This opinion is nonprecedential except as provided by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
                                     A23-1270

                            Michael Walton Hinton, petitioner,
                                      Appellant,

                                            vs.

                                    State of Minnesota,
                                       Respondent.

                                  Filed March 11, 2024
                                        Affirmed
                                     Cochran, Judge

                             Faribault County District Court
                                 File No. 22-CR-19-184

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Cameron Davis, Faribault County Attorney, Blue Earth, Minnesota (for respondent)

       Considered and decided by Larson, Presiding Judge; Cochran, Judge; and

Slieter, Judge.

                           NONPRECEDENTIAL OPINION

COCHRAN, Judge

       Appellant challenges the summary denial of his postconviction petition for relief.

He argues that the postconviction court abused its discretion by rejecting his argument that
the district court improperly imposed an upward durational departure. Because we discern

no abuse of discretion by the postconviction court, we affirm.

                                          FACTS

       In April 2019, respondent State of Minnesota charged appellant Michael Walton

Hinton with two counts of kidnapping, three counts of first-degree criminal sexual conduct,

one count of first-degree assault, and one count of second-degree assault with a dangerous

weapon. According to the complaint, a woman called law enforcement on the morning of

April 12 to report that she was assisting another woman who “had been beaten,

strangled, . . . and held against her will for two days by [Hinton] at his home.” Two

deputies with the Faribault County Sheriff’s Office responded to the woman’s home in

Elmore and observed the victim in “extreme pain.” The victim had “multiple stab wounds”

on her leg, “serious cuts” on her fingers, and bruising around her eyes.

       The victim told the responding deputies that she voluntarily visited Hinton’s home

on April 9 and spent the night. On April 10, Hinton began assaulting the victim and did

not allow her to leave his home. According to the victim, Hinton handcuffed and gagged

her, sexually assaulted her, strangled her until she lost consciousness, cut her fingers with

a knife when she did not “answer his questions to his satisfaction,” forced her to take a

two-hour bath with him, threatened to cut off her fingers and cut out her eyes, stabbed her

with a knife, and hit her on the face with a pipe wrench. The victim told officers that she

thought she was going to die. The victim escaped on the night of April 11, when Hinton

left the home.




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       Hinton was arrested on April 12. He admitted to law enforcement that he assaulted

the victim. He also admitted that he gagged the victim because “he didn’t want to hear her

talk anymore.” Hinton confirmed that he caused the victim to become unconscious, and

he said that he stabbed her because “he believed she was dead” and was trying to “wake

her up.”

       Law enforcement executed a search warrant of Hinton’s home and discovered leg

irons, handcuffs, knives, and a pipe wrench. They also found blood-stained clothing,

towels, and napkins “in all rooms of Hinton’s home.”

       In May 2019, the district court granted Hinton’s attorney’s motion for a competency

examination. See Minn. R. Crim. P. 20.01, subds. 3-4. In July 2019, the district court

found that Hinton was incompetent to stand trial after evaluators from the Minnesota

Department of Human Services (DHS) opined that Hinton’s “decision-making and rational

abilities relating to his legal charges are currently impaired by delusional beliefs.” But in

October 2019, a DHS evaluator determined that Hinton’s “substance-induced psychotic

symptoms” had subsided. A competency hearing was held in January 2020. Based on the

evidence at the hearing, the district court concluded that Hinton’s competency had been

restored and that Hinton could proceed to trial.

       In April 2021, Hinton reached a plea agreement with the state. Under the terms of

the plea agreement, Hinton would plead guilty to the second-degree assault charge and the

state would dismiss the remaining charges. There was no agreement as to the sentence for

the second-degree assault charge.




                                             3
       Consistent with the agreement, Hinton filed a petition to enter a guilty plea to

second-degree assault with a dangerous weapon in violation of Minnesota Statutes

section 609.222, subdivision 1 (2018). In the petition, Hinton acknowledged that the state

was seeking an aggravated sentence of 84 months—the statutory maximum sentence.

Hinton also waived his right to a jury trial on the determination of whether there were any

aggravating factors for the purposes of sentencing.        Instead, Hinton agreed that the

existence of any aggravating factors would be decided by a court trial.

       At the plea hearing, Hinton confirmed that he understood the maximum penalties

for “all of the charges in this matter” and that he agreed “with going forward based upon

[the plea agreement].” Hinton admitted that he stabbed the victim in the leg with a knife

and agreed that a knife is a dangerous weapon. Hinton did not make any other admissions

regarding what happened. Finally, Hinton stated that he understood the state was asking

the district court to find the existence of an aggravating factor that would support an upward

departure from the presumptive sentence under the Minnesota Sentencing Guidelines, and

he affirmed his waiver of a jury trial on the existence of any aggravating factors.

