This opinion will be unpublished and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
State of Minnesota,
Jeffrey Thomas Ballek,
Filed May 7, 2002
Clearwater County District Court
File No. K0-00-400
Mike Hatch, Attorney General, 525 Park Street, Suite 600, St. Paul, MN 55155-6102; and
Kip O. Fontaine, Clearwater County Attorney, Jeanine R. Brand, Assistant County Attorney, 213 Main Avenue North, Dept. 301, Bagley, MN 56621 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.
On appeal of his sentence for two counts of first-degree criminal sexual conduct, appellant argues that the district court abused its discretion by refusing to grant him a dispositional departure because he voluntarily reported his sexual abuse, and he presented evidence that he is particularly amenable to probation. Because the district court did not abuse its discretion by declining to depart and imposing the presumptive sentence, we affirm.
Appellant Jeffrey Thomas Ballek contacted authorities and confessed that he had been sexually abusing his two oldest daughters, A.B. and E.B., one or two times per month for the past three years. At the time he turned himself in, A.B. was approximately nine years old, and E.B. was approximately eleven years old. Ballek explained that although he had tried many times to stop molesting his daughters, he had not been successful.
The first time Ballek tried to stop, he confessed to members of his church group, who put in place an accountability plan, and to his wife, who created another plan to prevent him from being alone with the girls. But within two months of the plans being put in place, Ballek began molesting his daughters again. After his wife discovered he had recommenced the behavior, she put in place another plan to prevent him from being alone with the girls, and Ballek stopped sexually abusing his daughters for a short time. After Ballek had joined a new church for approximately one year, he again confessed to his wife and his new pastor that he had started sexually abusing his daughters again. Ballek’s pastor suggested that Ballek turn himself in to authorities and he did.
Based on Ballek’s confession, the state charged him with eight counts of criminal sexual conduct, occurring in 1998, 1999, and 2000. Ballek pleaded guilty to two counts of first-degree criminal sexual conduct occurring before August 1, 2000, and the state agreed to remain silent at sentencing. Ballek filed a motion for dispositional departure and, at his sentencing, seven witnesses testified in support of Ballek’s motion. The district court denied Ballek’s motion and imposed a 172-month presumptive sentence. This appeal followed.
Ballek argues the district court abused its discretion by refusing to grant him a downward dispositional departure because the circumstances indicate he is particularly amenable to probation.
“[A district] 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); see also State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996) (stating that the sentencing guidelines provide a nonexclusive list of mitigating factors); Minn. Sent. Guidelines II.D.2.a. (5) (stating that a court may depart when “substantial grounds exist which tend to excuse or mitigate the offender’s culpability, although not amounting to a defense”). If any factors that would justify a departure are present, the district court must deliberately consider those factors. See State v. Curtiss, 353 N.W.2d 262, 263-64 (Minn. App. 1984) (remanding for resentencing where the record indicated the district court failed to consider reasons for departure). If the district court determines that such factors are present, the decision to depart from the sentencing guidelines rests within its discretion and an appellate court will not reverse absent a clear abuse of that discretion. Givens, 544 N.W.2d at 776. An appellate court will rarely reverse a district court’s refusal to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981)
In State v. Trog, the supreme court set forth a nonexclusive list of factors to consider when determining whether a defendant is particularly suited to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). These 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.” Id.
Ballek asserts that the evidence shows he is particularly amenable to probation because he (1) is 35 years old, (2) has no prior criminal record, (3) is remorseful and concerned for his daughters’ health and welfare, (4) voluntarily reported his sexual abuse, and (5) has a strong support network. He notes that his support network is composed of his pastor, church members and his employer, all of whom would support him on probation and report any violations of probation.
The record indicates that the district court considered these factors, but found other evidence more compelling. See Curtiss, 353 N.W. 2d at 263. The court considered information contained in the Pre-Sentence Investigation Report, a sex-offender evaluation and the results of a polygraph test Ballek voluntarily took. These documents provided information that (1) Ballek’s preference for “girls of about the age of [eight] puts him within the range of a diagnosis for pedophilia which can be a very treatment resistant diagnosis,” and which indicates young girls outside his family could be at risk, (2) Ballek may have responded deceptively when he answered questions regarding sexual contact with other 4 to 15 year olds, (3) Ballek turned himself in because he could no longer avoid detection, and not because he was so concerned for his daughters’ welfare, (4) Ballek’s stated reasons for starting to sexually molest his daughters—because of sexual issues with his wife—indicate he does not understand the inappropriateness of his behavior, and (5) Ballek’s placement of blame on his first church group for failing to hold him accountable indicates he does not accept full responsibility for his behavior. Furthermore, as the district court noted, Ballek had developed a pattern of confessing and then reoffending, despite attempts by family and community members to deter his behavior.
Because the record supports the district court’s finding that Ballek is not amenable to probation, we conclude that it did not abuse its discretion by refusing to grant any downward dispositional departure from the presumptive sentence.