This opinion will be unpublished and 

may not be cited except as provided by 

Minn. Stat. § 480A.08, subd. 3 (2014). 

STATE OF MINNESOTA 

IN COURT OF APPEALS 

A15-2028 

State of Minnesota, 

Respondent, 

vs. 

Lawrence Lee Hicks, 

Appellant. 

Filed December 5, 2016 

Affirmed 

Reyes, Judge 

Hennepin County District Court 

File No. 27CR15594 

Lori Swanson, Attorney General, St. Paul, Minnesota; and 

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County 

Attorney, Minneapolis, Minnesota (for respondent) 

Cathryn Middlebrook, Chief Appellate Public Defender, Sean M. McGuire, Assistant 

Public Defender, St. Paul, Minnesota (for appellant) 

 Considered and decided by Jesson, Presiding Judge; Stauber, Judge; and Reyes, 

Judge. 

U N P U B L I S H E D O P I N I O N 

REYES, Judge 

 Appellant argues that the district court abused its discretion when it imposed an 

upward durational sentencing departure based on Minn. Stat. § 244.10, subd. 5a(a)(3), 
2 

(2014), particular cruelty, and particular vulnerability. Because we conclude that the 

district court did not abuse its discretion in relying on the statute, we affirm. 

FACTS 

On November 4, 2014, appellant Lawrence Hicks and Y.D. were involved in an 

argument. During the dispute, Y.D. pulled out a knife. Appellant struck Y.D., and she 

fell to the ground. Appellant then obtained the knife and stabbed Y.D. in the back two 

times while she was on the ground and very close to the inside corner of a building where 

the entryway door meets a wall. The stabbing left Y.D. permanently paralyzed from the 

waist down. During the incident, appellant attempted to cut Y.D.’s hair, which is a 

sacred act in Y.D.’s Native-American culture. After the stabbing, appellant offered no 

assistance to Y.D. and fled the scene. 

 The state charged appellant with first-degree assault—great bodily harm, under 

Minn. Stat. § 609.211, subd. 1, (2014). In an amended notice of intent to seek an upward 

durational sentencing departure, the state requested that the district court impose a 

statutory maximum sentence of 240 months upon conviction, asserting four aggravating 

factors: (1) the current offense caused injury to the victim and appellant has a prior felony 

conviction in which the victim was otherwise injured, under Minn. Stat. § 244.10, subd. 

5a(a)(3); (2) particular cruelty; (3) particular vulnerability of the victim; and (4) appellant 

attempted to avoid apprehension and divert the police investigation. The district court 
3 

issued a Blakely order and memorandum,1

 authorizing the state to present facts 

referencing the first three aggravating factors included in its amended notice of intent as 

well as facts referencing appellant’s flight from the scene. 

At an omnibus pretrial hearing, appellant pleaded guilty to the first-degree assault 

charge and waived his right to have a jury find the aggravating factors. However, the 

district court later allowed appellant to withdraw his guilty plea and Blakely waiver, 

which he did, due to the release of the presentence investigation report (PSI). The PSI 

recommended a minimum of a top-of-the-box sentence of 192 months but noted that the 

record supports the state’s request for a 240-month sentence. 

After jury selection, appellant again pleaded guilty and waived his right to have 

the jury determine the existence of the aggravating factors. Appellant admitted to facts 

supporting certain aggravating factors. First, appellant admitted that he has a prior felony 

conviction in which Y.D. was injured. He also admitted that it is a particularly cruel act 

to attempt to cut Y.D.’s hair. Next, appellant admitted to stabbing Y.D. twice in the back 

while she was on the ground in a corner between the wall and door of a building. Finally, 

he admitted to fleeing the scene without offering aid to Y.D. 

 The district court sentenced appellant to 228 months in prison, an upward 

durational departure of 67 months above the 161-month presumptive sentence and less 

than the 240-month statutory maximum sentence. The aggravating factors the district 

 

1

 Under Blakely v. Washington, when imposing an upward durational departure, a district 

court may only rely on facts found by a jury or admitted by the defendant, unless the fact 

is of a prior conviction. 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537 (2004). 
4 

court relied upon include that appellant was convicted of a prior felony in which the 

victim was otherwise injured, the particular cruelty of attempting to cut Y.D.’s hair 

during the current offense, and Y.D.’s particular vulnerability both during and after the 

offense. This appeal follows. 

D E C I S I O N 

A district court may depart from the presumptive sentencing guidelines when the 

record contains “substantial and compelling circumstances” for the departure. State v. 

