This opinion will be unpublished and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

C1-00-1100

 

State of Minnesota,

Appellant,

 

vs.

 

Lauren Marvin Blais,

Respondent.

 

Filed November 21, 2000

Affirmed

Randall, Judge

Concurring Specially, Harten, Judge

 

Dakota County District Court

File No. K6-98-1830

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant Dakota County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for appellant)

 

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge, Randall, Judge, and Harten, Judge.


U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant State of Minnesota challenges a sentencing order issued following remand from this court on the original sentence.  The sentence at issue now stayed execution of the presumptive prison term for a first-degree controlled substance offense, and the district court sentenced appellant to one year in jail as part of ten years' probation.  The state argues the record does not support the district court's finding that appellant is amenable to probation and does not support the dispositional departure.  We affirm.

FACTS

                Respondent Lauren Marvin Blais was charged with a first-degree controlled substance crime for possessing 52.2 grams of cocaine.  He pleaded guilty to the charged offense. 

            Based on Blais's criminal-history score, the presumptive sentence for his offense was a 122-month, executed sentence.  At the sentencing hearing, a representative of the South St. Paul Restorative Justice Council stated that he believed Blais was a good candidate for alternative sentencing.  The district court agreed and stayed execution of a 122 months' sentence.  As a probation condition, Blais was ordered to serve 45 months in prison, followed by ten years of probation.

            The state appealed from the sentencing decision, asserting the district court had no authority to impose a term of imprisonment greater than one year as a condition of probation.  The state asserted that either the 122-month sentence should be executed or the matter should be remanded for a sentence within statutory limitations.  We agreed.  This court remanded for resentencing after concluding the district court violated Minnesota Statutes by imposing an incarceration longer than one year as a condition of probation.  State v. Blais, No. C6-99-1829 (Minn. App. Mar. 3, 2000) (order op.); see Minn. Stat. § 609.135, subd. 4 (1998) (stating court may order incarceration for up to one year as probation condition). 

            At the resentencing hearing on remand, the state presented evidence that Blais withdrew from a prison chemical dependency treatment program, and Dakota County law enforcement officers testified that they believed a 122-month prison term should be imposed.  An off-the-record sentencing circle was conducted with members of the Restorative Justice Council.  After this meeting, the district court found that Blais was amenable to probation and departed dispositionally on Blais's sentence.  The court stayed execution of the 122-month sentence, placed Blais on probation for ten years and ordered him incarcerated for one year as a condition of probation.  The state again appeals, now asserting that the district court abused its discretion by departing from the presumptive sentence.  


D E C I S I O N

A departure decision must be supported by substantial and compelling circumstances.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).

It is inaccurate to say that the trial court has broad discretion in deciding whether or not to depart.  A more accurate statement is that the trial court has broad discretion to depart only if aggravating or mitigating circumstances are present; if aggravating or mitigating circumstances are not present, the trial court has no discretion to depart.

 

State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).  The district court must give its reasons for departure on the record, and if the record supports the reasons given by the district court, the departure will be affirmed.  State v. Williams, 361 N.W.2d 840, 844 (Minn. 1985).   Also, if there is sufficient record evidence to support the departure, the departure will be affirmed even if the district court's reasons are improper or inadequate.  Id.

A stay of execution of a presumptively executed sentence may be justified by "a defendant's particular amenability to individualized treatment in a probationary setting."  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); see also State v. Carter, 424 N.W.2d 821, 824 (Minn. App. 1988) ("In order to depart dispositionally, the offender must be amenable to probation." (citation omitted)).  The court may consider numerous factors in determining whether a defendant is particularly amenable to probation, including his age, prior criminal record, remorse, cooperation, attitude in court, and support of family and/or friends.  Trog, 323 N.W.2d at 31.  

            The district court determined that Blais is amenable to probation and listed five reasons supporting its departure from the presumptive sentence:  (a) Blais has demonstrated his ability to live peaceably in prison; (b) he has been cooperative with the Restorative Justice Council and is willing to participate in a chemical dependency treatment program; (c) he is eager to be successful, is remorseful, and has the support of his family and friends; (d) he has demonstrated an interest in getting an education; and (e) he has the unconditional support of the Restorative Justice System.  The district court also pointed out that the prison system had not been successful with Blais.

            The record supports the five findings underlying the district court's determination that Blais is amenable to probation.  While the record indicates that, in the past, Blais engaged in violence while incarcerated, the most recent incident is approximately two years old.  It occurred while Blais was incarcerated in the Dakota County Jail after his July 1998 arrest for the offense leading to this sentencing.  According to the PSI report, Blais did not initiate this altercation and only defended himself against an attack.  His behavior since that date supports the district court's finding that Blais has demonstrated his ability to live with others without engaging in violence.    

