State of Minnesota v. Dylan Thomas Peterson

This opinion is nonprecedential except as provided by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
A23-0732

State of Minnesota,
Respondent,

vs.

Dylan Thomas Peterson,
Appellant.

Filed May 6, 2024
Affirmed
Larson, Judge

St. Louis County District Court
File Nos. 69VI-CR-21-585; 69HI-CR-22-78

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

Kimberly J. Maki, St. Louis County Attorney, Tyler J. Kenefick, Assistant County
Attorney, Hibbing, Minnesota (for respondent)

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

Considered and decided by Larson, Presiding Judge; Reyes, Judge; and Ede, Judge.

NONPRECEDENTIAL OPINION

LARSON, Judge

Appellant Dylan Thomas Peterson appeals his sentences for two second-degree-

assault convictions under Minn. Stat. § 609.222, subd. 2 (2020). Peterson argues the

district court abused its discretion when it imposed (1) upward durational departures for
both sentences and (2) excessive and unreasonable sentences. Peterson raises additional

arguments in his pro se supplemental brief. We affirm.

FACTS

In December 2022, Peterson pleaded guilty to two counts of second-degree assault

under Minn. Stat. § 609.222, subd. 2. The first assault occurred in Eveleth, Minnesota, in

June 2021 (the Eveleth assault). The second assault occurred in Hibbing, Minnesota, in

January 2022 (the Hibbing assault). During his plea hearing, Peterson confirmed that for

both assaults, he signed plea and aggravated-sentence petitions. In those documents,

Peterson acknowledged he was pleading guilty, understood the state would seek an

aggravated sentence, and expressly waived his “right to a trial on the facts in support of an

aggravated sentence.”

At the plea hearing, Peterson first pleaded guilty to the Eveleth assault. In response

to questions from his counsel and the state, Peterson agreed to the following facts: on June

4, 2021, he was at a pizza restaurant in Eveleth; he encountered the victim and stabbed him

in the leg with a knife; the knife punctured the victim’s skin and broke a bone; and the

victim’s wounds constituted “substantial bodily harm.”

The state further proffered a factual basis to support a sentence enhancement for the

Eveleth assault on the ground that Peterson met the dangerous-offender standard under

Minn. Stat. § 609.1095, subd. 2 (2020). In response to questions from the state, Peterson

agreed that he: was “18 years old or older” at the time of the offense; had six prior

convictions, including a 2015 conviction for aiding and abetting first-degree aggravated

robbery, a 2015 conviction for second-degree assault, a 2015 conviction for first-degree

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aggravated robbery, a 2013 conviction for fifth-degree assault, a 2012 conviction for

second-degree witness tampering, and a 2012 conviction for fifth-degree assault; and was

incarcerated from July 2015 to January 2019. The district court found “a sufficient factual

basis” for the plea after Peterson attested to the facts for the Eveleth assault and the sentence

enhancement.

Peterson next pleaded guilty to the Hibbing assault. In response to questions from

his counsel and the state, Peterson agreed that: he stabbed the victim in the leg with a knife;

he did not act in self-defense or in defense of others; the victim was hospitalized because

of the wound; and the victim was “placed in a wheelchair and had . . . substantial cuts to

his arms.”

The state then established a factual basis to support a sentence enhancement based

on the Hibbing assault occurring in the victim’s zone of privacy. See Minn. Sent’g

Guidelines 2.D.3.b(14) (Supp. 2021). In response to questions from the state, Peterson

agreed that: earlier in the day, he had permission to enter the victim’s home “to remove

some property”; the stabbing occurred after he finished removing the property; and, at the

time of the stabbing, he “did not have permission to come back in[to] [the victim’s] house

and stab him.” The district court again found “a sufficient factual basis” for the plea after

Peterson attested to the facts for the Hibbing assault and the sentence enhancement.

Prior to the sentencing hearing, the district court received a presentence

investigation report (PSI). For the Eveleth assault, the PSI recommended a presumptive

69-month prison term. For the Hibbing assault, the PSI recommended a presumptive 75-

month prison term.

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 In February 2023, the district court held a sentencing hearing. At the hearing,

Peterson requested the presumptive sentences for both convictions. The state requested

aggravated sentences of 120 months in prison for both convictions. The district court

granted the state’s request and sentenced Peterson to two concurrent 120-month prison

terms. For the Eveleth assault, the district court found that Peterson had “two or more prior

convictions for violent crimes,” and therefore, was “a danger to public safety based on his

past criminal behavior.” See Minn. Stat. § 609.1095, subd. 2. For the Hibbing assault, the

district court found that Peterson had “stabbed the victim in a zone of privacy.” See Minn.