       After the plea hearing, Hinton signed an agreement with the state stipulating to the

admission of 53 pieces of evidence at the aggravated-factor trial. The evidence included

photos of Hinton’s home and the victim’s injuries; the victim’s medical records; videos

and transcripts of police interviews with the victim and Hinton; the transcript of the 911

call on April 12; and police reports.

       In May 2021, the district court held the aggravated-factor trial. At the trial, Hinton

again acknowledged that the evidence to be considered in determining the existence of any


                                              4
aggravating factors was “submitted by a stipulation.” And Hinton did not object when the

district court received the stipulated evidence. At the trial and in supplemental briefing,

the state argued that the stipulated evidence demonstrated that Hinton treated the victim

with particular cruelty, justifying an upward durational departure from the presumptive

sentence for second-degree assault. Hinton argued that the state failed to meet “its burden

to prove aggravating factors” and that the record did not support a determination of

particular cruelty.

       In a June 2021 order, the district court concluded that the state proved the

aggravating factor of “particular cruelty.” The district court explained its reasoning as

follows:

                      The Court finds Defendant Hinton’s actions were
              significantly more serious than those typically involved in the
              commission of second-degree assault. During the assault, [the
              victim] was handcuffed and gagged. Defendant Hinton
              acknowledged that he left the restraints on [the victim] for
              hours. While he stabbed and cut [the victim], he threatened to
              kill her. He additionally held the knife blade to her eye and
              threatened to cut out her eye. After he stabbed her, he brought
              her into an unfinished basement and hit her with a pipe wrench.
              He then opened a gas valve and threatened to blow both of
              them up. After he finished assaulting her, he instructed her to
              take her clothes off and take a bath with him. According to
              [the victim], her stab wound was bleeding profusely in the
              bathtub and she wanted to get out of the tub but Defendant
              Hinton would not allow her to. Defendant Hinton never sought
              medical attention for [the victim]; Defendant Hinton did not
              even allow her to leave the house. [The victim] was only able
              to leave and seek help after Defendant Hinton left the
              residence. The Court finds these actions are at a level of pain
              and cruelty not usually associated with second-degree assault.




                                            5
Based on these findings, the district court concluded that “Hinton treated the victim with

particular cruelty during the commission of the second-degree assault,” and the district

court could therefore “consider a sentence greater than the one prescribed by the Minnesota

Sentencing Guidelines.”

       At the sentencing hearing in June 2021, the state sought an executed 84-month

sentence, an upward durational departure to the statutory maximum. Relying on its

determination that Hinton treated the victim with particular cruelty, the district court

granted the upward durational departure and sentenced Hinton to 84 months’

imprisonment.

       Approximately two years after sentencing, Hinton filed a petition for postconviction

relief. Hinton requested resentencing within the presumptive range of 44 to 61 months for

his conviction of second-degree assault. Hinton argued that his sentence was unlawful

because the aggravating factor of particular cruelty was based on disputed allegations that

related to the dismissed charges and to uncharged conduct. 1

       The postconviction court denied Hinton’s petition for relief. The postconviction

court found that Hinton (1) understood that the state was seeking an aggravated sentence,


1
  Hinton also argued that his guilty plea was not made intelligently. In support of his
argument, Hinton submitted an affidavit in which he stated that he did not understand the
consequences of his guilty plea. Hinton petitioned the postconviction court to hold an
evidentiary hearing regarding whether his plea was made intelligently. The postconviction
court determined that the record “conclusively show[ed] that Hinton’s plea petition was
intelligently offered” and denied Hinton’s request for an evidentiary hearing. On appeal,
Hinton initially argued that the postconviction court erred by summarily denying his
petition on the guilty-plea issue. But Hinton later requested to withdraw that issue from
consideration by this court. Thus, we do not reach the issue of whether Hinton was entitled
to an evidentiary hearing on the intelligence of his guilty plea.

                                            6
(2) gave up the right to a trial by jury on the existence of aggravating factors, and (3) agreed

to a court trial on aggravated factors based on stipulated evidence that he had reviewed.

The postconviction court concluded that the stipulated evidence was “properly before the

[district] court” and supported the district court’s determination that Hinton treated the

victim with particular cruelty. Specifically, the postconviction court observed:

              Hinton was threatening to kill the victim while he was stabbing
              her, that while he stabbed her she was bleeding profusely, and
              Hinton kept her confined to the residence not allowing her to
              seek medical attention. Even though she was bleeding
              profusely from a stab wound from the assault, Hinton insisted
              she take a bath with him.

