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This opinion is nonprecedential except as provided by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
A20-1337

State of Minnesota,
Respondent,

vs.

Joshua Alan Galle,
Appellant.

Filed May 17, 2021
Affirmed
Gaïtas, Judge

Hennepin County District Court
File No. 27-CR-17-19854

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

Michael O. Freeman, Hennepin County Attorn ey, Mark V. Griffin, Senior Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Gaïtas, Pr esiding Judge; Segal, Chief Judge; and
Kalitowski, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Joshua Galle challenges the dist rict court’s upward durational sentencing
departure for his third-degree assault convicti on. In a pro se supp lemental brief, Galle
raises three additional arguments regarding his sentence. We affirm.
FACTS
In July 2017, D.E. was drivin g to work after drinking so me cocktails with friends.
Galle pulled up next to D.E. at a stoplight. D.E. and Galle then had a verbal altercation—
a “what’s your problem” type of situation, as D.E. later tes tified. During this encounter,
Galle flung his car door open and angrily ran toward D.E., who exited his car and tried to
“deflect” Galle by “putting [his] foot to [Galle ’s] chest to change tr ajectory.” The next
moment D.E. could recall was wa king up to police tapping on the window of his car in a
parking lot.
There were two eyewitnesses to this alterc ation. According to the first witness,
Galle dragged D.E. from his ca r, slammed him to the ground, and then kicked him in the
head while continuing to punch him. This wi tness believed that Galle had “put [D.E.] to
sleep” because D.E. seemed to be unconscious on the ground for “a good minute.” The
second witness saw Galle get out of his vehicle and the ensuing loud argument. He could
“tell it was gonna get bad” and noted that things “went south really fast.” According to the
second eyewitness, Galle kicked D.E. in the head while he was on the ground, “like you’d
kick a soccer ball,” and then D.E. went “limp.” The second witness approached Galle and
said, “I think you just killed him.” Then, Galle’s demeanor instantly changed. Galle tried
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to usher D.E. to a nearby curb, insisting that D.E. was okay, before he quickly drove away
from the scene. Minutes later, D.E. stood up, got into his car, and drove off as well.
The two eyewitnesses reported the altercati on to the police. An officer soon located
D.E. in a nearby parking lot. D.E. was inju red with a lump on his head and a bloody lip,
and he was transported to the hospital for treatment. Police investigated the altercation and
eventually located Galle and arrested him.
Following these events, Galle was charged with first- and third-degree assault.
Minn. Stat. §§ 609.221, subd. 1, .223, subd. 1 (2016). Respondent State of Minnesota
notified Galle that it would seek an aggravat ed sentencing departure. Galle pleaded not
guilty and a jury trial occurred in August 2018.
The state called nine witnesses during Ga lle’s trial, including D.E. and the two
eyewitnesses to the assault. Much of the testimony focused on the extent of D.E.’s injuries,
which included a concussion, fractured tibia, and sprained anterior cruciate ligament
(ACL). D.E. suffered various symptoms follo wing his concussion: difficulty staying
awake for longer th an 15 to 20 minutes at a time, terrible headaches, noise sensitivity,
eyestrain, and memory fatigue. D.E. explained how the headaches worsened and, at times,
became “debilitating” 10- to 20-second episodes that caused him to stop in his tracks. Due
to his injuries, D.E. was unable to work for about four months. His speech pathologist and
occupational therapist testifie d about how his symptoms were consistent with a “mild
traumatic brain injury” and post-concussion syndrome. D.E.’s doctor testified that D.E.’s
tibia fracture extended into his cartilage, his AC L sprain “was not significant,” and that,
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about four weeks after the assault, his x-rays appeared “normal” and his swelling continued
to improve over time.
The jury found Galle guilty of first-degree assault, third-degree assault, and a lesser-
included offense of fifth-degree assault, Mi nn. Stat. § 609.224, subd. 1 (2016). After
receiving the verdicts, Galle waived his right to have the jury determine the presence of the
state’s alleged aggravating factors, see Minn. R. Crim. P. 26.01, subd. 3; Blakely v.
Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537 (2004), and the parties submitted
the issue to the district court based on a sti pulated record. The district court determined
that there were two aggravating factors: (1) Galle was a “repeat offender” because he
injured a victim here and during a pr ior assault resulting in a conviction, see Minn. Stat.
§ 244.10, subd. 5a(a)(3) (2016); and (2) Galle was a “dangerous offender,” see Minn. Stat.
§ 609.1095, subd. 2 (2016). Notwithstanding the presence of these aggravating factors, the
district court sentenced Galle to the presumptive sentence of 146 months in prison for the
first-degree assault conviction.
Galle appealed to this court, mainly cha llenging the sufficiency of evidence on the
first-degree assault conviction. Because we concluded “that D.E.’s injuries [did] not
amount to great bodily harm,” an essential element of first- degree assault, we reversed
Galle’s conviction for first-degree assault. State v. Galle, A19-0126, 2020 WL 1845966
at *4-6 (Minn. App. Apr. 13, 2020). But we were “more than satisfied” that Galle caused
D.E. “substantial bodily harm,” a critical element of third-degree assault, and accordingly
affirmed his third-degree assault conviction and remanded for resentencing. Id. at *6.
5
On remand, the state asked the district court to impose the statutory maximum
sentence of 60 months, which would have been more than a double durational departure
from the presumptive sentence under the sentencing guidelines. See Minn. Stat. § 609.223,
subd. 1 (2016). Galle requested a presumptiv e sentence, arguing that the offense was a
typical third-degree assault. Re lying on the district court’s previous determinations that
Galle was a repeat offender and a dangerous offender, the district court resentenced Galle
to 54 months in prison—a double durational departure from the presumptive sentence.
Galle now appeals.
DECISION
I. The district court did not abuse its discretion in imposing an upward
durational departure from the sentencing guidelines based on Galle’s status as
a repeat offender.

