Sentencing Juries

Kelvin Jackson: A jury convicted Jackson of aggravated first degree robbery. Jackson and a woman forced their way into the victim’s house, robbed and assaulted the victim. The assault resulted in a fracture of the left orbital floor and lacerations to the scalp. On the way to the hospital, the victim suffered a heart attack.

The original charge had been aggravated first degree robbery (dangerous weapon). Before trial, the state added another aggravated first degree robbery ((inflicts bodily harm), a count of second degree burglary, and an assault count for the heart attack. The court granted a judgment of acquittal on the assault charge and the jury convicted on all remaining counts.

During the penalty phase, the jury was asked, and answered yes, to three questions: Did the aggravated robbery occur in the victim’s home? Did the victim sustain multiple blows to the head? Did the victim sustain an orbital fracture? At sentencing, the court imposed an executed sentence of 120 months on first degree aggravated robbery (dangerous weapon). The court based the departure on the seriousness of the victim’s injuries, and on the invasion of the victim’s zone of privacy.

Justice Page garners a majority to reverse the enhancement. Regarding the nature of the victim’s injuries, the orbital fracture is “substantial bodily harm,” which is third degree assault. Because third degree assault was not charged this is an improper basis for departure. (Even had three degree assault been charged, a departure would have been improper on the basis of the cumulative punishment for conduct that constitutes more than one offense.

Regarding zone of privacy, that’s a burglary, also not charged. Although Jackson could have been sentenced on both the robbery and the burglary had he been charged and convicted, the aggravated sentence imposed, 120 months, exceeds the maximum guidelines sentence that could be imposed for the two offenses. This is thus an impermissible basis for departure.

Justice Gildea, joined by Justice Barry Anderson and Justice Dietzen, writes a vigorous dissent.