Misquadance, 644 N.W.2d 65, 68–69 (Minn. 2002). Substantial and compelling 

circumstances include those that indicate the defendant’s conduct was significantly more 

serious than conduct typically involved in the commission of the crime. State v. Hicks, 

864 N.W.2d 153, 157 (Minn. 2015). The sentencing guidelines provide “a nonexclusive 

list of factors that may be used as reasons for departure.” Minn. Sent. Guidelines 2.D.3 

(2014). A jury must find or the defendant must admit to the facts underlying 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. Hicks, 864 N.W.2d at 156. A district court abuses its discretion when its 

reasons for departure are “improper or inadequate.” Id. 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. 
5 

The district court first found that an upward durational departure was warranted 

because “the current conviction is for . . . an offense in which the victim was otherwise 

injured and there is a prior felony conviction for . . . an offense in which the victim was 

otherwise injured.” Minn. Stat. § 244.10, subd. 5a(a)(3). The prior conviction upon 

which the state relied is appellant’s prior felony terroristic-threats conviction in which the 

victim was otherwise injured. 

Appellant argues that the statute requires a prior felony conviction involving 

injury to the victim, in contrast to “a prior victim-injury incident” of which victim injury 

was not an element of the offense. In support of his argument, appellant asserts that the 

state’s reliance on State v. Stauffacher, 380 N.W.2d 843 (Minn. App. 1986), review 

denied (Minn. Mar. 21, 1986), and State v. Peake, 366 N.W.2d 299 (Minn. 1985), is 

misguided because, in both cases, victim injury was an element of the prior felony 

conviction. Appellant also asserts that to interpret the statute as requiring only a victiminjury incident would go against State v. Meyers, which requires “a prior conviction for a 

specified offense.” 869 N.W.2d 893, 899 (Minn. 2015). We are not persuaded. 

The plain language of the statute and caselaw interpreting it do not require victim 

injury as an element of the prior felony conviction. The statute states that a district court 

may depart from the sentencing guidelines where, in both the current and prior felony 

conviction, the victim was otherwise injured. The statute does not indicate that victim 

injury is a required element of the prior felony conviction. Thus, the statute includes 

prior felony convictions in which victim injury both was and was not an element of the 

charge. 
6 

Caselaw interpreting the statute supports a broad reading of the “in which the 

victim was otherwise injured” language. In Stauffacher, this court noted that “a departure 

is proper where appellant has a prior felony conviction in which the victim was injured 

regardless of whether injury to the victim was an element of either crime.” 380 N.W.2d 

at 850 (citing Peake, 366 N.W.2d at 301). Additionally, in Peake, Peake argued that a 

district court cannot use past violence as an aggravating factor when violence is an 

element of the prior and current offenses. 366 N.W.2d at 301. The supreme court 

rejected Peake’s argument because “[u]se of past injury to a victim would then be limited 

to violence used in crimes where violence is not an element of the crime.” Id. Adopting 

appellant’s interpretation of Stauffacher and Peake would ignore the fact that both cases 

consider the use of a prior felony conviction for which victim injury is not an element 

valid under the statute. 

Further, interpreting the statute as requiring only a prior victim-injury incident 

would not go against Meyers because Meyers does not indicate that the statute requires a 

specialized type of offense in the way appellant argues. Rather, Meyers states that the 

necessary “specified offense” is “one involving victim injury,” which is consistent with 

the statute. 869 N.W.2d at 899. 

The district court did not abuse its discretion by imposing an upward durational 

departure because the statute does not require victim injury as an element of the current 

or prior felony conviction. Because a district court may use a single aggravating factor to 

support an upward durational departure, we need not address appellant’s arguments 
7 

against the district court’s reliance on particular cruelty and particular vulnerability.2

Dillon, 781 N.W.2d at 599 (“Even a single aggravating factor may justify a departure.”); 

Peake, 366 N.W.2d at 301 (“[W]here past crimes are violent and the present crime is a 

continuation of the violence, departure is permissible under the guidelines.”). 

Affirmed. 

 

2

 We note that particular vulnerability is also present in this case. A district court may 

impose an upward durational departure where “the victim was particularly vulnerable due 

to age, infirmity, or reduced physical or mental capacity, which was known or should have 

been known to the offender.” Minn. Stat. § 244.10, subd. 5a(a)(1) (2014). Particular 

vulnerability arises when the victim’s vulnerable state makes an assault “more effective.” 

Dillon, 781 N.W.2d at 600. Here, appellant stabbed Y.D. after he struck her and she fell 

to the ground. When appellant stabbed Y.D., her back was facing him and she was 

positioned in a corner of a building. Therefore, Y.D. was particularly vulnerable due to 

her known position when appellant stabbed her.