Sent’g Guidelines 2.D.3.b(14). On these bases, the district court determined that the state

presented sufficient evidence for the upward durational departures.

This appeal follows.

DECISION

Peterson challenges the district court’s decision to sentence him to two concurrent

120-month prison terms. We review a district court’s decision to depart from the

Minnesota Sentencing Guidelines for an abuse of discretion. State v. Edwards, 774

N.W.2d 596, 601 (Minn. 2009). We will affirm the district court’s departure if it was

“legally permissible and factually supported in the record.” Id.

Peterson makes the following arguments. Regarding the Eveleth assault, Peterson

argues the district court abused its discretion when it determined that he met the dangerous-

offender standard in Minn. Stat. § 609.1095, subd. 2. With respect to the Hibbing assault,

Peterson asserts the district court abused its discretion when it determined Peterson

committed the offense in the victim’s zone of privacy. See Minn. Sent’g Guidelines

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2.D.3.b(14). For both convictions, Peterson argues the sentences for 120-month prison

terms were excessive and unreasonable. And in his pro se supplemental brief, Peterson

raises two constitutional challenges to his sentences. We address Peterson’s arguments in

turn below.

I.

For the Eveleth assault, Peterson argues the district court abused its discretion when

it imposed an upward durational departure on the basis that he meets the statutory criteria

to be sentenced as a dangerous offender under Minn. Stat. § 609.1095, subd. 2. The statute

provides:

Whenever a person is convicted of a violent crime that is a
felony, . . . the judge may impose an aggravated durational
departure from the presumptive imprisonment sentence up to
the statutory maximum sentence if the offender was at least
18 years old at the time the felony was committed, and:

(1) the court determines on the record at the time of
sentencing that the offender has two or more prior
convictions for violent crimes; and

(2) the fact finder determines that the offender is a danger
to public safety.

Minn. Stat. § 609.1095, subd. 2.

Peterson first contends that the district court abused its discretion because it needed

to find substantial and compelling circumstances to depart from the presumptive sentence.

We disagree.

Generally, to depart from the presumptive guidelines range, the offense must

involve “substantial and compelling circumstances.” State v. Jones, 745 N.W.2d 845, 848

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(Minn. 2008). But the supreme court has held that departures under Minn. Stat.

§ 609.1095, subd. 2 “are justified on the basis of the offender’s criminal history, not on

aggravating factors,” and the statute allows durational departures that the sentencing

guidelines would not otherwise permit. Neal v. State, 658 N.W.2d 536, 545 (Minn. 2003).

“In addition, the terms of the statute do not limit the length of departures.” Id. Thus, the

district court need not find substantial and compelling reasons to justify a departure when

the statute’s requirements have been met. Id. at 546. Because the statute allows the district

court to depart from the presumptive guidelines range based only on the statutory criteria,

the district court did not abuse its discretion when it failed to find substantial and

compelling circumstances to impose the upward durational departure. See id.; Minn. Stat.

§ 609.1095, subd. 2.

Second, Peterson argues the district court failed to make adequate findings to

support its decision that he is “a danger to public safety.” See Minn. Stat. § 609.1095,

subd. 2(2). To determine whether “the offender is a danger to public safety,” the district

court may consider, among other factors, “the offender’s past criminal behavior, such as

the offender’s high frequency rate of criminal activity” or “long involvement in criminal

activity.” Id.

Peterson contends the district court needed to analyze expressly the “public safety”

factors set forth in the statute, specifically the factors related to the frequency and duration

of his past criminal conduct. But in State v. Thomas, we concluded that to comply with the

statute the district court need only “determine[] on the record at the time of sentencing that

the offender has two or more prior convictions for violent crime.” 890 N.W.2d 413, 421-

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22 (Minn. App. 2017) (alteration in original) (quoting Minn. Stat. § 609.1095, subd. 2(1)),

rev. denied (Minn. Mar. 28, 2017).

Here, the district court’s decision to depart complied with Thomas. During the

sentencing hearing, the district court determined that Peterson had “two or more prior

convictions for violent crimes,” and he “is a danger to public safety based on his past

criminal behavior.” Moreover, the record supports the district court’s decision. At the plea

hearing, Peterson admitted to multiple prior convictions for violent crimes. Those

convictions occurred in 2012, 2013, and 2015, before he went to prison from July 2015

until January 2019. And the record illustrates that, upon his release from prison, he

resumed his criminal conduct in 2021 and 2022. Although more specific public-safety

findings would have been preferable, the district court did not abuse its discretion when it

imposed an upward durational departure on the basis that Peterson meets the statutory

criteria for sentencing as a dangerous offender under Minn. Stat. § 609.1095, subd. 2.

