This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Daniel Adam Dusbabek,



Filed December 3, 2002


Kalitowski, Judge


Rice County District Court

File No. K602172


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


G. Paul Beaumaster, Rice County Attorney, Nathaniel J. Reitz, Assistant County Attorney, Rice County Courthouse, 218 Northwest Third Street, Faribault, MN 55021 (for respondent)


John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Daniel Adam Dusbabek claims that the district court (1) erred when it used his prior juvenile adjudications to add one point to appellant’s criminal history score; and (2) abused its discretion by denying his motion for a downward dispositional departure.  We affirm.



Appellant contends that the district court erred in determining that his prior juvenile adjudications fall under the current Minnesota sentencing statute. The interpretation of a statute is a question of law subject to de novo review.  In re Welfare of D.D.G., 532 N.W.2d 279, 280-81 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).  

Effective January 1, 1995, the state legislature enacted numerous substantive changes to the juvenile justice system.  The changes gave juveniles the right to effective assistance of counsel in connection with a proceeding in juvenile court and the right to a jury trial on the issue of guilt for a child who is prosecuted as an extended jurisdiction juvenile.  Minn. Sent. Guidelines cmt. II.B.401.  Because these changes gave juveniles greater procedural safeguards in juvenile court, the sentencing guidelines were amended to give district courts more discretion in terms of how courts could consider juvenile records for sentencing purposes.  Id.  Provided each offense meets certain criteria, the sentencing guidelines now allow a district court to assign one criminal history point for “every two offenses committed and prosecuted as a juvenile that are felonies under Minnesota law * * * .”  Minn. Sent. Guidelines II.B.4.

Appellant admits that he has a prior juvenile record, but claims that because he committed his prior juvenile offenses in 1994, before the legislature enacted the substantive and procedural changes to the juvenile justice system, it would “defy logic” to calculate his criminal history score using pre-1995 offenses.  We disagree.  

First, there is no evidence in the record that appellant committed his prior juvenile offenses before 1995.  That issue was not raised in the district court, and there is nothing in the record that indicates when appellant actually committed those offenses.  Second, even if appellant committed the offenses in 1994, the record indicates that the date of disposition for the offenses was in April 1995.  And the comments to the sentencing guidelines state that the use of juvenile records in computing criminal history scores was broadened beginning in January 1995 because the legislature had expanded the procedural rights of juveniles in juvenile courts.  Minn. Sent. Guidelines cmt. II.B.401.  Thus, because appellant’s date of disposition was in April 1995, appellant had the benefit of those expanded rights.  We conclude it was appropriate for the district court to use appellant’s prior juvenile offenses when calculating appellant’s criminal history score.     


This court does not interfere with a district court’s broad sentencing discretion unless there has been a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  The sentences provided in the sentencing guidelines grid are presumed appropriate for every case, and only in the “rare case” will this court reverse imposition of the presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); Minn. Sent. Guidelines II.D.  A district court may order a downward departure from the presumptive sentence only if “substantial and compelling” circumstances warrant such a downward departure.  Id. at 7. 

Here, the district court refused to depart downward and imposed the 58-month presumptive sentence for racketeering.  Appellant contends the district court abused its discretion because the court refused to consider factors supporting a downward departure.  Appellant bases his argument on State v. Trog, 323 N.W.2d 28 (Minn. 1982).  In Trog, the Minnesota Supreme Court stated that 

Numerous factors, including 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.


Id. at 31.  Appellant argues that the district court abused its discretion in denying the downward dispositional departure because appellant met all of the Trog factors. 

But the mere fact that mitigating factors are present in a particular case does “not obligate the court to * * * impose a shorter term than the presumptive term.”  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).  The district court listened to appellant’s arguments but, given the nature of appellant’s conduct, the district court concluded that the circumstances did not warrant a downward departure.  In its decision, the district court noted that appellant’s racketeering offense could easily have been classified as a level eight offense rather than the level seven offense agreed to by the parties.  Moreover, the district court noted that appellant had been placed in a position of trust as a cook in a correctional facility and then betrayed that trust by smuggling cocaine into that facility.  We conclude that the determination not to depart was within the discretion of the district court.