This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Kenneth Jerome Tostenson,




Filed January 8, 2002


Anderson, Judge


Olmsted County District Court

File No. K1002768


Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 535 Park Street, Suite 500, St. Paul, MN  55103; and


Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 4th Street SE, Rochester, MN  55904 (for respondent)


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


            Considered and decided by Crippen, Presiding Judge, Willis, Judge and Anderson, Judge.


U N P U B L I S H E D  O P I N I O N



            Appellant pleaded guilty to first-degree arson, a violation of Minn. Stat. § 609.561, subd. 1 (2000).  Appellant’s plea agreement allowed him to move for a dispositional departure.  The district court denied appellant’s motion.  Because we find the district court did not abuse its discretion by refusing to depart dispositionally, we affirm.


            Appellant intentionally set fire to his home and pleaded guilty to first-degree arson.  In exchange for appellant’s guilty plea, the state dismissed another arson charge and a weapons-possession charge.   

            Appellant’s plea agreement allowed him to move for a dispositional departure.  Appellant’s motion for the dispositional departure was based on five factors: (1) victim request (appellant’s wife); (2) the plea agreement allowing the motion; (3) the possibility that appellant lacked substantial capacity for judgment when the offenses were committed; (4) appellant’s amenability to probation and treatment; and (5) support of family and friends. 

            The district court found that these factors were either not persuasive or were not present.  The district court reviewed each factor individually.  First, the district court found that his wife’s statement was influenced by other factors (including financial need) and that the statement should be given little weight. 

Second, the district court found that the plea agreement only stated that the state would not seek an upward dispositional departure.  The plea agreement did not state that a downward durational departure was appropriate.  Third, the court found that appellant did not suffer from a deficiency in judgment because appellant knew exactly what he was doing when he set the fire.  Fourth, the court found that appellant was not amenable to probation because he blamed others, including his 16-year-old stepdaughter, for his behavior.  The district court made no findings regarding appellant’s support from family and friends. 

First-degree arson is a level VII offense, and appellant had one criminal-history point.  Therefore, the district court sentenced appellant to the presumptive 58-month executed sentence.  See Minn. Sent. Guidelines §§ IV, V.


“[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 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).  The supreme court has stated that

it would be a rare case which would warrant reversal of the refusal to depart. As we stated in State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), the Guidelines state that when substantial and compelling circumstances are present, the judge “may” depart. This means that the trial court has broad discretion and that we generally will not interfere with the exercise of that discretion.


State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (emphasis added).  Even when mitigating factors are undoubtedly present, a sentencing court retains the discretion to deny a defendant’s motion for a downward dispositional departure.  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).  A district court may, in its discretion, depart dispositionally.

Numerous factors, 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, are relevant to a determination whether a defendant is particularly suitable to individualized treatment in a probationary setting.


State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). 

Here, appellant lists six factors that support his request for a dispositional departure: (1) his prior record; (2) his remorse; (3) his cooperation; (4) the existence of support from family and friends; (5) his willingness to accept treatment; and (6) his lack of substantial capacity for judgment at the time of the offense. 

            First, appellant’s prior record does not support a dispositional departure.  Appellant has three prior felony convictions and a 1992 misdemeanor arson conviction. 

Second, appellant is not remorseful.  He blames his stepdaughter for his station in life and said that if he had known she would testify against him at sentencing, he would have proceeded to trial to show she was a liar and thief. 

Third, respondent concedes that appellant was cooperative with one psychologist. 

Fourth, although it is true that appellant’s wife and his sister support him, his stepdaughter does not, and clearly requested the court to sentence appellant to the presumptive 58-month term.  Further, appellant’s wife’s support seems to stem from financial concerns, rather than from a real desire to have appellant at home. 

Fifth, appellant contends that the psychologist stated that appellant was a low-to-moderate risk to re-offend with treatment.  But his criminal record makes clear that appellant is a high risk for recidivism. 

Finally, appellant claims he lacked substantial capacity for judgment at the time of the offense.  This argument is wholly unsubstantiated.  The district court found that appellant did know what he was doing when he committed arson and that appellant knew the act was wrong, and the record supports this finding.

            Although some mitigating factors may be present, there is an impressive record of evidence supporting the district court’s finding that appellant was not entitled to a dispositional departure.  The district court was well within its discretion; this is not one of the “rare cases” requiring a reversal of a refusal to depart.