Blais's cooperation with the Restorative Justice Council is firmly evidenced by the testimony of the council members.  Blais's willingness to participate in chemical dependency treatment is not as clear.  Blais dropped out of a chemical dependency treatment program while incarcerated for this offense.  According to the district court, however, Blais made this decision on the advice of his support circle from the Restorative Justice Council.  His counsel noted at resentencing that Blais had already completed the same treatment program and chose to tutor other inmates and focus on his education rather than repeating the course.  Blais's counsel further explained Blais's plans to enter a treatment facility after his release from incarceration.  The record supports the district court's finding that Blais is willing to participate in chemical dependency treatment.  Blais's testimony at resentencing indicated he has a positive attitude and is eager to be successful.  Also, the finding that Blais is interested in getting an education is supported by Blais's completion of college courses during his incarceration.  Finally, the support of the Restorative Justice System is evidenced in the record by the testimony of the group's members. 

            In Trog, the district court stayed execution of a presumptive sentence for a burglary offense and ordered probation.  323 N.W.2d at 30.  The district court supported the departure by citing the defendant's youth, the fact that it was his first offense, and the court's determination that he could be rehabilitated without imprisonment.  Id.  The supreme court affirmed and recognized that, considering a variety of factors, the defendant was particularly amenable to probation.  Id. at 31. 

            Here, the state asserts that this case is similar to Carter and distinguishable from TrogSee Carter, 424 N.W.2d 821 at 825 (determining district court abused its discretion by departing dispositionally from presumptive 54-month sentence and staying execution of sentence).  Contrary to the state's argument, although Blais does have a criminal record, like the defendant in Carter and unlike the defendant in Trog, this case is distinguishable from Carter.  The district court here found, and the record demonstrates, that Blais has the overwhelming support of the Restorative Justice Council.  See Trog, 323 N.W.2d at 31 (stating support of friends and/or family relevant to determination of whether defendant is amenable to probation).  As the district court noted, Blais did not have this support system when he was previously placed on probation and parole.  Further, unlike in Carter, the district court made specific findings that Blais was remorseful and cooperative, and the record supports these findings.  Id. (observing remorse and cooperation relevant in determining whether defendant is amenable to probation).

We give this downward dispositional departure the same scrutiny, and the same deference to the district court that the state demands when the district court has imposed an upward departure and the defendant appeals.  Here, the record easily supports the district court's findings of fact and its legal conclusions.  We find no error; the district court did not abuse its discretion when it ordered a downward dispositional departure consisting of jail time and lengthy probation.

            Affirmed.

 

 

HARTEN, Judge (concurring specially).

            Because neither party has raised or briefed facially obvious procedural issues, and because this court cannot assume district court error, I concur with the majority’s decision.  I write separately, however, to state my concerns about the district court’s application of a restorative justice program in this case.

            Minn. Stat. § 611A.775 was enacted in 1998 to authorize community restorative justice programs.  These programs are designed to support and inform criminal justice system actors in particular cases.  The statute is general rather than specific.  It identifies areas of public concern upon which program participants may make recommendations.  Nowhere does the statute indicate that its  purpose is to displace the traditional criminal justice system, and construing it to mean that the traditional sentencing authority of the district court is subordinate to a restorative justice forum would not be reasonable.  See Minn. Stat. § 645.17 (1) (1998) (legislature does not intend result that is unreasonable).

            A reading of the 40-page record of respondent’s resentencing following our remand reveals the following:

1.         The sentencing judge met with at least 12 South St. Paul Restorative Justice Council members for an off-the-record discussion of respondent’s sentence before it was imposed.

2.         The sentencing judge referred to the sentencing hearing, which apparently was not held in a courtroom, as a “meeting” rather than a hearing.

3.         The sentencing judge introduced the case on the record as being before both herself and the restorative justice council.

4.         The sentencing judge repeatedly referred to respondent by his first name and held an extended off-the-record discussion with council members about the sentence respondent was to receive.

            5.         The sentencing judge stated:

            [T]his [sentencing] is not about me and it’s not even just about Lauren [respondent].  This is about restorative justice and how our community involvement is addressing the harm that is caused by crime and how that community involvement can make a difference.

 

            6.         Respondent’s counsel stated that respondent agreed to the informal "process," but respondent was not asked to state his consent on the record.

            On the basis of the record alone, I conclude that, notwithstanding the good intentions of all participants, the procedure employed raises questions.  One might think that the judge became the alter-ego or partner of the council in sentencing respondent.  Information that might have significantly influenced respondent's sentence was off the record.

            We reversed and remanded this case for resentencing because the sentencing judge erred in staying a 122-month prison term on condition, among others, that respondent serve a 45-month prison term that the sentencing judge found  manifestly just and proper.  Now respondent remains subject to a 122-month prison term, but that term is entirely stayed on condition, among others, that he serve one year in jail—a 33-month, or almost 75%, reduction of the incarceration thought to be appropriate in the original sentence.  Obviously, respondent has benefited from the new sentence and will not now complain.  But the flawed procedure involved here invites due process scrutiny in postconviction proceedings if, in the future, respondent is ordered to serve all or a part of the 122-month prison term.