609.22 2, subd. 2. Likewise, the
children’s presence is an aggrav ating factor because it was ha rmful to the children to be
present during the assault. Because the ha rm to the roommate and the children are
inseparable elements of the offense and the ad mitted aggravating factor, the district court

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did not err in referencing those factors in se ntencing Williams. Furthermore, even if the
district court improperly referenced th e roommate’s suffering when discussing the
departure, we conclude that absent that co mment, the district court would have imposed
the same sentence. The fact s involving the presence of the children here provided a
substantial and compelling basis for the di strict court’s impositio n of a double upward
durational departure.
B. The district court’s double upward durational departure was consistent
with the Minnesota Sentencing Guidelines.
The Minnesota Sentencing Guidelines gr id provides presumptive sentence lengths
for criminal offenses. Minn. Sent. Guidelines 4.A. The presumptive sentence is found in
the cell where the convicted offense and the crim inal-history score intersect. Minn. Sent.
Guidelines 2.C.1 (2016). Some cells include only one fixed presumptive sentence length,
while others include a fixed presumptive sentence and a sentence range in italics. Id.
The presumptive sentence fo r second-degree assault with a criminal-history score
of two is 33 months. Minn. Sent. Guidelines 4.A. The sentencing grid does not provide a
presumptive sentence range for this offense and criminal-history score. Id. But, the district
court determined that the presumptive sentencing range in this case was 29 to 39 months.
The district court then concluded that a double upward durational departure—generally the
maximum upward durational departure that aggravating factors can justify—was
appropriate and sentenced Williams to 78 months. State v. Shattuck, 704 N.W.2d 131, 140
(Minn. 2005).

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Williams challenges the district court’s ca lculation, arguing that because the grid
only includes a fixed presumptive sentence—not a sentencing range—for his offense and
criminal-history score, the district court e rred in sentencing him to 78 months. We
disagree.
When the grid provides only a single, pr esumptive, fixed sentence, “the standard
range—15 percent lower and 20 percent high er than the fixed duration displayed—is
permissible without departure, provided that the minimum sentence is not less than one
year and one day, and the maximum sentence is not more than the statutory maximum.”
Minn. Sent. Guidelines 2.C.1. The absence of a presump tive sentencing range in italics
does not mean, as Williams argues, that there is no permissible sentencing range.
Here, the district court properly conclude d that the presumptive range is 29 months
to 39 months. Thus, the district court correctly applied the Minnesota Sentencing
Guidelines and did not abuse its discretion by sentencing Williams using 39 months as the
top of the range.
II. The district court did not have the au thority to issue a DANCO as a condition
of Williams’s sentence.
Williams also argues that the district cour t erred in issuing a DANCO in addition to
the 78-month sentence because it lacked the authority to do so. We review a challenge to
the district court’s application of the law de novo. State v. Anderson, 941 N.W.2d 724, 727
(Minn. 2020).
The district court’s authority to impose th e terms or conditions of a sentence is not
inherent and must be established by statute. State v. Pugh, 753 N.W.2d 308, 311 (Minn.

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App. 2008), review denied (Minn. Sept. 23, 2008). Thus, district courts may not impose a
DANCO unless explicitly authorized by statute to do so. Id.
Second-degree assault may be punished by either imprisonment for not more than
ten years, payment of not more than $20,000, or both. Minn. Stat. § 609.222, subd. 2. A
DANCO is not a punishment authorized by the statute. Nor is a DANCO recognized as an
available punishment for a felony. Minn. Stat. § 609.10 (2016). Rather, a court may only
impose a DANCO against a defendant in a crimin al proceeding as part of a pretrial order
or postconviction probationary order—neither of which apply here. Minn. Stat. § 629.75,
subd. 1(b) (2016); State v. Ness, 834 N.W.2d 177, 182 (Minn. 2013).
We conclude that the district court lack ed the authority to impose a DANCO against
Williams as part of his sentence. Because the district court erroneously imposed the
DANCO against Williams, we reve rse and remand to the distri ct court for resentencing
consistent with this decision.
Affirmed in part, reversed in part, and remanded.