This opinion will be unpublished and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
Ronald A. Butler,
State of Minnesota,
Filed September 17, 2002
Gordon W. Shumaker, Judge
Ramsey County District Court
File No. K8012430
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State 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; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant Ronald Butler challenges the district court’s order denying his motion for a downward dispositional departure from the presumptive sentence under the sentencing guidelines on the ground that he is amenable to probation. We affirm.
On July 10, 2001, appellant Ronald Butler was charged with criminal sexual conduct in the first degree, in violation of Minn. Stat. § 609.342, subd. 1(a) (2000), for sexually assaulting his girlfriend’s 12-year-old daughter.
Butler entered a plea agreement with the state under which he agreed that the presumptive 144-month executed sentence would be imposed.
At sentencing, Butler moved for a downward dispositional departure, asking that he be placed on probation so that he could receive sex-offender treatment in the community. The district court denied his motion. Butler argues that the district court abused its discretion in not departing, contending that he is amenable to probation.
The district court has broad discretion in determining whether to depart from the sentencing guidelines, and this court “generally will not interfere with the exercise of that discretion.” State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). “[I]t would be a rare case which would warrant reversal of the refusal to depart.” Id.
A departure from the sentencing guidelines must be justified by substantial and compelling circumstances. Id. To justify a downward departure, there must be circumstances that tend to excuse or mitigate an offender’s culpability. State v. Esparza, 367 N.W.2d 619, 621 (Minn. App. 1985).
For felony sentences, the Minnesota Sentencing Guidelines circumscribe the district court’s discretion by requiring that the court impose the presumptive sentence unless the court expressly identifies substantial and compelling reasons for imposing a different sentence:
The sentences provided in the Sentencing Guidelines Grid are presumed to be appropriate for every case. The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances. When such circumstances are present, the judge may depart from the presumptive sentence and stay or impose any sentence authorized by law.
Minn. Sent. Guidelines II.D.
The supreme court expanded the concept of substantial and compelling circumstances when it stated that “a defendant’s particular amenability to individualized treatment in a probationary setting will justify departure.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Furthermore, the supreme court in Trog said that, in determining particular suitability to “individualized treatment in a probationary setting,” the district court may consider the defendant’s age, prior record, remorse, cooperation, attitude in court, and the support of friends and family. Id.
Here, the district court found that Butler was not amenable to probation and treatment and therefore refused to depart. As support for its decision, the court stated:
This is your second criminal sexual conduct case based on the evaluation that I have been provided. I can’t find you are amenable to treatment nor can I find any compelling circumstances that would justify me in not imposing the guideline sentence of 144 months. In fact, there are circumstances, that if looked at carefully, would suggest that maybe I should be giving greater than 144 months.
But I will honor your plea negotiation and commit you to the commissioner of corrections, first finding you are guilty of the charge to which you plead guilty. And pursuant to that plea, I adjudicate you and now sentence you to the commissioner of corrections for a term not to exceed 144 months.
However, Butler argues that mitigating factors do exist to justify a downward departure.
1. Mitigating Factors
Butler asserts that the Trogfactors apply to his case. He is a 43-year-old man who has committed only one prior misdemeanor and one prior felony, which is more than 15 years old. He maintains that he has expressed remorse about this crime. He has apologized to the victim throughout the proceedings and feels he has accepted responsibility for his actions as shown by his guilty plea. He was respectful and cooperative in court. Finally, he argues that he has the support of his girlfriend, the victim’s mother.
In Trog, many factors supported the court’s decision to depart from the sentencing guidelines. The presentence investigation report was favorable and showed, as the prosecutor admitted at the time of sentencing, that, with the exception of the incident in question, the defendant apparently had been an “outstanding citizen.” Id. at 29. He had no prior involvement with the police, even as a juvenile, had done well in school, and had an excellent work record. Id. The report also showed that the defendant, who was intoxicated at the time of the crime, had cooperated with police and had been shaken by the incident and was extremely contrite. Id. at 29. The supreme court held that the district court was justified in staying execution of a defendant’s sentence because of the defendant’s youth, the fact that he had no prior criminal record, his remorse, his cooperation, his respectful attitude in court, and the strong support shown him by friends and family. Id. at 31.
Butler’s personal profile is different. Butler is not a “youth,” as was Trog. Butler also has a prior conviction of criminal sexual conduct. He has expressed remorse, but he still maintains that the minor victim was a willing participant. Additionally, the probation officer concluded that Butler does not appear amenable to treatment at this time. Aside from the victim’s mother, Butler does not have a support system within his immediate family that will help him stabilize his life. These factors distinguish Butler from Trog and provide a basis for concluding that the district court properly exercised its discretion not to depart from the presumptive sentence.
2. Aggravating Circumstances
Even if the district court had accepted Butler’s contention that mitigating factors exist, the record shows that there are offsetting aggravating factors that might justify an upward departure. The aggravating factors include:
(1)The victim was particularly vulnerable due to age * * * which was known or should have been known to the offender[;]
(2)The victim was treated with particular cruelty for which the individual offender should be held responsible[; and]
(3)The current conviction is for a Criminal Sexual Conduct offense * * * and there is a prior felony conviction for Criminal Sexual Conduct offense * * * .
Minn. Sent. Guidelines II.D.2.b.
Although only one aggravating factor need be present to justify a departure from the sentencing guidelines, several exist here. See State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985) (determining that a single factor was sufficient to uphold a double departure); State v. Magee, 413 N.W.2d 230, 234 (Minn. App. 1987) (holding that one factor sufficient to justify 50% upward durational departure), review denied (Minn. Nov. 24, 1987).
The record shows that Butler assaulted the child while she was sleeping in her own home; that he used his position of trust to facilitate the assault; that he threatened to kill the child; and that he had committed a prior sex offense. As stated by the district court, these circumstances, if looked at carefully, support an upward departure and do not provide support for a downward dispositional departure.
This case is not one of those rare cases requiring the reversal of the sentencing court’s decision not to depart from the presumptive sentence. There are no substantial and compelling circumstances that exist to justify a downward dispositional departure. The district court did not abuse its discretion in its refusal to depart.