This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,







Justin Dean Nolder,




Filed ­­­November 27, 2001


Mulally, Judge*



Washington County District Court

File No. K5005453



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


Doug Johnson, Washington County Attorney, Eric C. Thole, Assistant County Attorney, Washington County Government Center, 14949 62nd Street North, Stillwater, MN 55082 (for appellant)


John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for respondent)



            Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N




Appellant state argues that the district court abused its discretion in departing dispositionally and staying respondent’s sentence.  Because we see no abuse of discretion, we affirm.



Respondent Justin Nolder, then 19, and two accomplices, dressed in black and wearing masks, entered a theater they had been planning to rob after having successfully robbed a hotel the previous week.  One accomplice had a knife, the other a handgun; respondent was armed with a tire iron.  The three men forced five employees of the theater, three adults and two minors, into an office and forced them to open a safe and hand over about $11,000.  Two of the employees were also made to empty their wallets.

Respondent and his accomplices were arrested; respondent was charged with three counts of aggravated robbery and two counts of second-degree assault.  He pleaded guilty to one count of aggravated robbery and one count of second-degree assault.

Respondent’s pre-sentence investigation listed both mitigating and aggravating factors.  Mitigating factors were respondent’s remorseful attitude, his youth, his amenability to probation and community-based treatment, advantage to the community of community-based sanctions rather than incarceration, respondent’s lack of prior record, his family support, and the unlikeliness of recidivism.  Aggravating factors included the multiple victims, sophistication in planning the crime, and failure to abandon the crime although there was an opportunity to do so.

The investigation summary stated that “A Commitment to Commissioner of Corrections serves no substantial benefit either to the community or to [respondent]” and recommended that respondent’s sentences be stayed and he be placed under probation for seven years and pay restitution. 

The district court followed the recommendation and imposed the presumptive 58-month sentence for aggravated robbery and the presumptive 36-month sentence for second-degree assault, but stayed execution of both, and placed respondent on probation.[1]  The court also imposed several conditions on respondent’s probation, among them that respondent pay significant restitution.  The state argues this was an abuse of discretion.



            The decision to depart from 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).  “This court recognizes the broad discretion of the trial court in sentencing matters and is loath to interfere.”  State v. Law, 620 N.W. 2d 562, 564 (Minn. App. 2000) (quotation omitted), review denied (Minn. Dec. 20, 2000).

            Appellant relies on Law to argue that amenability to probation is an insufficient basis for a stay.  Law reversed the stay of execution of the sentence of a defendant who had pleaded guilty to attempted second-degree murder after assaulting his estranged wife while she was holding two infants, telling her he was going to kill her, then strangling her to the point of unconsciousness.  Id. at 563-64.  Based on testimony indicating that the defendant was highly amenable to probation, the district court stayed execution of the sentence and placed him on probation for 20 years.  Id. at 564.  Holding that “the quest for rehabilitation alone cannot be used as a basis for downward departure,” id. at 565, and that “the severity of [Law’s] violent act dictates a different result,” id., this court reversed. 

  But Law is distinguishable on two grounds.  First, the violence of Law’s act of strangling his victim to the point of unconsciousness led to the reversal of the stay of sentence.  Id.   Here, respondent did not personally inflict violence, although his accomplices held a knife and a gun to the victims. The district court told respondent at the sentencing hearing, “You * * * did not act at that time as violently as they did.” 

Second, the stay in Law was based only on the defendant’s interests, not the victim’s.  Here, the district court considered both the financial and the psychological interests of the victims.  The district court told respondent:

[R]estitution * * * [is] a very large amount of money [$9,463] and I don’t see that money being returned unless we have people out working, making money to return it.  In other words, [the accomplices are] not going to be returning it from prison salaries.  * * *  I assume you’ll end up paying the lion’s share of it and that wouldn’t bother me at all.


See also State v. Malinski, 353 N.W.2d 207, 210 (Minn. App. 1984) (noting that permitting defendant to take a job made restitution possible), review denied (Minn. Oct. 16, 1984).  The district court also told respondent:

[Those who] were totally victimized by you and your friends, those people may have a better opportunity of coming out of this feeling less victimized if we give the restorative justice system a chance.   * * * I believe at least some of them will be willing to participate in what’s called victim offender conferencing * * * .


Given the absence of violence in respondent’s conduct and the district court’s concern with the victims’ interests as well as respondent’s interest, there was no abuse of  discretion in staying execution of respondent’s sentence.






* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.


[1] Respondent’s two accomplices were sentenced by different courts to 48 months each; their sentences were not stayed.