This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,


Dino Philip Guerin,


Filed February 20, 2001


Stoneburner, Judge


Dakota County District Court

File No. K600324



Earl P. Gray, Mark D. Nyvold, 1030 Minnesota Building, 46 East 4th Street, St. Paul, MN 55101 (for respondent)


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


James C. Backstrom, Dakota County Attorney, Kevin P. Shea, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)


          Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




          The state argues that the district court improperly granted a downward durational departure in sentencing respondent Dino Philip Guerin.  Because the district court did not abuse its broad discretion in finding that mitigating factors exist, we affirm.



          Between September 21 and 27, 1999, respondent Dino Philip Guerin issued, presented, and cashed seven checks at Norwest Bank locations in Ramsey and Dakota counties.  These checks were dishonored for insufficient funds, and Guerin did not comply with Norwest’s demand for repayment.  Guerin was charged with one count of Issuance of Dishonored Checks, Minn. Stat. § 609.535, subds. 2, 2a(a)(1) (1998 & Supp. 1999).  He entered a guilty plea on the sole count of the complaint and moved for a downward departure of his presumptive sentence, a stayed sentence of one year and a day on the basis that he suffered from a mental impairment defined as pathological gambling. 

          The district court granted the downward departure and sentenced Guerin within the parameters of a gross misdemeanor to a stayed sentence of one year.  See State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (determining one year gross misdemeanor sentence, although only one day less than presumptive year-and-a-day felony sentence, was durational departure), review denied (Minn. Oct. 27, 1994).  The district court articulated several reasons for granting the downward departure: Guerin’s lack of a prior record, his efforts to pay restitution, his public admission of wrongdoing, and his suffering from a mental impairment.  The state argues (1) that the district court abused its discretion in granting a downward departure, because Guerin failed to prove that he had a compulsive gambling mental impairment, and (2) that the district court improperly considered Guerin’s lack of a prior record, his payment of restitution and his status as an elected official. 

The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  The district court has broad discretion to depart from the sentencing guidelines where aggravating or mitigating factors exist.  State v. Barsness, 473 N.W.2d 325, 329 (Minn. App. 1991) (citing State v. Best, 449 N.W.2d 426, 427 (Minn. 1989)), review denied (Minn. Aug. 29, 1991).  The degree to which the defendant “lacked substantial capacity for judgment is the type of factual issue best decided by the trial court.”  Barsness, 473 N.W.3d at 329. 

The sentencing guidelines provide a non-exclusive list of factors justifying a downward departure; but the factors on which the district court relies must somehow tend to excuse or mitigate the offender's culpability for the offense.  Herme v. State, 384 N.W.2d 205, 208 (Minn. App. 1986), review denied (Minn. May 27, 1986); Minn. Sent. Guidelines II.D.2.a, b (providing non-exclusive list of aggravating and mitigating factors).  The sentencing guidelines specifically allow for the district court’s discretion.  See Minn.Sent. Guidelines II.D.2.a(5) (allowing departure when “[o]ther substantial grounds exist which tend to excuse or mitigate the offender’s culpability, although not amounting to a defense.”). 

The district court determined that mitigating factors exist in this case.  The district court made specific findings that Guerin met the diagnostic criteria for compulsive gambling disorder, basing its findings on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).  The district court found that Guerin is “[p]reoccupied with gambling,” “[g]ambles as a way of escaping problems,” and has had “[u]nsuccessful efforts to control” his problem.  Additionally, the district court concluded that “after losing money gambling, [Guerin] return[ed] the next day to get even,” he “lied to others,” “[j]eopardized [his] job or relationship,” and “[r]elie[d] on others to provide money.”  The district court made extensive findings and carefully reviewed the diagnostic criteria.  The Pre-Sentence Investigation supports these findings.

           The state cites State v. O’Brien, 429 N.W.2d 293 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988), for the proposition that a compulsive gambling disorder does not support a downward departure from the presumptive sentence.  The O’Brien decision is distinguishable because the court considered other factors, which do not exist in this case, beyond the defendant’s gambling disorder in denying the downward departure, such as the defendant’s history of flight from authorities and his refusal to voluntarily enter a treatment program.  See id. at 295.  Moreover, affirmance of a refusal to depart does not forclose the district court from departing on the same grounds in another case.  See generally State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (holding that appellate court will generally not interfere with district court’s discretion in refusing to depart).  O’Brien does not hold that a compulsive gambling disorder is an improper basis for mitigation of sentence.

              In addition to the gambling disorder, the district court noted Guerin’s efforts to pay restitution, his lack of a prior record, and his status as an elected official.  A defendant’s clean record is an improper factor in justifying a departure because the sentencing guidelines already take into account that factor, in the form of the defendant’s criminal history score of zero, in establishing the presumptive sentence.  State v. Cizl, 304 N.W.2d 632, 634 (Minn. 1981).  The payment of restitution prior to sentencing is also not a mitigating factor.  State v. Staten, 390 N.W.2d 914, 917 (Minn. App. 1986).  Additionally, consideration of extensive publicity regarding the case because of the defendant’s public status is also an improper factor.  Id. at 916; see Minn. Sent. Guidelines I, II.D.1.c(1) (determining occupation or impact of sentence on profession or occupation improper mitigating factor); see also State v. Vahabi, 529 N.W.2d 359, 361 (Minn. App. 1995) (finding maintaining employment by avoiding deportation to ensure payment of restitution an inadequate reason for durational departure). 

           To the extent Guerin’s efforts to pay restitution, his lack of a prior record, and his status as an elected official were determinative of its decision, the district court improperly considered these factors.  Nevertheless, the district court did not abuse its broad discretion in granting the downward durational departure, because it found other mitigating factors sufficient to justify the departure.  See State v. Sebasky, 547 N.W.2d 93, 100 (Minn. App. 1996) (affirming sentence even if district court relied partly on improper considerations because departure was justified by sufficient evidence in the record) (citing Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985)), review denied (Minn. June 19, 1996).