This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Hennepin County District Court
File No. 00077890
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, Cindy L. Hanneken, Certified Student Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, Minnesota Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.
Appellant Otis T. Williams challenges his sentences for burglary in the third degree and possession of burglary tools. Williams argues that the sentencing court abused its discretion by denying him a downward dispositional departure from the presumptive sentencing guidelines because (1) he lacked substantial capacity for judgment when the offense was committed; (2) substantial grounds mitigating his culpability existed; and (3) he was willing to accept treatment. Because the sentencing court did not abuse its discretion by imposing the presumptive sentences, we affirm.
Williams waived his right to a jury trial and submitted his case to the court on a stipulated record. The record reveals that police responded to a report that an African-American male was “attempting to twist the door knob off the back door of an apartment building.” When the officers arrived at the scene, they found Williams with two bicycles, two black canvas bags, two screwdrivers, and a pair of pliers. Williams told one of the officers that he owned the bicycles and the canvas bags and that he lived in the house. But he later told the officers that it was his brother’s home.
The victim, T.C., arrived at the scene and told the officers that the bicycles and the canvas bags belonged to her and had been in her locked garage. One of the screwdrivers in Williams’s possession belonged to T.C. The officers found pry marks next to T.C.’s garage door lock.
Williams was charged with third-degree burglary andpossession ofburglary or theft tools. Minn. Stat. § 609.582, subd. 3 (2000); Minn. Stat. § 609.59(2000). The district court found Williams guilty of both charges. At thesentencing hearing, Williams moved for a downward dispositional departure to probation in a treatment facility. Thesentencing court denied the motion and sentenced him to concurrent sentences of 30 months for third-degree burglary and 23 months for possession of burglary tools. This appeal followed.
“[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.” State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted). The decision to depart from the sentencing guidelines rests within the sentencing 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 sentencing 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. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). In justifying a dispositional departure, “the [sentencing] court can focus more on the defendant as an individual and on whether the presumptive sentence would be best for him and society.” State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).
In determining whether a departure is warranted, a court may consider mitigating factors such as (1) whether the “offender, because of * * * mental impairment, lacked substantial capacity for judgment when the offense was committed” and (2) whether “[o]ther substantial grounds exist which tend to excuse or mitigate the offender’s culpability.” Minn. Sent. Guidelines II.D.2.a(3), (5). In determining whether a defendant is particularly suitable to individualized treatment in a probationary setting, a court may consider 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). It is only in rare cases that an appellate court should reverse a sentencing court’s refusal to depart from sentencing guidelines. Kindem, 313 N.W.2d at 7.
Williams argues that substantial and compelling circumstances require a departure in his case. Court psychologist Dr. Seymour Gross interviewed and tested Williams. Dr. Gross’s report and testimony show that Williams has a limited intellectual capacity, is mildly retarded, has a below-first-grade reading level, and was sexually abused as a child. Dr. Gross testified that the ideal situation for Williams would be a “community-based group home with lots of supportive services” and the opportunity to have a therapist help him. The Public Defender’s dispositional advisor informed the court that a treatment program was available to provide the services recommended by Dr. Gross. Williams told the court that he thought it would not be a “bad idea” for him to go to treatment.
The pre-sentence investigation report (PSI) recommended sentencing pursuant to the guidelines because no substantial or compelling reasons to depart existed. The PSI noted (1) Williams’s lengthy criminal history of property felonies, a drug-related felony and misdemeanor offenses (his criminal history score is six); (2) Williams’s failure to follow through with plans to resolve his chemical dependency and illiteracy problems despite having long ago identified those problems; (3) Williams’s past community-based treatment failures due to absconding after primary treatment or failing to follow through with aftercare plans; and (4) an unamenability to probation demonstrated by revocation of probation and execution of sentence in four prior felony convictions. The PSI also noted the availability of treatment for Williams while he is in custody.
The sentencing court stated that, while it believed everything Dr. Gross told it, the recommendations to deal with Williams’s problems outside of prison had been tried in the past: “I’m not willing to keep trying out of prison, and I believe that I have to send you to prison * * * .” The sentencing court noted that there had been “too many crimes in the past” and that the court trusted the prison to insure Williams’s safety because Williams had been there before and the prison knew his special needs.
This case is not one of those rare cases requiring the reversal of the sentencing court’s decision not to depart from the presumptive sentences. Williams’s history of failure in community-based programs supports the sentencing court’s imposition of the presumptive sentences. Williams’s limited intellectual capacity and currently expressed interest in treatment do not mandate a dispositional departure. See Kindem, 313 N.W.2d at 8 (stating that the district court has discretion to depart downward or not to depart downward when “arguments for departing downward” exist and “reasons for not” departing exist); State v. Evenson, 554 N.W.2d 409, 412 (Minn. App. 1996) (stating that even exceptional amenability to treatment does not dictate reversal of presumptive sentence), review denied (Minn. Oct. 29, 1996).
The sentencing court did not abuse its discretion in determining that Williams should be sentenced to the presumptive sentences.