Opinion
No. CX-01-1509.
Filed February 5, 2002.
Appeal from the District Court, Dakota County, File No. K8002852.
Mike Hatch, Attorney General, and James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Debra E. Schmidt, Assistant County Attorneys, (for appellant)
Kai J. Lahti, (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Following respondent's conviction of second-degree assault and kidnapping, the district court stayed execution of the presumptive sentence and placed respondent on probation for up to 15 years. The state challenges the dispositional sentencing departure, arguing the district court failed to consider significant offense-related factors. Because the district court did not abuse its broad discretion in sentencing, we affirm.
FACTS
On September 23, 2000, respondent Marlowe Medland purchased a used boat from Boatland in Burnsville, Minnesota. When respondent first drove the boat, he noticed various mechanical problems. As a result, respondent brought the boat back to Boatland and asked for a refund. The Boatland salesman refused to refund the purchase price and told respondent the boat would take one day to repair. Respondent left the boat and returned more than a week later to discover that the unrepaired boat had been moved to the Boatland service lot in Savage, Minnesota. Respondent went home and called the salesman to tell him that he would return the next day to either retrieve the boat or collect a refund.
The next day respondent returned to Boatland, entered the sales office with a .38 caliber handgun concealed in his briefcase, and asked to speak with the salesman alone in the salesman's office. By his own account, respondent's intention was either to force the salesman to return his money or to kill the salesman and himself. In the office, the salesman informed respondent that the boat was still not repaired, and again refused his request for a refund. Respondent took out the gun, pointed it at the salesman, and demanded a check for $8,496.46, the price of the boat. Respondent told the salesman that he could not leave until he gave respondent the check.
Other Boatland employees, hearing loud noises in the salesman's office, opened the office door and observed respondent and the salesman. Respondent displayed the gun and told the employees to get out. Police surrounded the building, established communications with respondent by telephone, and began negotiating the release of the salesman. Respondent held the salesman hostage for approximately 90 minutes, during which time he pointed the cocked gun at the salesman, told the salesman that the gun was loaded with hollow-point bullets, and that he was going to kill both of them. The police had respondent's wife come to Boatland. After Boatland gave a check for $8,496.46 to respondent's wife, respondent released the salesman and surrendered.
Respondent was charged with kidnapping in violation of Minn. Stat. § 609.25, subd. 1(1) (1998); and second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (1998). Because appellant used a firearm in committing the offenses, the presumptive sentence for each charge was 36 months executed, under Minn. Stat. § 609.11, subd. 5(a) (1998). The district court ordered a preplea, presentence investigation, which was prepared by Eric Ellestad, a Dakota County probation officer.
Respondent remained in jail for four days, at which point he was moved to Regions Hospital in St. Paul for a two-week, court-ordered, psychological evaluation. Doctors diagnosed him with depression and diabetes and prescribed medications. Respondent began outpatient therapy with a psychotherapist and a psychiatrist.
On February 27, 2001, probation officer Ellestad submitted his preplea, presentencing investigation. The investigation included reports by respondent's psychotherapist and psychologist, who agreed that prior to the Boatland incident, respondent had been severely depressed and under an inordinate amount of stress due to the deaths of close family members, back surgery, chronic back pain, and sleep deprivation. The psychologist reported that respondent's depression provoked the catastrophic collapse of his psychological defenses, judgment, and behavioral control.
Ellestad did not recommend departing from the presumptive 36-month sentence for each charge. He wrote that, while respondent's depression could qualify as a mitigating factor, "the offense behavior is so serious and dangerous that this overshadows consideration for a departure."
Respondent pleaded guilty to both assault and kidnapping after the court indicated a possibility of departing from the sentencing guidelines if respondent so pleaded. Testifying at the plea hearing, respondent acknowledged that before and during the incident at Boatland, his intention had been to kill the salesman and himself, and not simply to frighten the salesman. Respondent also acknowledged that, just after the incident, he had said to police, in reference to the salesman, "I don't regret that I scared the s — t out of that f---er," and, "I should have shot him." He said that, although he had been "very out of control" at the time of the incident, he had since become a "completely" different person. The state requested a sentencing hearing.
