This opinion will be unpublished and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

C8-01-1931

 

State of Minnesota,

Respondent,

 

vs.

 

Rodney Anthony Brooks,

Appellant.

 

Filed August 13, 2002

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 00114132

 

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

 

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

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

 

            Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Kalitowski, Judge

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Rodney Anthony Brooks contends the district court abused its discretion by denying a downward departure following his conviction for making terroristic threats.  Appellant also raises several additional issues in his pro se supplemental brief.  We affirm.

D E C I S I O N

I.

District courts have no discretion to depart from the guidelines unless aggravating or mitigating factors are present.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  The sentences provided in the sentencing guidelines are presumed appropriate for every case, and only in the “rare case” will an imposition of the presumptive sentence be reversed.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); Minn. Sent. Guidelines II.D.  

            Appellant argues the district court abused its discretion by denying a downward departure, contending it did not give proper weight to appellant’s amenability to probation. We disagree.  The district court properly considered all the facts and rejected appellant’s request for a downward dispositional departure.

            Appellant argues he would be amenable to probation if it included a rehabilitation component.  But the quest for rehabilitation alone cannot be used as a basis for a downward departure.  State v. Law, 620 N.W.2d 562, 564 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).  Additionally, the district court noted that:  (1) appellant’s probation officer recommended that appellant receive the presumptive sentence; (2) appellant has a violent criminal history with numerous felony convictions; (3) probation has not worked in the past, as evidenced by appellant’s repeat convictions; and (4) appellant was diagnosed as having an antisocial personality.

            We conclude that this is not the “rare case” warranting a reversal of the district court’s imposition of the presumptive sentence.  When appellant requested the court to grant a continuance of sentencing to see if he could comply with court orders, he knew the continuance came with no guarantee regarding prison time.  The record indicates the court granted the continuance in part to allow for a psychiatric examination.  When the exam concluded that appellant had an antisocial personality, the court determined there was no basis for a downward departure.  We conclude that the district court did not abuse its discretion.

II.

            Appellant raised several claims in a pro se supplemental brief.  After careful review, we conclude that all of these claims are without merit. 

            Appellant argues he did not intend to terrorize the victim, but the district court found that having his hands around the victim’s neck and choking him while saying that he was going to kill him created a substantial risk of causing terror.  See Minn. Stat. § 609.713, subd. 1 (2000) (stating whoever threatens a crime of violence with reckless disregard of the risk of causing terror may be imprisoned for up to five years).  We agree.

            Appellant argues the state did not properly amend the complaint.  But the district court has the discretion to permit amendment of the complaint at any time before the verdict as long as the amendment does not include additional or different offenses, and the substantial rights of the defendant are not prejudiced.  Minn. R. Crim. Proc. 17.05; see also Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982).  We conclude that appellant’s rights were not prejudiced.

Appellant argues the district court erred by considering his prior criminal record during sentencing.  But appellant brought his criminal history into question when he requested a downward departure.  See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (noting that many factors, including defendant’s prior record, are considered when determining whether probation is appropriate).  We conclude that the district court properly considered appellant’s criminal background.

Affirmed.