Opinion
No. A04-2100.
Filed July 12, 2005.
Appeal from the District Court, Mille Lacs County, File No. K0-03-535.
Janice S. Kolb, Mille Lacs County Attorney, and Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, (for respondent).
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, (for appellant).
Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
After his conviction of attempted second-degree murder, appellant moved for downward dispositional and durational departures. The district court denied his motion and imposed a 147-month prison sentence, the lower limit of the presumptive range. Appellant now challenges the denial of his motion. Because the district court properly exercised its discretion, we affirm.
FACTS
On the evening of April 16, 2003, appellant Daniel Wind and his girlfriend R.S. attended a party where appellant consumed a large amount of liquor. After they got into an argument, R.S. took the car and went home. Appellant and R.S. were living in a house with their child and R.S.'s mother and brother.
Appellant walked home around 3 a.m. the next morning. When he arrived at the house, he grabbed R.S. by the hair and pulled her down the stairs while punching her. He went to the garage to get a rifle and returned to the house while yelling for R.S. When R.S.'s mother tried to grab the rifle, it fired. R.S. and her mother and brother barricaded themselves in a bedroom to get away from appellant. After appellant unsuccessfully tried to force the door open, he fired several shots into the door. When appellant's mother told him R.S. was sitting in the car, he yelled that he would shoot his mother or brother if R.S. did not appear. Then he fired several more shots into the bedroom he shared with R.S., the barricaded upstairs bedroom, and into the car. During this shooting spree, he fired approximately 19 times.
Appellant was charged with three counts of attempted second-degree murder, three counts of second-degree assault, two counts of attempted first-degree murder, terroristic threats, escape from custody, child endangerment, third-degree criminal damage to property, and fifth-degree assault. Pursuant to a plea agreement, the state agreed that it would not ask for more than the presumptive sentence, and appellant would be free to ask for a shorter sentence or probation. Appellant pleaded guilty to one count of attempted second-degree murder. At sentencing, appellant moved for both downward durational and downward dispositional departures. Both parties argued regarding the merits of the request for downward departures. The district court denied appellant's motions and imposed a 147-month sentence, which is the lower limit of the presumptive range of 147 to 159 months for appellant's crime. Appellant challenges the denial of the downward departures.
DECISION
District courts apply presumptive sentences "with a high degree of regularity." Minn. Sent. Guidelines cmt. II.D.03. But the district court "may" depart from a presumptive sentence if it finds substantial and compelling reasons to do so. Minn. Sent. Guidelines II.D. While the district court "may" depart, it exercises its broad discretion whether or not to depart, and appellate courts will generally not interfere. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). "[I]t would be a rare case which would warrant reversal of the refusal to depart." Id.
Here, appellant moved for both downward durational and dispositional departures from the presumptive sentence. Appellant argues that the district court failed to adequately consider factors favoring downward departures. The district court stated that it examined the evidence supporting a downward departure, including appellant's prior criminal history, his behavior on probation, the duration and impulsivity of the act, and victim impact statements, before it determined that downward durational or dispositional departures were not warranted.
Thus, the district court weighed factors both for and against departure and determined that substantial and compelling reasons did not exist to depart downward. See State v. Curtiss, 353 N.W.2d 262, 264 (Minn.App. 1984) (court should consider arguments for departure along with reasons for non-departure). Although appellant argues that the departure was justified by his remorse, criminal history score of zero, completion of an anger-management program, full-time job, and cooperation with law enforcement along with other factors, so long as the district court considered the relevant reasons to depart and not to depart, its discretionary decision will not be disturbed on appeal. See Kindem, 313 N.W.2d at 8.
Appellant also argues that State v. Trog, 323 N.W.2d 28 (Minn. 1982), justifies granting him a downward departure because he has the same attributes that justified a downward departure in that case: youth, lack of a significant prior record, remorse, cooperation, respectful attitude in court, and support of family and friends. But in Trog, the reviewing court merely upheld the district court's discretion to grant a downward dispositional departure. Id. at 31. Thus, Trog affirmed the discretion exercised by the district court. Here, the district court considered the attributes raised by appellant, and concluded that a downward departure was not justified. The record supports that determination.
Further, this court will generally not review sentences that are imposed within the presumptive range. See State v. Witucki, 420 N.W.2d 217, 223 (Minn.App. 1988), review denied (Minn. Apr. 15, 1988). Here, appellant's sentence was 147 months, which is the lower end of the presumptive range. In any event, our review of the district court's deliberation over mitigating factors indicates that it adequately exercised and did not abuse its discretion by denying appellant's motion for downward dispositional and durational departures. We affirm.