Eric Ellestad testified at the sentencing hearing. He said that since the incident, respondent had come to understand that his reasoning on October 10 was "incorrect" and symptomatic of the depression he was experiencing at the time. Ellestad said that when respondent entered Boatland on October 10, he knew that the loaded gun in his possession was capable of killing people.
Ellestad testified that respondent had communicated "a full expression of remorse" about the incident "on a number of different levels," that respondent was aware of the impact the incident would have on his wife and on himself, and that in retrospect, respondent realized that "the victim did nothing to deserve having a gun stuck in his face." Ellestad nonetheless reiterated his previous recommendation that the court not depart from the presumptive sentence:
[A]lthough the depression [respondent] was experiencing at the time could qualify as a mitigating factor, the overall seriousness of the offense, the involvement of a firearm, the fact that the victim was held for several hours at gunpoint, were so severe that it precluded me from recommending a departure from the guidelines.
Respondent testified at the sentencing hearing that, in the weeks leading up to the incident, he was irritated and angry due to his untreated depression and diabetes. He expressed a willingness to apologize to the victim, and recognized that his actions had been "wrong." The state questioned the severity of respondent's depression and the sincerity of his remorse, and noted that the probation officer had recommended imposing the mandatory sentences.
The district court imposed the presumptive sentence of 36 months for each offense, but departed dispositionally by staying execution of the sentences and placing respondent on probation for up to 15 years. One condition of probation was that respondent spend a year in jail. In departing downward, the court reasoned that (1) at the time of the incident, respondent lacked substantial capacity for judgment because of untreated depression and diabetes; (2) respondent was at a low risk to reoffend, and did not pose a substantial future risk to the victims or others; and (3) respondent was amenable to treatment. This appeal follows.
DECISION
The only issue before this court is whether the district court abused its discretion by staying execution of the presumptive sentence of incarceration and placing respondent on probation. The state argues that the district court erred by not balancing the offense-related aggravating circumstances against the offender-related mitigating circumstances before sentencing appellant, thereby significantly understating the degree of respondent's culpability.
The district court has broad discretion to depart from a presumptive sentence where aggravating or mitigating factors are present, and we review a decision to depart under an abuse-of-discretion standard. State v. Barsness, 473 N.W.2d 325, 329 (Minn.App. 1991), review denied (Minn. Aug. 29, 1991). If the district court record supports a sentencing departure, we will affirm. See Minn. Stat. § 244.11, subd. 2(b) (1998) (authorizing appellate court "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"); Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).
The district court may depart from a presumptive sentence where an offense involves "substantial and compelling circumstances." Barsness, 473 N.W.2d at 329; Minn. Sent. Guidelines II.D. A defendant's particular amenability to individualized treatment in a probationary setting is a substantial and compelling circumstance that justifies imposing probation in lieu of an executed sentence. See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); State v. Gebeck, 635 N.W.2d 385, 389 (Minn.App. 2001).
The so-called Trog factors that assist courts in determining amenability to probation are "the defendant's age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family." Trog, 323 N.W.2d at 31. A finding that a defendant is "unamenable to correction by imprisonment" can support a departure. State v. Cameron, 370 N.W.2d 486, 487 (Minn.App. 1985) (citation omitted), review denied (Minn. Aug. 29, 1985).
The degree of a defendant's culpability is relevant to a grant of durational departure. See id. But when granting a dispositional departure, the district court focuses more on the defendant as an individual and on whether the presumptive sentence would be best for the defendant and for society. Id.; see State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995) (noting that "offender-related" factors such as amenability to treatment can be used to justify dispositional departures, while "offense-related" aggravating factors can be used to justify both dispositional and durational departures); State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (describing defendant's dangerousness and unamenability to probation as "perpetrator-related factors that would bear only on a dispositional departure"). A departure must balance the mitigating and aggravating factors of a given case without understating the degree of defendant's culpability or the severity of the offense. State v. Law, 620 N.W.2d 562, 565 (Minn.App. 2000), review denied (Minn. Dec. 20, 2000).