Based on those facts, the postconviction court concluded that the district court did not abuse

its discretion in determining that Hinton treated the victim with particular cruelty.

Accordingly, the postconviction court denied Hinton’s petition for relief.

       This appeal follows.

                                         DECISION

       Hinton argues the postconviction court abused its discretion when it concluded that

the district court properly sentenced him to an upward durational departure of 84 months

because the district court improperly relied on disputed conduct relating to dismissed

charges and uncharged offenses when it found Hinton acted with particular cruelty. 2 For

that reason, he contends that we should reverse the postconviction court’s order and remand



2
  The state did not file a responsive brief. “If the respondent fails or neglects to serve and
file its brief, the case shall be determined on the merits.” Minn. R. Civ. App. P. 142.03;
see also State v. Redford, 

, 261 (Minn. App. 2023) (applying rule 142.03
in a criminal case). Therefore, we shall decide this appeal on the merits.

                                               7
for resentencing within the guidelines’ presumptive sentencing range for second-degree

assault.

       “We review a denial of a petition for postconviction relief for an abuse of

discretion.” Gulbertson v. State, 

 (Minn. 2014). “A postconviction

court abuses its discretion when its decision is based on an erroneous view of the law or is

against logic and the facts in the record.” Riley v. State, 

 (Minn. 2012)

(quotation omitted).

       Minnesota Sentencing Guidelines

       Before considering whether the postconviction court abused its discretion in its

consideration of Hinton’s argument regarding his sentence, we provide a brief discussion

of the Minnesota Sentencing Guidelines. The Minnesota Sentencing Guidelines exist “to

assure uniformity, proportionality, rationality, and predictability in sentencing.”

State v. Jones, 

 (Minn. 2008) (quotation omitted). The guidelines

establish presumptive sentences for felony offenders for whom imprisonment is proper.

, subd. 5 (2022). In certain circumstances, a district court may

durationally depart from the presumptive sentence. Minn. Sent’g Guidelines 2.D (2018).

An upward durational departure must be supported by “substantial and compelling

circumstances.” Jones, 

. To be “substantial and compelling,” the

defendant’s conduct in the offense of conviction must be significantly more serious than

that typically involved in the commission of the same offense. 

       The sentencing guidelines provide a nonexclusive list of aggravating factors that

may support an upward departure.        Minn. Sent’g Guidelines 2.D.3(b) (2018).       One


                                             8
aggravating factor that may support an upward departure exists when “[t]he victim was

treated with particular cruelty for which the individual offender should be held

responsible.” Minn. Sent’g Guidelines 2.D.3(b)(2) (2018). “The presence of a single

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

 (Minn. App. 2011), rev. denied (Minn. July 19, 2011).

       In this case, the district court determined that “Hinton’s actions were significantly

more serious than those typically involved in the commission of second-degree assault”

and warranted an upward durational departure based on the particular-cruelty factor. The

district court found that Hinton acted with particular cruelty based on the stipulated

evidence that Hinton agreed would be admissible at the aggravated-factor court trial. The

postconviction court concluded that the district court did not abuse its discretion when it

found the record supported this aggravated factor.

       Hinton’s Arguments

       Hinton argues that the postconviction court abused its discretion because the district

court improperly sentenced Hinton to an upward durational departure based on “dismissed

and uncharged conduct disputed by [Hinton].” “An upward departure will be reversed if

the sentencing court’s articulated reasons for the departure are improper or inadequate and

the evidence in the record is insufficient to justify the departure.” Tucker v. State,

 (Minn. 2011) (quotations omitted).

       Hinton’s sentencing argument appears to raise two distinct issues: (1) the district

court’s reliance on conduct that he “did not readily admit to” and (2) the district court’s




                                             9
reliance on conduct that related to uncharged offenses or dismissed charges. We address

Hinton’s arguments in turn and conclude that neither argument warrants reversal.

       Disputed Conduct

       First, we address Hinton’s argument regarding whether the district court relied on

“disputed” conduct. In support of this argument, Hinton contends that he “did not readily

admit to all the conduct the sentencing court examined.”

       In Blakely v. Washington, the United States Supreme Court held that a sentence

based on facts “neither admitted by [a defendant] nor found by a jury” violates the Sixth

Amendment. 