II.

For the Hibbing assault, Peterson argues that the district court abused its discretion

when it imposed an upward durational departure on the basis that he committed the crime

in the victim’s zone of privacy.

The guidelines prescribe sentencing ranges that are presumed appropriate. Minn.

Sent’g Guidelines 1.A.6, 2.D.1 (Supp. 2021). But the guidelines allow for departures from

the presumptive guidelines range in certain circumstances. See id. The guidelines include

a nonexclusive list of aggravating factors meant to describe cases in which the crime is

more serious than the typically charged offense. Minn. Sent’g Guidelines 2.D.3.b,

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cmt. 2.D.301 (Supp. 2021); State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984). “[A] single

aggravating factor is sufficient to uphold an upward departure.” State v. Weaver, 796

N.W.2d 561, 571 (Minn. App. 2011) (quotation omitted), rev. denied (Minn. July 19,

2011).

The guidelines list as an aggravating factor an offense committed “in a location in

which the victim had an expectation of privacy.” Minn. Sent’g Guidelines 2.D.3.b(14);

Minn. Stat. § 244.10, subd. 5a(a)(14) (2020). The zone-of-privacy factor encompasses a

victim’s home and includes a defendant causing “a continuing fear of harm in the home”

or “a deliberate invasion” of the home. State v. Parker, 901 N.W.2d 917, 928-29 (Minn.

2017).

Peterson argues the district court abused its discretion when it applied the zone-of-

privacy factor because the state failed to establish that the victim did not invite Peterson

into the home at the time the stabbing occurred. To support this argument, Peterson points

to the following testimony at the plea hearing:

STATE: Okay. So, would it be fair to say you did not have
permission to come back in[to] [the victim’s] house and stab
[the victim] at that point?

PETERSON: Yes.

According to Peterson, he only admitted that he did not have permission to enter and stab

the victim, not that he did not have permission to enter the home. We are not persuaded.

Reviewing Peterson’s statement in context, we conclude that he admitted the victim

did not give him permission to enter the home at the time of the stabbing. Prior to making

the above statement, Peterson explained that earlier in the day the victim allowed Peterson

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to enter the home “to remove some property.” Peterson agreed that he left “and then c[a]me

back,” and that the stabbing occurred after he was “done moving things.” The state

followed up, asking whether it would be fair to say that he “did not have permission to

come back in [the] house and stab [the victim] at that point,” and Peterson replied, “Yes.”

In this context, we conclude that Peterson admitted he did not have permission to enter the

home when he stabbed the victim.

Peterson also argues the district court abused its discretion when it applied the zone-

of-privacy factor because the state failed to demonstrate the offense involved substantial

and compelling circumstances justifying the departure. As set forth above, to depart from

the presumptive guidelines range, the offense generally must involve “substantial and

compelling circumstances.” Jones, 745 N.W.2d at 848. “Substantial and compelling

circumstances are those demonstrating that the defendant’s conduct . . . was significantly

more or less serious than that typically involved in the commission of the crime in

question.” Id. (quotation omitted). Here, Peterson argues the state failed to show that his

conduct was “significantly more serious” than a typical second-degree assault. We are not

persuaded.

It is well-established that “[c]ommitting a crime within an area where the victim has

an expectation of privacy” alone can make an offense “significantly more serious than a

typical crime.” Parker, 901 N.W.2d at 928 (quotation omitted). And second-degree

assaults often occur outside the victim’s home, illustrating that this crime is not “typical.”

See, e.g., State v. Fox, 396 N.W.2d 862, 863 (Minn. App. 1986) (second-degree assault in

a truck along a highway), rev. denied (Minn. Jan. 16, 1987); State v. Oates, 611 N.W.2d

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580, 582-83 (Minn. App. 2000) (second-degree assault in a nightclub), rev. denied (Minn.

Aug. 22, 2000); State v. Essex, 838 N.W.2d 805, 807-08 (Minn. App. 2013) (attempted

second-degree assault at a bar), rev. denied (Minn. Jan. 21, 2014). Thus, we conclude the

district court did not abuse its discretion because substantial and compelling circumstances

justified the departure.

