This opinion will be unpublished and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

C5-01-1272

 

State of Minnesota,

Appellant,

 

vs.

 

Jason Alan Mendez,

Respondent.

 

Filed December 18, 2001

Affirmed

Randall, Judge

 

Wright County District Court

File No. K5-99-2693

 

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

Tom N. Kelly, Wright County Attorney, Mark A. Erickson, Assistant County Attorney, 10 Second Street Northwest, Buffalo, MN 55313 (for appellant)

 

Cynthia J. Vermeulen, 11 North Seventh Avenue, Suite 100, St. Cloud, MN 56303 (for respondent)

 

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

U N P U B L I S H E D O P I N I O N

R. A. RANDALL, Judge

When sentencing an appellant for first-degree criminal sexual conduct, the district court imposed a downward dispositional departure. The court did not give notice of its intent to depart. The district court based the departure on appellant's low intelligence, the probation officer's recommendation, and appellant's amenability to probation and treatment. We affirm.

FACTS

On December 21, 2000, a jury convicted Jason Alan Mendez of first-degree criminal sexual conduct, in violation of Minn. Stat. 609.342, subd. 1(g) (1998), and first-degree criminal sexual conduct, in violation of Minn. Stat. 609.342, subd. 1(h)(iii) (1998). The conviction was based on the victim's testimony that between May and June 1999, Mendez had sexual intercourse with her on at least 20 occasions. At the time of the assaults, the victim was 13 years old and Mendez was 23 years old.

On December 28, 2000, Mendez's counsel filed a motion for departure from the sentencing guidelines. The district court did not give notice of its intention to consider a departure before the sentencing hearing.

The probation officer who prepared the presentencing investigation report recommended that the district court depart dispositionally downward from the sentencing guidelines. He recommended that the district court stay execution of the sentence and conditionally place Mendez on probation for 0 to 30 years provided that Mendez (1) serve 365 days in the county jail; (2) pay a $1,000 fine, $25 criminal assessment fee, and a $10 law library fee; (3) follow the recommendations of the sex-offender evaluation; (4) pay restitution; (5) have no contact with the victim or her family; (6) have no unsupervised contact with minor females; (7) use no alcohol or other mood-altering substances; (8) register as a sex offender; and (9) provide a DNA sample.

As part of the presentence investigation, Beth Patenaude-Jones, Ph.D., prepared a psychological evaluation report based on her examination of Mendez. The testing performed during the examination showed Mendez to have a high-moderate risk of reoffense. Dr. Patenaude-Jones recommended treatment in a structured adult sexual-offender program, but indicated that finding an appropriate program would be difficult because of Mendez's low intelligence level and the fact that he was in denial. Based on her second examination, Dr. Patenaude-Jones reported that Mendez performed at the borderline to low-average range of intelligence.

The sentencing guidelines provide a presumptive sentence of 86 months in prison, with a minimum term of imprisonment of 57-1/3 months, a maximum term of supervised release of 28-2/3 months, and an additional five-year period of conditional release. Mendez had a criminal history score of zero. The state opposed any departure from the guidelines.

The district court committed Mendez to imprisonment for 86 months but stayed execution of that sentence provided that Mendez: (1) serve one year in the Wright County Jail; (2) pay a $1,000 fine; (3) pay restitution as determined by the department of corrections by December 31, 2001; (4) obtain a sex-offender evaluation and follow the recommendations and treatment; (5) have no contact with the victim and her family or unsupervised contact with females under 18 years old; (6) not use or possess drugs or alcohol and submit to random testing; (7) register as a sex offender and provide a DNA sample; and (8) remain law-abiding. In its departure report, the district court indicated that the departure was based on Mendez's "low functioning," the recommendation contained in the presentencing report, and Mendez's amenability to probation and sex-offender treatment. The state contests the sentence, and this appeal followed.

D E C I S I O N

The state contends that the district court abused its discretion by making a dispositional departure from the sentencing guidelines, arguing that (1) the district court failed to state specific reasons for its departure; (2) there is insufficient evidence in the record to demonstrate a substantial and compelling basis to depart from the guidelines; and (3) the district court failed to give notice to the parties of its intent to consider such a departure.

