This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
William George Wasson,
Filed October 31, 2000
Reversed and remanded
Clay County District Court
File No. K2-99-429
Mike Hatch, Attorney General, Robert Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Lisa Borgen, Clay County Attorney, Courthouse, P.O. Box 280, Moorhead, MN 56561 (for respondent)
Howard Bass, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Schumacher, Judge.
William George Wasson was charged and convicted of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subds. 1(g) (significant relationship), 1(h)(iii) (1996) (significant relationship and multiple acts committed over extended period of time). The trial court ordered a sex offender assessment under Minn. Stat. § 609.3452 (1998). At sentencing, the trial court found on the record that (1) Wasson’s “conduct involved a pattern of behavior that had sexual conduct as its goal,” (2) Wasson was a danger to the public, and (3) Wasson needed treatment beyond the presumptive term of imprisonment of 86 months. The court sentenced Wasson as a patterned sex offender and imposed a 360-month sentence, more than four times the presumptive sentence. See Minn. Stat. § 609.1352 (1996) (patterned sex offender statute in effect at time of Wasson’s offenses); Minn. Stat. § 609.108 (1998) (recodified patterned sex offender statute, which is substantially identical to prior statute).
Wasson appeals, arguing that the trial court failed to base its determination that he is a patterned sex offender on a professional assessment, as required by the statute. Because the examiner appointed to conduct the sex offender assessment did not consider whether Wasson was a patterned sex offender and did not explicitly conclude that Wasson met this statutory definition, we reverse and remand to allow further evidence to be presented on this issue.
D E C I S I O N
Sentencing under the patterned sex offender statute constitutes a departure from the sentencing guidelines. Minn. Stat. § 609.108, subd. 5. The decision to depart from the guidelines rests within a trial court’s discretion, and this court will not reverse such a decision absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
The patterned sex offender statute requires, among other things, that the court find that a defendant needs long-term treatment or supervision beyond the presumptive term of imprisonment. Minn. Stat. § 609.108, subd. 1(a)(3); State v. Stirens, 506 N.W.2d 302, 305 n.6 (Minn. 1993). When making this determination, “a court must also rely on an assessment by an examiner experienced in evaluating sex offenders concluding that the offender is a patterned sex offender.” Stirens, 506 N.W.2d at 305 n.6; State v. Christie, 506 N.W.2d 293, 298 (Minn. 1993) (“offender’s need for long-term treatment or supervision must be based upon a professional evaluation, the details of which are delineated thoroughly in the statute”). The statute defines a patterned sex offender as “one whose criminal sexual behavior is so engrained that the risk of offending is great without intensive psychotherapeutic intervention or other long-term controls.” Minn. Stat. § 609.108, subd. 1(a)(3).
After the jury returned its verdict, the trial court ordered an evaluation by Dr. R.P. Ascano “to ascertain [Wasson’s] amenability to and need for sex offender treatment.” See Minn. Stat. § 609.3452, subd. 1 (requiring sex offender assessment). Ascano reviewed the complaint, administered six psychological tests to Wasson, and interviewed Wasson for one hour. In his report, Ascano noted that prior to the current offenses, Wasson had no criminal history. With respect to the current offenses, Ascano noted that Wasson, a long-distance truck driver, would take his stepdaughter on road trips and first started abusing her when she was 12 years old; the abuse “continued intermittently until [she] was 16 years old,” and “sexual intercourse * * * occurred at least 30 times that [Wasson] could recall.” Ascano concluded:
Based on the results of the [psychological tests], the undersigned is significantly concerned about [Wasson’s] risk to public safety without prolonged sex offender treatment intervention or rehabilitation, especially considering the duration and frequency of the sexual relationship he has had with his stepdaughter.
If [Wasson] does, in fact, receive intervention while incarcerated in a penitentiary, upon his release, he should also be mandated * * * to receive transitional sex offender treatment programming into the community to minimize his risk of recidivism as a pedophile. He should also be mandated to have no contact with anyone under the age of 18 without supervision by another adult until such a time as he completes his sex offender treatment.
At the time Ascano prepared his report, the presentence investigation report (PSI) had not yet been completed, the presumptive sentence had not yet been calculated, and the trial court had not yet notified the parties that it would consider sentencing Wasson as a patterned sex offender.