Galle challenges the district court’s decision to depart from the sentencing
guidelines. He contends that the district court improperly relied on the dangerous-offender
and repeat-offender aggravating factors. An d he argues that the district court’s double
durational departure resulted in an excessive sentence.
Appellate review of a district court’s sentencing departure generally involves a
twofold inquiry. See State v. Rabold, 935 N.W.2d 902, 906 (Minn. App. 2019). First, we
review de novo whether the district court’ s reason for the sentencing departure is
permissible. Id. Second, we review the district cour t’s decision whether to depart for an
abuse of discretion. Id. Ultimately, a reviewing court has the responsibility of determining
whether a disputed sentence “i s inconsistent with statutor y requirements, unreasonable,
6
inappropriate, excessive, unjustifiably disparate, or not warranted by th e findings of fact
issued by the district court.” Minn. Stat. § 244.11, subd. 2(b) (2020).
“[A] sentencing court can exercise its di scretion to depart from the guidelines only
if aggravating or mitigating circumstances are present, and those circumstances provide a
substantial and compelling reason not to impose a guidelines sentence.” State v. Soto, 855
N.W.2d 303, 308 (Minn. 2014) (quotations and citations omitte d). “If the reasons given
for an upward departure are legally permissibl e and factually supported in the record, the
departure will be affirmed. But if the district court’s reasons for departure are improper or
inadequate, the departure will be reversed.” State v. Hicks, 864 N.W.2d 153, 156 (Minn.
2015) (quotation omitted). “The presence of a single aggrava ting factor is sufficient to
uphold an upward departure.” State v. Rushton, 820 N.W.2d 287, 289 (Minn. App. 2012);
see State v. Ayala-Leyva, 848 N.W.2d 546, 558 (Minn. App. 2014) (“[A] departure can be
affirmed even if based on a single aggravating factor.”).
Galle first argues, and the state concedes , that the district court erroneously
determined that Galle was a dangerous o ffender under Minnesota Statutes section
609.1095, subdivision 2, because Galle does not have two or more separate and sequential
convictions for violent crimes. We agree.
Under section 609.1095, subdivision 2, the district court may depart from the
presumptive sentence if, at the time of sentencing, the offender is at least 18 years old, has
two or more “prior convictions for violent crimes,” and is found to be “a danger to public
safety.” Minn. Stat. § 609.1095, subd. 2(1)-(2). A “prior conviction” is “a conviction that
occurred before the offender committed the next felony resulting in a conviction and before
7
the offense for which the offender is being sentenced.” Id., subd. 1(c) (2016). In other
words, convictions must be separate and se quential to one another to qualify: “i.e.,
offense/conviction, offense/convic tion, offense/conviction, etc.” State v. Huston , 616
N.W.2d 282, 283 (Minn. App. 2000).
The stipulated record on the aggravati ng factors establishes that Galle committed
two acts of third-degree assault in July 2001. He then committed a first-degree burglary in
October 2001. In April 2002, he pleaded guilty to the assault offenses and was convicted
of those offenses in June 2002. He was no t charged with the burglary offense until April
2003. Thus, the sequence here was offense/o ffense, conviction/conv iction rather than
offense/conviction, offense/conviction, and the district court therefore erred by departing
based on section 609.1095, subdivision 2.
Even when some reasons for a departure ar e improper or insufficient, we may affirm
a sentence “if we conclude that the district court would have depa rted based on other
aggravating factors suppor ted by its findings.” Dillon v. State , 781 N.W.2d 588, 595
(Minn. App. 2010), review denied (Minn. July 20, 2010); see also State v. Vance , 765
N.W.2d 390, 395-96 (Minn. 2009) (affirming sentencing departure notwithstanding district
court’s reliance on an improper aggravating factor because two remaining departure bases
independently supported the departure and it was “reasonable to conclude that the district
court would have imposed the sa me sentence”). Because the district court also based its
upward departure on the repeat-offender aggravating factor, we next examine whether this
second factor was a valid departure basis.
8
Minnesota Statutes section 244.10, subdiv ision 5a(a)(3) sets forth the repeat-
offender aggravating factor. That section allows an upward departure where “the current
conviction is for . . . an offe nse in which the victim was otherwise injured and there is a
prior felony conviction for . . . an offense in which the victim was otherwise injured.” See
Minn. Sent. Guidelines 2.D.3.b.(3) (2016).
Galle argues that the district court abus ed its discretion by relying on the repeat-
offender aggravating factor because “this was not an atypical third-degree assault” and the
court failed to make a finding that his offense was more serious than a typical offense. He
acknowledges that this aggravating factor applied, but he claims that “more than any degree
of injury must be required for a district court to exercise its discretion to depart upward.”
The state counters that the upward departure was justified based on the statutory authority
alone, “without consideration of whether the offense was atypical.”
The state is correct. “[T]he Legislatur e, through the repeat offender aggravating
factor, has expressly determined that recidivism for particular felonies [(those which injure
