This opinion will be unpublished and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
State of Minnesota,
Jaimiah Lamar Irby,
Filed June 26, 2001
Reversed and remanded
Hennepin County District Court
File No. 0040553
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, David Craig Brown, Assistant County Attorney, C-2000 Government Center, 300 S. Sixth Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Peter W. Gorman, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Foley, Judge.
In this criminal sentencing appeal, the state challenges the imposition of an 18-month sentence that constituted a downward durational departure from the presumptive 48-month sentence. Because we conclude the district court abused its discretion in imposing the sentence, we reverse and remand for sentencing consistent with this opinion.
At approximately 8:00 p.m. on April 17, 2000, Eugene Neuman was walking in his south Minneapolis neighborhood when four men approached him. One of the men asked Neuman for the time while the other three surrounded him. Neuman could not flee because there was a very high embankment behind him, and the four men prevented his escape in any other direction. When Neuman looked at his watch, one of the men pointed a gun at his chest and demanded that he give him his money. Neuman, who was extremely frightened, gave the man approximately $140.
After receiving the money, the four men fled west and were almost hit by a car on Cedar Avenue. The three women in the car stopped to assist Neuman and at his request called the police on a cellular phone. After calling the police, Neuman and the women got in the car and attempted to locate the assailants. By this time, the assailants had split up. However, Neuman and the women spotted one of the assailants and followed him as he walked south on Cedar Avenue and then west on 44th Street. This individual was later arrested.
Sergeant Stenerson of the Minneapolis Police Department was assigned to investigate the case. The investigation eventually led him to respondent Jaimiah Irby. During a phone conversation with Stenerson, Irby admitted to being present during the commission of the crime, doing the talking, holding the gun, and splitting the money with a friend. In addition, Irby told Stenerson he had used an unloaded BB gun, which was recovered from its hiding spot without Irby’s aid, to commit the crime. Irby’s reason for using such a weapon was that the consequences might be less severe. Irby also indicated that he and the three other men had spent approximately two hours looking for a suitable victim; they were looking for a person alone on a quiet street without a lot of traffic. Finally, Irby told Stenerson that the reason for committing the robbery was to prove that he was “down with their set.” In other words, Irby committed the crime to win peer approval.
Irby was charged on May 16, 2000, with aggravated robbery in the first degree pursuant to Minn. Stat. § 609.245, subd. 1 (2000). On October 25, 2000, Irby pleaded guilty to this charge. Based on his criminal history score of 0 and aggravated robbery being a severity level VII offense, the presumptive sentence under the sentencing guidelines was 48 months.
At the sentencing hearing on December 11, 2000, Irby’s counsel argued for either a dispositional departure based on a myriad of factors or a durational departure based on the less-serious nature of the offense. The prosecution opposed departure, stating no mitigating factors existed warranting a downward departure. The district court imposed an 18-month sentence, a downward durational departure from the 48-month presumptive sentence, listing the following factors: (1) Irby’s cooperation with police; (2) his amenability to probation; (3) his use of a BB gun instead of a real gun; (4) his status as a follower; (5) the support of family and friends; (6) his lack of criminal record; (7) his entry of a guilty plea; and (8) his young age.
The district court may depart from the presumptive sentence if the individual case involves substantial and compelling circumstances. Minn. Sent. Guidelines II.D.; State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). “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). A downward durational departure is justified if the defendant’s conduct is “significantly * * * less serious than that typically involved in the commission of the crime.” State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984); see Minn. Sent. Guidelines II.D.2.a.(5) (nonexclusive list of mitigating factors supporting durational departure includes “substantial grounds * * * which tend to excuse or mitigate the offender’s culpability, although not amounting to a defense”). Once the district court decides to depart from the sentencing guidelines, the decision will not be reversed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996); State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).
The state argues that the eight factors cited by the district court to support its decision to depart do not amount to substantial and compelling circumstances that would make Irby’s actions less serious than the typical aggravated robbery. We agree.