For these reasons, we conclude the district court did not abuse its discretion when it

imposed an upward durational departure on the basis that Peterson committed the Hibbing

assault in the victim’s zone of privacy.

III.

Peterson argues that the district court’s concurrent 120-month prison terms for both

assaults are “unreasonable and excessive because [they] unduly exaggerate[] the

criminality of his conduct.” On appeal, we “may review the sentence imposed . . . to

determine whether the sentence is inconsistent with statutory requirements, unreasonable,

inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact

issued by the district court.” Minn. Stat. § 244.11, subd. 2(b) (2020). To evaluate whether

a sentence exaggerates a defendant’s criminality we “may consider . . . comparable

sentences in departure cases to determine if a sentence is unjustifiably disparate.” Vickla

v. State, 793 N.W.2d 265, 270 (Minn. 2011). “[G]enerally in a case in which an upward

departure in sentence length is justified, the upper limit will be double the presumptive

sentence length.” State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981) (emphasis omitted).

But district courts should not “automatically double the presumptive length in all cases”

and “we will not automatically approve all departures of this magnitude.” Id.

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 We conclude the district court did not impose unreasonable or excessive sentences

in this case. For the Eveleth assault, Peterson faced a presumptive 69-month prison term

and, as set forth above, the district court appropriately determined that Peterson met the

dangerous-offender statutory criteria under Minn. Stat. § 609.1095, subd. 2. And for the

Hibbing assault, Peterson faced a presumptive 75-month prison term and, as set forth

above, the district court appropriately found Peterson committed the offense in the victim’s

zone of privacy. See Minn. Sent’g Guidelines 2.D.3.b(14). In departing upward, the

district court imposed a sentence less than double the presumptive sentence. See Evans,

311 N.W.2d at 483. And Peterson’s sentences are consistent with sentences received by

other offenders who committed second-degree assault with similar aggravating

circumstances. See, e.g., State v. Castillo, No. A14-1647, 2015 WL 4877699, at *3 (Minn.

App. Aug. 17, 2015) (affirming second-degree assault sentence with dangerous-offender

enhancement that was “slightly more than twice the middle of the sentencing range and

slightly less than twice the high end of the range”), rev. denied (Minn. Nov. 17, 2015);

Hinton v. State, No. A05-1716, 2006 WL 2053131, at *1-2 (Minn. App. July 25, 2006)

(approving upward durational departure for second-degree assault where defendant

invaded victim’s zone of privacy). 1

Therefore, the district court did not impose unreasonable or excessive sentences.

1
Nonprecedential opinions are not binding authority but may be cited as persuasive
authority. See Minn. R. Civ. App. P. 136.01, subd. 1(c).

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 IV.

Peterson also filed a pro se supplemental brief. He raises two arguments in addition

to the issues addressed above. We address those arguments in turn.

Peterson first argues the district court violated the double-jeopardy clause in the

U.S. and Minnesota Constitutions when it determined he met the dangerous-offender

statutory criteria under Minn. Stat § 609.1095, subd. 2. See U.S. Const. amend. V; Minn.

Const. art. I, § 7. However, Peterson does not point to legal authority that equates an

upward sentencing departure with punishing a defendant twice for the same offense.

Because Peterson failed to cite any legal authority to support his argument, he inadequately

briefed the issue and forfeited it on appeal. See In re Civil Commitment of Kropp, 895

N.W.2d 647, 653 (Minn. App. 2017), rev. denied (Minn. June 20, 2017); see also State v.

Beaulieu, 859 N.W.2d 275, 278 n.3 (Minn. 2015) (defining “forfeiture” as “a failure to

make a timely assertion of a right”).

Second, Peterson argues the upward durational departures violated the Sixth

Amendment of the U.S. Constitution under Blakely v. Washington, 542 U.S. 296 (2004)

because the aggravating factors were “based on judicially determined facts that were

neither determined by a jury [n]or admitted by defendant during his plea hearing.” We

disagree. Under Blakely, “[w]hen a defendant pleads guilty, the State is free to seek judicial

sentence enhancements so long as the defendant either stipulates to the relevant facts or

consents to judicial factfinding.” Id. at 310. The record shows Peterson signed two plea

petitions in which he expressly waived his “right to a trial on the facts in support of an

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aggravated sentence.” And at his plea hearing, Peterson stipulated to the facts supporting

the aggravated sentences.

For all the reasons set forth above, we affirm Peterson’s sentences.

Affirmed.

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