This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-2240

 

State of Minnesota,

Appellant,

 

 vs.

 

 Tony Leon Tillman,

Respondent.

 

Filed April 10, 2001

Affirmed

Hanson, Judge

 

Hennepin County District Court

File No. 00021354

 

 

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

 

Amy Klobuchar, Hennepin County Attorney; Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant) 

 

Elizabeth Hughes, Peter W. Gorman, Office of the Fourth District Public Defender, 317 2nd Avenue S., Suite 200, Minneapolis, MN 55401 (for respondent)

 

 

            Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.


U N P U B L I S H E D   O P I N I O N

HANSON, Judge

Appellant State of Minnesota challenges the sentence imposed on respondent Tony Tillman for his conviction as a felon in possession of a firearm.  The state argues that the reasons cited by the district court in departing downward from a mandatory minimum 60-month sentence were not “substantial and compelling reasons.”  We affirm.

FACTS

            On March 2, 2000, respondent Tony Tillman was waiting for a bus at the intersection of Penn Avenue North and Golden Valley Road when he was stopped by police officers.  The police were looking for a suspected domestic assault assailant who was a 30-year old black male, about five feet nine inches tall, wearing a black leather coat or vest, dark gray pants and a dark gray knit cap.  The suspect was said to be armed with a knife, heading south, and had indicated that he would use the knife against police officers.  The domestic incident had occurred about ten blocks away.  Tillman was taller than the described suspect and his clothing did not match the described clothing.

Police officers frisked Tillman and found an unloaded pistol in his jacket and a magazine clip in his pocket.  The officers testified at the evidentiary hearing that Tillman made no furtive gesture, did not resist, and gave his correct name.

Because of a 1993 drug conviction in Illinois, on March 3, 2000, Tillman was charged with Felon in Possession of Firearm pursuant to Minn. Stat. § 624.713, subd. 1(b) (Supp. 1999).  On June 23, 2000, Tillman sought to have the pistol and the magazine clip suppressed, but this motion was denied.

            Tillman entered a guilty plea and agreed to cooperate with the preparation of the pre-sentence investigation.  In return, the district court agreed to look into a dispositional departure from the mandatory minimum sentence required by the sentencing guidelines.  In addition, the district court agreed that if a dispositional departure did not ultimately make sense, because of the outcome of a drug charge pending against Tillman in Ramsey County, Tillman could withdraw his guilty plea. 

            On September 19, 2000, Tillman was sentenced to 27 months for possession of cocaine in Ramsey County.  Tillman decided against requesting probation for the gun charge, but he did ask the district court for a durational departure.  The state asked the district court to impose the mandatory minimum prison term of 60 months.  The district court imposed a 36-month prison term and ordered that the sentence be served concurrently with the 27-month sentence imposed by Ramsey County.  The district court listed the following factors as the compelling reasons for the downward departure:  (1) Tillman’s prior felonies were old; (2) the weapons charge was “out of character” for Tillman;  (3) he was not using or displaying the gun; (4) he had shown a desire to rehabilitate himself from his drug problems; (5) he had a steady job and (6) he had a long-standing girlfriend who spoke well of him.  The state appealed.

 

D E C I S I O N

 

            The state argues the reasons relied upon by the district court for the durational departure were not “substantial and compelling.”  The decision to depart from sentencing guidelines rests within the trial 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 court may sentence the defendant without regard to the mandatory minimum sentences * * * if the court finds substantial and compelling reasons to do so.”  Minn. Stat. § 609.11, subd. 8 (Supp. 1999).  “Substantial and compelling circumstances are those circumstances that make the facts of a particular case different from a typical case.”  State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985).  Even if the reasons given for the departure are inadequate or improper, we will affirm if there is sufficient evidence in the record to justify that departure.  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). 

            Some of the reasons listed by the district court for the downward departure from the mandatory minimum sentence do not provide a basis for departure under the guidelines.  First, the district court noted that Tillman has a “work record” and he has “worked at the same place for a number of years.”  But, the sentencing guidelines provide that a defendant’s employment history and employment at the time of offense and sentencing should not be considered as reasons for departing from the “presumptive sentence.”[1]  Minn. Sent. Guidelines II.D.1.c(2)-(4).