Of the eight factors listed by the district court, only one directly relates to Irby’s culpability, and it does not mitigate the offense. Irby’s use of an unloaded BB gun to commit the crime does not make him less culpable than the typical person convicted of aggravated robbery in the first degree who uses a real gun. The criminal statute provides that a person commits an aggravated robbery when he commits a robbery while employing “any article used or fashioned in a manner to lead the victim to believe it to be dangerous.” Minn. Stat. § 609.245, subd. 1 (2000) (emphasis added). Thus, the legislature was concerned with the victim’s perception of the weapon, not the actual capabilities of the weapon.
Here, it is undisputed that Irby’s BB gun closely resembled a large bore .45-caliber semi-automatic handgun. Neuman believed the gun was real, and testified that he was afraid for his life, not knowing if he was going to live or die. Therefore, based on the clear and unambiguous language of the criminal statute, the sentencing guidelines, and Neuman’s perceptions of the event, the district court erroneously relied on Irby’s use of an unloaded BB gun as a mitigating factor.
The district court cited seven other factors in support of its decision. The state argues, however, that all of these factors are either directly or indirectly related to his amenability to probation and thus they are relevant only to a dispositional departure. We agree.
In general, “[t]he mitigating and aggravating factors listed in section II.D of the Guidelines focus primarily on the degree of a defendant’s culpability.” State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). “However, when justifying only a dispositional departure, the trial court can focus more on the defendant as an individual and on whether the presumptive sentence would be best for him and for society.” Id. (emphasis in original). The Minnesota Supreme Court has held that there are numerous factors to consider when granting a dispositional departure “including the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). In this case, the district court cited seven reasons that focus on Irby, the individual: (1) his cooperation with the police; (2) his amenability to probation; (3) his being a follower; (4) the support of his family and friends; (5) his lack of a prior record; (6) his entering a guilty plea; and (7) his young age. Thus, the district court relied at least partially on the Trog dispositional factors in granting a durational departure.
Durational departures are logically separate from dispositional departures. State v. Herrmann, 479 N.W.2d 724, 728 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992); Minn. Sent. Guidelines, cmt. II.D.02. In general, the Trog factors, including a defendant’s amenability to probation, should not be used to support a durational departure. State v. VanZee, 547 N.W.2d 387, 393 (Minn. App. 1996), review denied (Minn. July 10, 1996). Thus, the district court abused its discretion when it cited dispositional factors in support of a durational departure. The unpublished opinion Irby cites is not precedential authority and includes factors not present in this case.
While the eight factors listed by the district court in this case are either improper or inadequate to justify a downward durational departure, we may affirm if there is sufficient other evidence in the record to justify the departure. See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). Irby argues that his remorse and his cooperation with police are sufficient to support the downward durational departure. We disagree.
Generally, remorse or the lack of it bears on the defendant’s amenability to probation and is relevant only to a dispositional departure. See State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). However, remorse is relevant to a durational departure when it “relates back” to the seriousness of the offense. State v. McGee, 347 N.W.2d 802, 806 n.1 (Minn. 1984); see also State v. Bauerly, 520 N.W.2d 760 (Minn. App. 1994), review denied (Minn. Oct 27, 1994). Although Irby apologized to the victim during the sentencing proceeding and showed some remorse, he also tried to blame others for his actions and attempted to minimize his behavior. We agree with the state that remorse is not a factor in this case relating back to the seriousness of the offense. We also conclude that Irby’s cooperation with police, while commendable, occurred only after suspicion had focused on Irby, and does not mitigate the offense.
Because the use of an unloaded BB gun did not make the commission of the crime less serious than the typical aggravated robbery, and left only dispositional departure factors to support the durational departure, and because there is no other evidence in the record to support the departure, the district court’s imposition of a downward durational departure was an abuse of discretion. Therefore, we reverse and remand for resentencing consistent with this opinion.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.