Although the trial court referred to Ascano’s report at the sentencing hearing, the court anticipated that Wasson’s attorney would “assert that the court cannot sentence [Wasson] under the patterned sex offender statute without an expert opinion * * * that [Wasson] meet[s] a psychiatric definition of patterned sex offender.” The court nevertheless concluded “it is the role of the court and not the role of an expert” to make this determination. The court determined that Wasson met the statutory definition because “[t]here’s no way in this court’s opinion that [Wasson] could * * *, in an 86 month period of time, successfully deal[ ] with [his] proclivities.”
Given the extreme length of the sentences authorized by this statute, however, the legislature entrusted this critical conclusion to an expert. Cf. Stirens, 506 N.W.2d at 305 (“detailed findings required by the statute act as a protection from the abuse of discretion by trial courts”). Thus, under the plain language of the statute, a trial court is required to base its finding on a professional assessment by an expert examiner who concludes that the defendant is a patterned sex offender; a trial court has no authority to impose this type of a sentence without such an assessment.
Although the assessment need not contain the specific phrase “patterned sex offender,” the expert’s conclusions must closely mirror the statutory definition, which requires engrained behavior that greatly increases the risk of recidivism. Minn. Stat. § 609.108, subd. 1(a)(3). This definition has been met in cases involving repeat offenders who, in the expert’s opinion, are at a high risk of reoffending even with treatment. See, e.g., Christie, 506 N.W.2d at 295 (psychologist concluded defendant “had the quality of a fixated sex offender profile,” which psychologist believed was synonymous with patterned sex offender); State v. Lunsford, 507 N.W.2d 239, 241 (Minn. App. 1993) (psychiatrist testified at hearing that defendant “is a patterned sex offender, with a high risk for reoffending and a need for long-term treatment”), review denied (Minn. Dec. 14, 1993); State v. Barber, 494 N.W.2d 497, 502 (Minn. App. 1993) (psychologist’s report concluded defendant “must be viewed as a patterned sex offender who presents a danger to the community and needs long-term supervision and control to reduce the risk of reoffending”), review denied (Minn. Feb. 25, 1993).
Ascano’s report cannot be read to conclude that Wasson meets the definition of a patterned sex offender. Rather, Ascano recommends that Wasson receive sex offender treatment while incarcerated and upon his release “to minimize his risk of recidivism as a pedophile.” Ascano does not conclude that Wasson’s criminal sexual behavior is “so engrained that [his] risk of reoffending is great,” as required by Minn. Stat. § 609.108, subd. 1(a)(3) (definition of patterned sex offender). Nor does the record in this case necessarily establish that Wasson is likely to reoffend unless incarcerated beyond the presumptive term of imprisonment: Wasson has no prior criminal history, has never received treatment or failed any sex offender treatment programs, and has no history of seeking out or approaching other potential victims. Although Ascano comments that, based on Wasson’s psychological tests, Wasson “has a significant behavioral pattern as it pertains to cruising or grooming of potential victims,” the statute specifically states that the conclusion that a defendant is a patterned sex offender “may not be based on testing alone.” Minn. Stat. § 609.108, subd. 1(a)(3).
We therefore reverse and remand the matter to allow the parties to present evidence in the form of an expert assessment to determine whether Wasson meets the statutory definition of patterned sex offender. The trial court may also reconsider whether other aggravating factors exist to support an upward departure from the sentencing guidelines, as recognized in the PSI or argued by the state, which moved for a triple durational departure prior to sentencing. See Minn. Sent. Guidelines II.D.2.b (setting out nonexclusive list of aggravating factors).
Reversed and remanded.
 At oral arguments before this court, the state questioned whether the trial court imposed a 30-year or a 40-year sentence, which would have gone beyond the statutory maximum and raised a potential issue under Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). A reading of the sentencing transcript, however, establishes that the trial court merely mentioned a 40-year sentence in passing; the court actually imposed a 30-year sentence and the warrant of commitment confirms that a 30-year sentence was imposed. Moreover, because we are reversing and remanding for resentencing, we need not decide whether this case presents an Apprendi issue.