The state argues that the district court's balancing of aggravating and mitigating factors was flawed because the court ignored the offense-related aggravating factors of respondent's crime, which was premeditated, created a significant risk to others, and showed particular cruelty to the salesman. But the district court recognized the severity of the offense, calling it "extremely serious," and a "trauma" that had a "devastating effect" on the salesman and on "the other individuals who were terrorized by [respondent] on this occasion."
The state argues that the district court erred by considering such factors as respondent's age, criminal history, and employment history in departing downward. While the state is correct in stating that these factors cannot be used to support a durational departure, they may be considered in determining whether an individual is amenable to probation. See Trog, 323 N.W.2d at 31. The district court did not err in considering these factors for the purpose of determining amenability to probation.
The state challenges the sincerity of respondent's remorse because of unrepentant statements he made just after the incident. But the district court observed respondent's testimony at the plea and sentencing hearings, and found his remorse to be sincere. We must defer to the district court's assessment of the sincerity and depth of the appellant's testimony and the weight it should receive in the sentencing decision. See State v. Sejnoha, 512 N.W.2d 597, 600 (Minn.App. 1994), review denied (Minn. Apr. 21, 1994).
The district court found that probation was appropriate because respondent was at a low risk to reoffend and did not pose a substantial risk to himself or to others.
The risk to the public safety incurred in placing an offender on probation is significant and is a factor in the decision whether to depart dispositionally.
Id. (citation omitted). Here, the district court found that respondent posed no risk to public safety, despite the great danger he posed to a number of people during the Boatland incident, and that prison was, therefore, inappropriate. See Cameron, 370 N.W.2d at 487 (holding that a defendant's particular unamenability to correction by imprisonment is a substantial and compelling circumstance justifying a dispositional departure).
The state challenges the district court's finding that respondent lacked substantial capacity for judgment because of a mental impairment due to his depression and diabetes. The state argues that this finding "was a significant overstatement to justify the decision not to send the Respondent to prison." But the degree to which respondent lacked substantial capacity for judgment is the type of factual issue best decided by the district court. Barsness, 473 N.W.2d at 329. The district court found that a combination of respondent's untreated depression, his undiagnosed diabetes, and the various emotional stressors described by his psychologist and psychotherapist, severely compromised his judgment and reasoning.
On a sentencing appeal,
it is not our role to substitute our own judgment for that of the district court, but to determine whether the state has shown an abuse of discretion in the sentence.
Sejnoha, 512 N.W.2d at 601. Here, the record demonstrates that the district court weighed the likely impact of a fixed prison sentence of approximately three years with no guarantee of treatment against one year of incarceration with a treatment program and highly structured probation extending over 15 years. See id. (weighing relative benefits of incarceration and treatment).
We stress the gravity of respondent's crime, which by any reasonable standard was totally disproportional to any stress provoked by Boatland's refund and repair policy. Respondent, in a premeditated act, held the salesman hostage at gunpoint for 90 minutes. Respondent was armed the entire time and, although no actual physical harm was inflicted, he tormented and threatened the salesman, and there was a continuing and significant risk of violence. If not for timely and effective police intervention, respondent's actions could easily have resulted in injury or death to respondent and others.
We cannot say that, given these facts, we would have granted respondent a downward dispositional departure. But our function as an appellate court is not to reweigh the evidence; rather, it is to determine if the evidence as a whole sustains the district court's findings. In re Salkin, 430 N.W.2d 13, 16 (Minn.App. 1988), review denied (Minn. Nov. 23, 1988). So while we might well have reached a different result on the issue of sentencing, there is sufficient evidence in the record before us to justify the district court's decision.
The district court did not exceed its broad range of discretion by not imposing a presumptive executed sentence. See Law, 620 N.W.2d at 565 (reversing downward dispositional departure for lack of substantial and compelling circumstances). We, therefore, affirm.