This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Richard W. Taylor,
State of Minnesota,
Filed December 3, 2002
Ramsey County District Court
File No. K4011307
John Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue, S.E., 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 County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Hudson, Presiding Judge, Peterson, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
G. BARRY ANDERSON, Judge
Appellant challenges the district court’s exercise of discretion in sentencing him to a prison term of 180 months, 36 months more than the 144-month presumptive sentence for criminal sexual conduct in the first degree. Appellant likewise contends the district court abused its discretion in ordering restitution. Because there was no abuse of discretion, we affirm.
Appellant’s postconviction petition seeks a reduction in sentencing to the presumptive level, arguing that because the legislature in 2000 tripled the presumptive sentence for this offense from 48-months to 144 months, the upward departure should be measured from the earlier 48-month presumptive sentence rather than the later 144-month presumptive sentence. Citing the multiple aggravating factors, the district court denied the petition. This appeal followed.
Appellant challenges the district court’s postconviction refusal to impose the statutory presumptive sentence as an abuse of discretion. Appellant argues that although he committed the crime in March 2001, after the legislature tripled the presumptive sentence for criminal sexual conduct in the first degree, the district court should have taken into account the former presumptive sentence of 48 months when deciding whether to depart. Appellant suggests that his sentence represents more than a double departure from the sentencing guidelines and that this case is not one of the “‘rare’ case [where] aggravating circumstances are so severe as to warrant” such a significant departure. State v. Beard, 574 N.W.2d 87, 93 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998).
Appellant points out that a departure greater than two times the presumptive sentence is appropriate if the case involves multiple injuries and psychological trauma. State v. Olson, 436 N.W.2d 817, 821 (Minn. App. 1989) (affirming a quadruple departure in a case involving the death of a three year old child, where the record reflected the particularly cruel nature of the crime, multiple incidents of abuse, the vulnerability of the victim and the psychological trauma to the victim’s older sister who witnessed the abuse), review denied (Minn. Apr. 26, 1989). Appellant argues that the record here does not contain the “unusually compelling” factors necessary to justify such a long sentence. State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).
Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citing Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997)). “The decisions of a post conviction court will not be disturbed unless the court has abused its discretion.” Id. While there must be “substantial and compelling circumstances” in the record to justify a departure, Rairdon v. State, 557 N.W.2d 318, 325 (Minn. 1996) (citing State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981)), this court does not modify the departure unless it has a “strong feeling that the sentence is disproportionate to the offense.” State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984) (citing Perry v. State, 595 N.W.2d 197, 200 (1999)).
An offender may benefit from a reduction in a presumptive sentence even for offenses committed before the reduction took effect. State v. Heidelberger, 353 N.W.2d 582 592 (Minn. App. 1984) (holding that the appellant, convicted of interfamilial sexual abuse committed in 1982, was entitled to benefit of the 1983 reduction in the presumptive sentence), review denied (Minn. Sept. 12, 1984). Reductions in the presumptive sentence are to be applied retroactively unless the legislature clearly did not intend this result. State v. Northard, 348 N.W.2d 764, 767 (Minn. App. 1984), review denied (Minn. Sept. 5, 1984). Further, “the defendant must be given the benefit of the doubt as to the legislature’s intent” if there is any doubt whether the legislature intended the reduction to be applied retroactively. State v. Vadnais, 393 N.W.2d 178, 179 (Minn. 1986).
The issue of how to treat a statutorily mandated increase in a presumptive sentence in evaluating an upward departure appears to be a question of first impression in Minnesota. Although this court has had an opportunity to craft the kind of rule that appellant seeks, we have implicitly declined to do so. See State v. Hart, 477 N.W.2d 732 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992). When the legislature elects to reduce the presumptive sentence, applying the new shorter sentence retroactively is appropriate. This furthers the desire to lessen the punishment for a specific offense. However, when the legislature chooses to increase the presumptive sentence it has expressed an obvious intention to increase the punishment for the specific offense. Allowing an offender to benefit from the former lower presumptive sentence thwarts this goal of the legislature.
The last time the presumptive sentence for criminal sexual conduct in the first degree was increased was August 1, 1989, and this court did not consider that increase when evaluating the appropriateness of subsequent upward departures in sentencing. For example, in State v. Hart we affirmed the imposition of a double durational departure without noting that had the offense occurred 14 months earlier, the 244-month sentence would have represented a three-fold increase from the former 76-month sentence. Hart, 477 N.W.2d at 739-40. Similarly, in State v. Yanez, this court affirmed a 40 month upward durational departure sentence from the 110 months presumptive sentence, for an assault that took place September 29, 1989. State v. Yanez, 469 N.W.2d 452, 453-57 (Minn. App. 1991), review denied (Minn. June 19, 1991). The Yanez court did not take into account the fact that had the crime taken place two months earlier, the presumptive sentence would have been 65 months, nearly half the 110 months presumptive sentence in effect when the crime occurred. Id. Nor did the Yanez court consider that the 150-month sentence imposed represented more than a doubling of the former presumptive sentence. Id. Here, like Hart and Yanez, the district court properly used the new presumptive sentence of 144 months.
The fact that the previous presumptive sentence for this crime was less than the present, statutorily required presumptive sentence is irrelevant. The legislature is empowered to determine the duration of criminal sanctions and it chose to triple the presumptive sentence for this offense. See State v. Ford, 539 N.W.2d 214, 230 (Minn. 1995). The district courts imposing a sentence other than the presumptive 144 months have been instructed by the legislature to proceed as if they were departing from the guidelines. Minn. Stat. § 609.342, subd. 2(b).
Here the district court found three aggravating factors: (1) the victim’s vulnerability, (2) multiple incidents of misconduct, and (3) appellant’s abuse of his position of trust. Based upon these multiple aggravating factors, the district court added 36 months to the presumptive 144-month sentence. We cannot say that the sentence imposed was disproportionate to the offense committed. See Anderson, 356 N.W.2d at 453. The district court is given the discretion to depart from the sentencing guidelines, and we find it has exercised its discretion appropriately.
In his pro se brief, appellant contends the district court abused its discretion by ordering him to pay restitution. An offender wishing to contest restitution at sentencing must do so in a manner prescribed by statute. Minn. Stat. § 611A.045, subd. 3 (2000). Appellant did not challenge restitution at sentencing or during his postconviction hearing and is therefore precluded from doing so here. See State v. Thole, 614 N.W.2d 231, 235 (Minn. App. 2000).