 (2004). But “[w]hen a defendant pleads guilty, the

[s]tate is free to seek judicial sentence enhancements so long as the defendant either

stipulates to the relevant facts or consents to judicial factfinding.” 

. The

Minnesota Supreme Court has cited Blakely for these same principles.                    See

State v. Shattuck, 

 (Minn. 2005).

       Here, the record definitively shows that Hinton expressly waived his right to a jury

trial on the existence of aggravated factors and consented to judicial factfinding on the

issue. First, in the plea petition, Hinton agreed to “waive [a] jury trial on aggravating

factors and request trial to the court for sentencing.” And, at the aggravated-factor trial,

Hinton orally affirmed his waiver, confirming he knew that “the facts” to be considered by

the district court in determining the existence of aggravating factors were “going to be

submitted by a stipulation.” Hinton further acknowledged that he was giving up his “rights

to confront and cross-examine any witness that the state would present.” And Hinton stated

that he reviewed the stipulated evidence and admitted to being “familiar” with it. In short,


                                            10
Hinton waived his right to have a jury decide the existence of aggravating factors, and

instead consented to judicial factfinding based on evidence he reviewed and agreed would

be admissible. Accordingly, the district court did not abuse its discretion by finding facts

based on the stipulated evidence, and the facts found by the district court are not “disputed.”

See 

.

       Hinton’s reliance on cases that predate Blakely and Shattuck to argue otherwise is

unavailing. For instance, Hinton cites State v. Womack for the proposition that a district

court may only rely on a defendant’s conduct to durationally depart when the defendant

“admits that the underlying conduct occurred.” 

 (Minn. 1982). But in

Womack, the supreme court observed that “[g]iven the way in which the case was presented

to the [district] court, the [district] court was not entitled to act as factfinder.” 

.

Because Womack predated the United States Supreme Court’s decision in Blakely, the

Womack opinion contains no reference to the defendant waiving his right to a jury trial on

aggravating factors. See 

. Here, on the other hand, Hinton consented to the

district court acting as the fact-finder regarding aggravating factors, consistent with Blakely

and Shattuck. Blakely, 

; Shattuck, 

. We therefore reject

Hinton’s reliance on Womack and other cases predating Blakely and Shattuck.

       Conduct Relating to Uncharged Offenses or Dismissed Charges

       Next, we turn to Hinton’s argument regarding the district court’s reliance on

“dismissed and uncharged conduct.” Hinton argues that the sentencing court abused its

discretion when it found that Hinton acted with particular cruelty because the district court

relied on (1) uncharged offenses for threats of violence; and (2) allegations surrounding the


                                              11
dismissed kidnapping charges, including conduct that occurred after the stabbing that was

the basis for Hinton’s second-degree-assault guilty plea. As a result, he contends that he

was deprived of the benefit of his plea bargain. We are not persuaded.

       Hinton is correct that a sentencing departure “cannot be based on uncharged or

dismissed offenses.” Jones, 

. But “it is generally proper for the court

to consider the conduct underlying the offense of which the defendant is convicted” as a

basis for a durational departure. Shattuck, 

.

       Hinton contends that the district court improperly relied on certain conduct

including Hinton’s use of restraints on the victim, Hinton’s refusal to allow the victim to

leave his house, and Hinton’s threats to cut the victim’s eye out, kill her, and blow up the

house by opening a gas valve. Hinton asserts that these alleged acts relate only to the

dismissed kidnapping counts or to uncharged offenses for making violent threats, and,

therefore, the district court improperly relied on the acts when sentencing Hinton for the

stabbing.

       Based on the stipulated evidence, the district court found otherwise. The district

court specifically found that Hinton’s use of restraints on the victim (including binding and

gagging the victim) and his threats to murder the victim occurred during the same incident

as Hinton stabbing the victim. That the victim was bound and gagged while Hinton stabbed

her supports a determination of particular cruelty. Likewise, that Hinton threatened to kill

the victim during the same incident in which he stabbed her supports a determination of

particular cruelty. Hinton’s threats to murder the victim with the knife and his use of

restraints were therefore part of “the conduct underlying” the stabbing.             See 

                                             12
Accordingly, the district court properly relied on those facts to determine that Hinton acted

with particular cruelty when he stabbed the victim.

       Hinton’s argument that the district court should not have considered conduct that

occurred after the stabbing in determining whether Hinton treated the victim with particular

cruelty is also unavailing. The mere fact that conduct occurred after an offense does not

mean that the conduct cannot provide support for a departure. In State v. Traylor, this court

affirmed a durational departure based on the particular-cruelty factor. 