            Second, the district court noted that Tillman has a “significant other in the community of long-standing who speaks well of [him].”  The sentencing guidelines provide that marital status cannot be considered in departing from the guidelines, which would likewise exclude consideration of having a long-standing relationship.  Minn. Sent. Guidelines II.D.1.d(4).

            Third, the district court noted that Tillman was not using or displaying the gun at the time of the arrest.  The comments to the sentencing guidelines state “that departures from the guidelines should not be permitted for elements of alleged offender behavior not within the definition of the offense of conviction.”  Minn. Sent. Guidelines cmt. II.D.103.  The comments explain that “if an offender is convicted of simple robbery, a departure from the guidelines to increase the severity of the sentence should not be permitted because the offender possessed a firearm or used another dangerous weapon.”  Id.  While this example refers to an upward departure, we believe the comment also applies to a downward departure, which cannot be justified by favorable elements of a defendant’s behavior that are not within the definition of the crime.

            The district court also recited three additional reasons for departing from the sentencing guidelines:  (1) Tillman has “a drug problem, [and he has] talked to Probation about having the desire to change that;” (2) Tillman’s prior felonies were old and (3) his current gun-possession charge was out of character with his other crimes.  These reasons are not specifically listed as “mitigating factors” under the guidelines.  See Minn. Sent. Guidelines II.D.2.a.  Conversely, they are not listed as factors that should be excluded from consideration.  Thus, the court can rely on them so long as they are substantial and tend to excuse or mitigate the defendant’s culpability.  See Minn. Sent. Guidelines II.D.2.a(5) (stating that mitigating factors include other substantial grounds that excuse or mitigate the offender’s culpability); see also Minn. Sent. Guidelines cmt. II.D.201 (stating that the list of reasons which may be used for departure is non-exclusive). 

            Further, there are additional facts in the record, not mentioned by the trial court, that support a departure.  The Minnesota Supreme Court has held that if the reasons given for departure are “improper or inadequate, but there is sufficient evidence in the record to justify the departure, the departure will be affirmed.”  Williams, 361 N.W.2d at 844.

            Here, there is evidence in the record that Tillman shows remorse for his crime.  While remorse generally bears on the defendant’s amenability to probation and is most relevant to dispositional departure, this court has held that the district court can also consider the defendant’s remorse in making a downward durational departure from the guidelines.  See State v. Bauerly, 520 N.W.2d 760, 762-63 (Minn. App. 1994) (affirming district court's downward departure based in part on defendant's remorse), review denied (Minn. Oct. 27, 1994).  This court noted that “remorse or lack of remorse is most relevant in sentencing for crimes against the person or crimes affecting the safety of others.”  Id.  Possession of a firearm affects the safety of others and, therefore, Tillman’s remorse supports the departure.

            In addition, the police testified that Tillman was cooperative during the stop and did not attempt to escape.  This court has concluded that cooperation with the police is a proper factor to consider in making a downward durational departure from the guidelines.  See State v. Bartos, 1995 WL 333893, * 1 (Minn. App. June 6, 1995) (finding a downward durational departure proper where the defendant obeyed the police’s instruction to put down the gun). 

            Because the district court acted within its discretion in departing from the sentencing guidelines, and there was additional evidence in the record supporting the departure, we affirm.

            Affirmed.

 



[1] While here we are dealing with a mandatory sentence, not a presumptive sentence, the Sentencing Guidelines provides as follows:

When an offender has been convicted of an offense with a mandatory minimum sentence of one year and one day or more, the presumptive disposition is commitment to the Commissioner of Corrections. The presumptive duration of the prison sentence should be the mandatory minimum sentence according to statute or the duration of the prison sentence provided in the appropriate cell of the Sentencing Guidelines Grid, whichever is longer.

Minn. Sent. Guidelines II.E.  Thus, in these circumstances, the presumptive sentence is the mandatory sentence.