A sentencing court "has broad discretion to depart only if aggravating or mitigating circumstances are present." State v. Best, 449 N.W.2d 426, 427 (Minn. 1989) (emphasis omitted). If such circumstances are present, an appellate court reviews a sentencing court's decision to depart for an abuse of discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). The district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves "substantial and compelling circumstances" to warrant a downward departure. State v. Donnay, 600 N.W.2d 471, 473 (Minn. App. 1999) (quoting State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981)), review denied (Minn. Nov. 17, 1999); see also Minn. Stat. 244.09, subd. 5(2), .10, subd. 2 (2000); Minn. Sent. Guidelines II.D. "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) (citation omitted). The district court may depart based on amenability to probation alone, Donnay, 600 N.W.2d at 473-74, or may depart based on the non-exclusive list of mitigating factors contained in the sentencing guidelines. Minn. Sent. Guidelines II.D.2. We generally do not interfere with the district court's decision to depart downward. Donnay, 600 N.W.2d at 473.

The state argues that the district court failed to state sufficient reasons for its departure. To the contrary, the record shows the district court based its departure on, among other things, amenability to probation, and that finding is sufficient to support a departure. E.g., State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).

Next, the state argues that there is insufficient evidence to support a departure. We examine the record to determine whether it supports the district court's stated reasons for a departure. State v. Sebasky, 547 N.W.2d 93, 100 (Minn. App. 1996), review denied (Minn. June 19, 1996). Even in cases where the district court did not give sufficient reasons for its findings, we will affirm a departure if the record supports one. See Donnay, 600 N.W.2d at 474 (finding record supported district court's determination that defendant was amenable to probation despite state's argument that district court failed to provide sufficient reasons for its determination).

Several factors are generally used to determine a defendant's amenability to probation, including the defendant's age, prior record, remorse, cooperation, attitude while in court, support of friends or family. Id. at 474. The factors are not applied mechanically, but on the individual facts of each case. Trog, 323 N.W.2d at 31.

Here, the record shows that Mendez committed the offenses at a young age; he was 23 years old at the time. He had a criminal history score of zero and no prior felonies. Mendez was cooperative while in court. He now lives with his mother and stepfather and has a support network of family and friends. Further, based on her examinations, Dr. Patenaude-Jones reported that Mendez needs and can obtain treatment in a structured adult sexual-offender program. The investigating probation officer recommended the sentence that the district court imposed. Based on his own investigation, he felt that a downward departure was warranted. His specific recommendation, although not binding on the court, does support the district court's decision. Based on factors supported by evidence in the record, we conclude that the district court did not abuse its discretion in imposing a downward dispositional departure.

Finally, the state argues that the district court erred by failing to give the parties notice that it was considering a departure from the sentencing guidelines. The Minnesota Rules of Criminal Procedure provide that the district court must notify counsel when it is considering a departure from the sentencing guidelines. Minn. R. Crim. P. 27.03, subd. 1(A)(4), (C). But if a party is not prejudiced by the district court's failure to give notice, we need not reverse the imposed sentence. See State v. Bock, 490 N.W.2d 116, 122 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992).

In Bock, we held that the convicted person was not prejudiced by the lack of actual notice by the district court because he had been put "on notice that the * * * court was considering departing from the sentencing guidelines." Id. We held that the defendant in Bock was given sufficient notice of the departure when (1) the state filed a motion for departure two months before the sentencing hearing, (2) the state reiterated its request for departure when defense counsel moved for sentencing in accordance with the presentence investigation, (3) the defendant did not object to the lack of notice at the sentencing hearing, and (4) the defendant did not request a continuance for preparation for the sentencing hearing. Id.

Here, the district court did not provide actual notice to the parties of its intent to consider a departure from the sentencing guidelines. But, as in Bock,the state in fact had knowledge of the court's intent to consider departure: (1) Mendez filed a motion for a downward departure on December 28, 2000, more than four months before the May 15, 2001, sentencing hearing; (2) the state had a copy of the presentence investigation report recommending a downward departure; (3) Mendez reiterated his request for a departure at the sentencing hearing; (4) the state did not object to lack of notice at the hearing; and (5) the state did not request a continuance to prepare for the hearing. At the hearing, the state was prepared to go forward and opposed Mendez's motion for a downward departure with a vigorous argument regarding mental impairment and a specific discussion concerning the findings of the presentencing and psychological reports. The factual circumstances are similar to those in Bock.

We conclude the state was prepared to oppose the motion for a downward departure and was not prejudiced by the district court's failure to notify the parties of its intention to consider a departure.

Affirmed.