This opinion will be unpublished and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

C9-01-2117

 

Kevin Jerome Tate,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 23, 2002

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. 00084731

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106;  and

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487  (for respondent)

 

            Considered and decided by R.A. Randall, Presiding Judge, Lansing, Judge, and

 

Klaphake, Judge.

 

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

 

R.A. RANDALL, Judge

            Appellant challenges his sentence for felon in possession of a firearm, arguing that the sentencing court abused its discretion in imposing an executed sentence that departed downward in duration but not in disposition when the court made findings that could have supported a downward dispositional departure.  We affirm.

FACTS

            On August 15, 2000, appellant Kevin Tate had been drinking and got into a fight with his girlfriend, Shannon Kochendorfer.  He became physically abusive, and Kochendorfer left the apartment.  Shortly thereafter Kochendorfer returned to the apartment with a group of people.  Appellant heard her and the others knocking to be let in but did not recognize the voices of the other people with Kochendorfer.  Before opening the door, appellant grabbed a gun owned by and registered to Kochendorfer.  Once he opened the door and saw police officers with Kochendorfer, he immediately dropped the gun and complied with all their orders. 

Appellant was arrested for domestic assault.  The police later discovered that appellant was convicted of aggravated robbery in 1989 and, as a result, is prohibited from possessing a handgun.[1]  Accordingly, appellant was charged with and pleaded guilty to felon in possession of a firearm under Minn. Stat. § 624.731, subd.1(b) (2000).  During his plea negotiations no agreement regarding his sentence was reached.  At the sentencing hearing the court departed durationally from the mandatory-minimum sentence of 60 months and sentenced appellant to 40 months in prison.   The court stated that it also considered departing dispositionally by placing appellant on probation.  It made a detailed record of all the mitigating circumstances that supported a dispositional departure but ultimately decided based on the complete record, including information from appellant's prior felony, not to place appellant on straight probation but to give him a reduced prison sentence.  Appellant now challenges the sentencing court's decision not to dispositionally depart downward.

D E C I S I O N

Appellant argues the sentencing court abused its discretion in imposing an executed sentence that included a downward durational departure but not a downward dispositional departure.  Appellant argues that, despite the sentencing court's findings that mitigating factors existed to justify departing dispositionally, the court arbitrarily imposed a prison sentence instead of probation.

            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).  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).  Even where a sentencing court appropriately exercised its discretion, such discretion is not boundless and this court will interfere where it has "a strong feeling the sentence is inappropriate to the case."  State v. Law, 620 N.W.2d 562, 565 (Minn. App. 2000) (quotation omitted), review denied (Minn. Dec. 20, 2000).

            When 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 for society."  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).  A sentencing court may dispositionally depart from the presumptive sentence if there are substantial and compelling circumstances.  State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), overruled on other grounds by State v. Givens, 544 N.W.2d 643, 647 (Minn. 1981).  Several factors include:

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).

Appellant's previous felony conviction stemmed from an aggravated robbery where the victim was shot and killed.  Appellant, however, was not at the scene of this crime and did not personally use or possess a gun in the commission of the crime. Therefore the sentencing court had the discretion to depart from the mandatory minimum sentence.  See Minn. Stat. § 609.11, subd. 8(a), (b) (2000) (stating on state's motion or its own motion, the court may sentence defendant without regard to mandatory minimum sentence if substantial and compelling reasons exist unless defendant was previously convicted of offenses listed in statute (including aggravated robbery) in which defendant used or possessed a firearm or other dangerous weapon). 

A conviction of felon in possession of a firearm carries a presumptive sentence of "not less than five years."  Minn. Stat. § 609.11, subd. 5(b) (2000).  The sentencing court made a thoughtful analysis and chose a downward durational departure of 40 months because the presumptive sentence was, in the sentencing court's view, wholly disproportionate to appellant's situation. 

Appellant correctly asserts that the sentencing court listed several factors that could have supported sentencing appellant to probation rather than prison.  The mitigating factors could have related to either a durational or a dispositional departure.  For example, the court cited the facts that appellant may not have ever touched his girlfriend's gun before he had it in hand at the time of his arrest, appellant was not fully awake or fully sober when he took his girlfriend's gun and answered the door with it, appellant dropped the gun as soon as the police told him to do so, appellant is willing to accept chemical-dependency treatment, and appellant has a support system in his girlfriend and young son.

But appellant is incorrect in his assertion that the sentencing court "mistakenly believed it had no authority" to depart from the statutory mandatory minimum sentence.  Contrary to appellant's assertion, the court did not suggest it lacked authority to dispositionally depart from the statutory minimum sentence.  Instead, the court grappled with whether the mitigating factors in this case justified a downward dispositional departure.  Specifically the court stated:

I think that there are some mitigating circumstances that do justify a durational departure from the sentencing guidelines, but based upon the complete record of this case, including the supplement that I got from the Department of Court Services, I just can't bring myself to put the defendant on probation. 

 

A sentencing court is allowed discretion to depart if mitigating factors are present.  It does not follow that if mitigating factors are present, the court must depart.  The rule states that the court may depart.  The record demonstrates the sentencing court thoroughly and thoughtfully reviewed the circumstances of appellant's case before making its decision to shorten appellant's prison time but not to utilize straight probation.  This discussion does not demonstrate an arbitrary exercise of authority, but rather demonstrates a considered and rational approach by the judge to his authority to sentence.  Like Diogenes, the court, seeking the perfect sentence, split the baby and opted for a shorter sentence (downward durational departure) rather than a downward dispositional departure.

The sentence was not exactly to appellant's liking, but the record does not come close to supporting an inference that the sentencing court was arbitrary when it declined to impose a downward dispositional departure.

            Affirmed.

 

           



[1] The initial complaint indicated a conviction in Arkansas of felony burglary on February 28, 1989.  The plea hearing transcript indicates the 1989 conviction to be for felony aggravated robbery.  There is no issue.  The parties agree that appellant has the necessary predicate felony for his conviction.