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Hajrusi v. State12/21/2004
Appellant challenges the district court's second denial of post-conviction relief from his conviction of first-degree criminal sexual conduct. Appellant argues that the 172-month sentence, a double upward durational departure, was an abuse of discretion because the sentence exaggerated the criminality of his conduct and the district court improperly relied on the victim's age as an aggravating factor. Appellant also contends that the district court improperly sentenced appellant for more than one offense arising from a single behavioral incident and violated appellant's due process rights. We affirm.
FACTS
On August 6, 1999, appellant Bajram Hajrusi sexually assaulted S.A., a 12-year-old babysitter for his children. At about 3 a.m., when Hajrusi returned home from visiting his wife in the hospital, Hajrusi woke S.A. and asked her to watch a movie. S.A. soon realized that the movie was pornographic and attempted to flee. Hajrusi grabbed S.A. from behind, forced her to the floor, fondled her breasts, and digitally penetrated her vagina. Hajrusi then attempted to penetrate S.A. vaginally and orally with his penis. When S.A. again tried to escape, Hajrusi pulled her onto the couch, put his penis between her legs and moved up and down. S.A. fled to the other side of the room where she saw Hajrusi masturbate until he ejaculated. Hajrusi threatened to kill S.A. and her family if she told anyone about the sexual assault.
Hajrusi was charged with and convicted of three counts of first-degree criminal sexual conduct. At the sentencing hearing, the district court dismissed count two because the state failed to prove each element beyond a reasonable doubt. The district court then imposed a 172-month sentence on count three, Minn. Stat. ยง 609.342, subd. 1(e)(i) (2002) (offender "causes personal injury uses force or coercion to accomplish sexual penetration"), which constitutes a double upward durational departure from the presumptive guideline sentence. We affirmed the sentence on direct appeal, holding that the district court neither abused its discretion in imposing the departure nor improperly considered factors present in the offense. State v. Hajrusi, No. C2-00-1171, 2001 WL 314913, at *4 (Minn. App. April 3, 2001), review denied (Minn. May 15, 2001).
Hajrusi filed his first petition for post-conviction relief in 2003, arguing ineffective assistance of counsel and incompetence to stand trial. Because Hajrusi failed to allege facts to support the petition, the district court denied relief without an evidentiary hearing. We affirmed the first post-conviction ruling. Hajrusi v. State, No. A03-261 (Minn. App. Nov. 4, 2003). In 2004, Hajrusi filed his second petition for post-conviction relief, arguing that the district court abused its discretion in departing upward from the sentencing guidelines and that his right to due process was violated by the prosecutor's reliance on perjured testimony at trial and testimony as to Hajrusi's willingness to submit to a polygraph test. Hajrusi also claimed ineffective assistance of both trial and appellate counsel. The district court ruled that these arguments, excluding the challenge to appellate counsel, were known at the time of Hajrusi's direct appeal and denied relief without an evidentiary hearing. The district court also denied Hajrusi's ineffective assistance of appellate counsel claim without an evidentiary hearing. This appeal followed.
DECISION
We will not disturb the district court's denial of post-conviction relief absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). When a petitioner has directly appealed a conviction, "all matters raised therein, and all claims
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