This opinion will be unpublished and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

C9-02-250

 

State of Minnesota,

Appellant,

 

v.

 

Michael Wayne Fisher,

Respondent.

 

Filed July 2, 2002

Affirmed

Randall, Judge

 

Beltrami County District Court

File No. K3-01-1316

 

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

 

Timothy R. Faver, Beltrami County Attorney, Eric Schieferdecker, Assistant County Attorney, 619 Beltrami Avenue Northwest, Suite 40, Bemidji, MN 56001-3071 (for appellant)

 

Tim Aldrich, 415 Southeast 13th Street, Suite 100, Grand Rapids, MN 55744 (for respondent)

 

Considered and decided by Randall, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.*


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

R. A. RANDALL, Judge

Appellant, State of Minnesota, challenges a district court's downward departure from the Minnesota Sentencing Guidelines, arguing that the departure is not supported by the record. We find that the district court did not abuse its discretion nor err as a matter of law. We affirm.

FACTS

Respondent, Michael Wayne Fisher, was charged with one count first-degree burglary and second-degree assault. In August 2001, respondent and two other individuals were drinking and then went looking for a party. At approximately 3 AM, respondent and two other individuals entered the residence of Jimmy Harrison where Kenneth Hough was an overnight guest. When respondent tried to stop one of his friends from poking Harrison, Harrison punched respondent, and respondent retaliated by hitting Harrison. The situation escalated and respondent and another individual hit Hough with a tire iron, went into a back bedroom, and hit, kicked, and punched Harrison's roommate. Respondent and the others then fled the scene.

Following a jury trial, respondent was found guilty of first-degree burglary and not guilty on the remaining counts. A pre-sentence investigation report stated that respondent's criminal history score is 1, which results in a presumptive commitment of 58 months, with two-thirds served in prison and one-third on supervised release. The PSI recommended that respondent be committed to the department of corrections for 58 months.

The state moved for an upward durational departure requesting that respondent receive 72 months in prison, one and one-half times the presumptive sentence of 48 months, based on the fact that respondent committed the crime as part of a group of three or more. The defense moved for a downward dispositional departure arguing that respondent's age, lack of record since he was a juvenile, and his family life supported a downward departure. Following a sentencing hearing the district court sentenced respondent to 58 months in prison, but stayed execution of the sentence, a downward dispositional departure, and as part of appellant's probation, required him to serve one year in jail, with credit for time served. The state appeals the sentence imposed on respondent.

D E C I S I O N

The state argues that the district court abused its discretion by making a downward dispositional departure from the sentencing guidelines. The state asserts that the district court failed to state specific reasons for its departure and that there is insufficient evidence in the record to demonstrate a substantial and compelling basis to depart from the guidelines.

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). A district court may depart based on amenability to probation alone or may depart based on the non-exclusive list of mitigating factors contained in the sentencing guidelines. State v. Donnay, 600 N.W.2d 471, 473-74 (Minn. App. 1999); Minn. Sent. Guidelines II.D.2. An appellate court generally does not interfere with the district court's decision to depart downward. Id. at 473.

We disagree with the state's argument that there is insufficient evidence to support a downward departure. The record supports the district court's sentence. An appellate court examines 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). 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). At the sentencing hearing respondent's defense counsel stated, "[W]e believe there [are] facts that would warrant that the stay be granted and execution not be carried out and probation be issued for Mr. Fisher." The court then asked defense counsel twice how much probation time respondent should receive. When considering a dispositional departure, a sentencing court may focus on the defendant as an individual and whether the presumptive sentence would be best for him and for society. State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). The defense counsel put in the record his list of mitigating factors to support respondent's argument for a dispositional departure.

The record shows that the district court, when it sentenced respondent and placed him on supervised probation for a period of zero to five years, did so under certain conditions.

In addition to a term of imprisonment in the county jail, Respondent must receive an alcohol assessment, follow the recommendations from that assessment, and not consume alcohol. The district court determined that respondent was amenable to treatment, ordered an alcohol assessment, and placed respondent on probation. See e.g., State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (concluding that the facts were sufficient to support a finding).

Generally, several factors are used to determine a defendant's amenability to probation, including the defendant's age, prior record, remorse, cooperation, attitude while in court, as well as the support from friends or family. Donnay, 600 N.W.2d at 474. The factors are not applied mechanically, but on the individual facts of each case. Trog, 323 N.W.2d at 31. The record reflects respondent's two delinquent acts when he was 14 years old. Respondent had a juvenile record but the most recent offense was over seven years ago. Respondent has a stable home life, he is the father of two children, and is the caretaker for the oldest child. His family gives him positive support.

Under the sentence imposed by the district court respondent will have to serve time in jail. The district court, as part of probation, ordered that he serve a year in jail, minus credit for time served.

We conclude that the district court did not err in imposing a downward departure. Given respondent's age, his family life, prior record, and the totality of the circumstances, the district court did not abuse its discretion when it found respondent was amenable to probation and, thus, imposed a dispositional departure.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.