victims)] is a valid basis for an upward sentencing departure.” State v. Meyers, 869 N.W.2d
893, 900 (Minn. 2015). Accordingly, the supreme court held in Meyers that “the existence
of the repeat offender aggrava ting factor is sufficient, by itself, to justify up to a double
durational departure.” Id. at 901. This aggravating factor does not require the district court
to make an additional finding that the instan t offense was atypical or more serious than
usual. See id. at 900-01; Minn. Stat. § 244.10, subd. 5a(a)(3). All that must be shown is
that the instant offense and a prior felony conviction both involved victim injury. See id.
9
Here, as Galle acknowledges, the record supports the district court’s factual finding
that Galle’s current conviction and his prior convictions were for offenses where victims
were injured. The current conviction resulted from Galle’s assault of D.E., which caused
D.E. to suffer a concussion, a bone fractur e, an ACL sprain, and various prolonged
symptoms relating to those inju ries. And in 2002, Galle was convicted of two counts of
third-degree assault because he stabbed two victims who ultimately received medical care
for their injuries. Accordingly, because Ga lle’s current conviction and prior convictions
involved offenses where victims were injured, the district court correctly determined as a
matter of law that Galle is a repeat offende r as defined by sectio n 244.10, subdivision
5a(a)(3).
“Once we determine as a matter of law th at the district court has identified proper
grounds justifying a challenged departure, we review its decision whether to depart for an
abuse of discretion.” Dillon, 781 N.W.2d at 595 (emphasis added). Galle argues that the
district court abused its discretion becau se his 54-month sentence is “excessive,
disproportionate to the offense, unduly exaggerates [his] culp ability and seriously
undermines the goals of the sentencing guidelines.”
Once more, Galle’s argument is misguided. When a disputed sentence is not more
than double the presum ptive term, we generally defer en tirely to the district court’s
discretion. Id. at 596. This deference applies when the repeat-offender aggravating factor
is the basis of a given departure. See, e.g., Meyers, 869 N.W.2d at 902 (upholding 240-
month sentence where 135 months was presumed); State v. Lomax, 437 N.W.2d 409, 410
(Minn. 1989) (upholding 1 40 month-sentence where 70 months was presumed); State v.
10
O’Brien, 369 N.W.2d 525, 527 (Minn. 1985) (upholding 130-month sentence where 65
months was presumed). Here, given the nature of Galle’s conduct during the assault, the
particular injuries he inflicted on the victim , and his prior assaults, we see no abuse of
discretion in the district court’s decision to impose a double durational departure from the
presumptive sentence of 27 months.
Finally, notwithstanding the district c ourt’s reliance on the improper dangerous-
offender ground for departure, it is reasonable to conclude that the district court would have
imposed the same sentence based solely on the repeat-offender aggravating factor. See
Vance, 765 N.W.2d at 395-96. At the senten cing hearing on remand, the district court
observed that the repeat-offender aggravating factor is “actually . . . more applicable.” The
district court also stated that the departur e was “primarily” based on the “244.01 [sic]
subdivisions as origina lly stated.” Given these statements , we conclude that the district
court would have imposed the same senten cing departure based on the repeat-offender
aggravating factor alone. We accordingly affirm Galle’s sentence.
II. Galle’s pro se arguments do not entitle him to relief.
We next consider Galle’s arguments raised in his pro se supplemental brief. Galle
raises three additional challenges to his sentence.
First, Galle argues that the judge who sentenced him on remand from this court’s
decision reversing his first-degree assault conviction—a different judge than the judge who
presided over his trial and original sentencing hearing—was biased. He contends that the
resentencing judge demonstrated bias ag ainst him by relying on the trial judge’s
11
determinations and ignoring certain mitigating factors, resulting in a sentence that was
arbitrary, unethical, and “fits the definition of caprice.”
All district court judges must “perform the duties of judicial office . . . without bias
or prejudice.” Minn. Code. Jud. Conduct 2.3(A). But, “[t]he mere fact that a party declares
a judge partial does not in itself generate a reasonable question as to the judge’s
impartiality.” State v. Burrell, 743 N.W.2d 596, 601-02 (Min n. 2008). Adverse rulings,
without more, are not a demonstration of judicial bias. State v. Sailee, 792 N.W.2d 90, 96
(Minn. App. 2010), review denied (Minn. Mar. 15, 2011).
Galle appears to argue that the resenten cing judge’s reliance on the trial judge’s
findings regarding the presence of aggravating factors constitutes judicial bias. This claim
is without merit because the record reveals no indication of judicial bias. The resentencing
judge’s reliance on the trial judge’s findings does not, in itself, establish bias. Moreover,
our review of the record conv inces us that the resentencing judge considered a variety of
factors, including some mitigating factors, before arriving at Galle’s 54-month sentence.
Second, Galle asserts that the state only re quested an aggravated departure after he
successfully appealed the first-degree assa ult conviction and therefore the departure
constitutes a “trial penalty.” 1 Galle’s argument is unsuppor ted by the record. The state