 (Minn. App. 2002), aff’d in part, rev’d in part on other grounds, 

(Minn. 2003). In affirming the durational departure, this court noted the following facts

supported the departure:

              [A]fter the stabbing, Traylor refused to let [the victim] out of
              her home for several hours so that she could receive medical
              attention. Furthermore, there was testimony that he disabled
              the telephones, further hindering her attempts to seek medical
              attention, and continued to abuse her after the stabbing.

 (emphasis added). Traylor is strikingly similar to this case, in which Hinton refused to

let the victim leave his home for several hours and continued to abuse her after the stabbing.

The fact that these actions occurred after the stabbing does not mean that the district court

could not consider the actions when determining whether Hinton acted with particular

cruelty. See id.; see also Tucker, 

 (noting that the failure to render aid

is “relevant to whether a person convicted of a crime has acted in a particularly cruel

manner”). We reject Hinton’s argument that the district court abused its discretion by

considering conduct that occurred after the stabbing.




                                             13
       It is less clear whether some of the district court’s findings, such as Hinton hitting

the victim with a wrench and threatening to blow up the house, concerned conduct

“underlying” the stabbing. Nonetheless, the district court referenced that conduct when

determining that Hinton treated the victim with particular cruelty. As follows, we conclude

that the district court made sufficient findings to determine that Hinton acted with particular

cruelty, even absent consideration of Hinton’s use of the wrench or his threats to blow up

the house.

       In Williams v. State, the supreme court announced the general rule that “[i]f the

reasons given [for departure] are improper or inadequate, but there is sufficient evidence

in the record to justify departure, the departure will be affirmed.” 

(Minn. 1985). But the supreme court later limited the ability of appellate courts to

“independently examine the record” in light of Blakely, observing that “the fact finding

function must be done by the jury, unless waived by the defendant.” Jones, 

 (quotation omitted). The supreme court has also held that “the particular cruelty

aggravating factor is a reason explaining why the facts of the case provide the district court

a substantial and compelling basis for imposition of a [sentencing departure].”

State v. Rourke, 

 (Minn. 2009). As a result, “whether those

additional facts provide the district court a reason to depart does not involve a factual

determination and, therefore, need not be submitted to a jury.” 

. Accordingly,

when a defendant waives his right to a jury trial on aggravated factors, as Hinton has here,

the supreme court’s precedent indicates that we may assess the district court’s aggravated-

factor factual findings and decide whether the findings are sufficient to support the district


                                              14
court’s determination of the particular-cruelty factor. We are satisfied that the district court

made sufficient factual findings to justify such a departure in this case.

       “Particular cruelty involves the gratuitous infliction of pain and cruelty of a kind not

usually associated with the commission of the offense in question.” Tucker, 

 (quotations omitted). In State v. Jones, the supreme court held that “leaving the

victim in a beaten condition and . . . failing to notify the paramedics” supported the

conclusion that the crime was particularly cruel. 

 (Minn. 1983).

Similarly, in State v. Sims, this court affirmed a particular-cruelty determination when the

defendant “left [the victim] to die without calling [for] help” and bragged about killing the

victim. 

 (Minn. App. 1996), rev. denied (Minn. Oct. 29, 1996).

       Taken together, these cases demonstrate that the district court made sufficient

factual findings here to conclude that Hinton treated the victim with particular cruelty “not

usually associated with the commission of” second-degree assault with a dangerous

weapon. See Tucker, 

 (quotations omitted). Based on the stipulated

evidence, the district court found that Hinton stabbed the victim while she was restrained,

and just after Hinton threatened her life. The district court further found that Hinton

(1) was indifferent to the victim bleeding profusely from the stab wound, (2) did not allow

the victim to leave his house after stabbing her, and (3) did not seek medical attention for

the victim. Putting aside the district court’s remaining findings, these findings alone were

sufficient to justify the district court’s determination of particular cruelty. Therefore, we

conclude that the district court’s determination that Hinton acted with particular cruelty




                                              15
when he stabbed the victim is supported by its findings, even without consideration of any

conduct potentially unrelated to the stabbing.

       In sum, the district court did not abuse its discretion by relying on “disputed” facts.

Instead, per Hinton’s oral and written requests, the district court engaged in judicial

factfinding on stipulated evidence. And, the district court’s findings related to conduct

stemming from and underlying the stabbing support its determination that Hinton treated

the victim with particular cruelty. Accordingly, the postconviction court did not abuse its

discretion by concluding that the aggravated sentence imposed by the district court was

properly based on Hinton’s particular cruelty.

       Affirmed.




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