1 Galle also suggests that the resentencing judge erred by declining to compare the facts of
this case to other third-degree assaults. Appe llate courts may look to sentences given to
other offenders for the same conviction when considering whether a particular sentence
“exaggerates the defendant’s criminality.” State v. Willis , 559 N.W.2d 693, 701 (Minn.
1997). But, as discussed, the 54-month sent ence imposed by the di strict court neither
exaggerated Galle’s criminality nor was it an abuse of discretion. Thus, we do not engage
in the comparative analysis requested by Galle.
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noticed its intent and moved for an upward departure well before Galle’s first appeal based
on the same two aggravating factors later app lied on remand. That the state renewed its
request for an upward departure when Galle was resentenced for third-degree assault in no
way constitutes a “trial penalty.”
Finally, Galle appears to argue that upward sentencing departures are
unconstitutional when a departure is left to the district cour t’s discretion. The Minnesota
Legislature has “[t]he power to define the conduct which constitutes a criminal offense and
to fix the punishment for such conduct.” Meyers, 869 N.W.2d at 896 (quotation omitted).
Section 244.10, subdivision 5a(a)(3)—which se rved as the basis for departure in this
case—reflects the legislature’s decision that “recidivism can justify increased
punishment.” Id. And it has long been held that a decision to depart from the guidelines
rests within the sound discretion of the district courts. Wells v. State, 839 N.W.2d 775, 778
(Minn. App. 2013), review denied (Minn. Feb. 18, 2014). For the reasons already
discussed, we conclude that the district court appropriately exercised its discretion, treated
Galle as a defendant who qualif ies under the repeat-offender aggravating factor (unlike
certain other defendants), and, thus, justif iably sentenced him to more time than was
presumed under the sentencing guidelines. La stly, Galle’s insistence that departures are
unconstitutional because they are discretiona ry lacks any supporti ng authority and is
therefore without merit.
Affirmed.