This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Daniel David Lade,
Stearns County District Court
File No. K6015304
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Roger S. Van Heel, Stearns County Attorney, Daniel A. Benson, Assistant Stearns County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303-4701 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.
Appellant Daniel Lade challenges the district court’s imposition of the presumptive sentence for his conviction of first-degree burglary, arguing that the district court abused its discretion by imposing the presumptive sentence and denying his motion for a dispositional departure. Because the district court did not abuse its discretion by imposing the presumptive sentence and denying appellant’s motion for a dispositional departure, we affirm.
At approximately 7:00 a.m. on December 2, 2001, appellant Daniel Lade’s wife returned home from work. She found a greeting card on her bed with a threatening message from appellant. She thought that the card had been sent home with her children after their visitation time with appellant over the weekend. She then heard noises coming from her son’s bedroom. When she opened the door to her son’s room, she saw appellant, who had entered the house in violation of an order for protection. Appellant’s wife called the police. While she was calling the police, appellant forced his way into the room and implored her not to make the call.
Sauk Centre police officer Dan Moldenhauer arrived at the house at about 7:53 a.m. and took appellant into custody. At the time, appellant had a ten-inch hunting knife and a 100,000-volt stun gun.
Appellant was charged with burglary in the first degree under Minn. Stat. § 609.582, subd. 1(a) (2000), and violation of an order for protection under Minn. Stat. § 518B.01, subd. 14(d)(2) (2000). Appellant was later charged with an additional count of burglary in the first degree under Minn. Stat. § 609.582, subds. 1(b), 1a (2000). Appellant pleaded guilty to burglary in the first degree under Minn. Stat. § 609.582, subds. 1(b), 1a. The plea agreement did not specify a particular sentence but allowed appellant to withdraw his plea if his psychological evaluation did not recommend a dispositional departure in the form of in-patient psychiatric treatment.
Appellant underwent a psychological evaluation. The evaluation recommended that appellant continue anti-depressant medication with psychiatric supervision, but did not recommend in-patient treatment. Following the psychological evaluation, the probation officer recommended the presumptive sentence of 48 months. Appellant’s dispositional advisor stated that appellant would be amenable to probation and recommended a stayed imposition of a 48-month sentence with up to 20 years’ probation. Appellant moved for a dispositional departure. At the sentencing hearing, respondent did not oppose appellant’s motion for a dispositional departure, but the district court denied the motion. Pursuant to his plea agreement, appellant was given the opportunity to withdraw his guilty plea, but he declined to do so after considering the matter for a day. The district court sentenced appellant to the presumptive sentence of 48 months. This appeal follows.
D E C I S I O N
Appellant argues that the district court abused its discretion by imposing the presumptive sentence for burglary in the first-degree and by denying appellant’s motion for a dispositional departure. Only in a “rare” case will a reviewing court reverse a trial court’s imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The sentences set forth in the Minnesota Sentencing Guidelines are presumed to be appropriate for every case. Minn. Sent. Guidelines II.D.01. Generally, an appellate court will not review the trial court’s exercise of its discretion when the sentence imposed is within the presumptive range. State v. Witucki, 420 N.W.2d 217, 223 (Minn. App. 1988), review denied (Minn. Apr. 15, 1988). Even if grounds exist that may justify a dispositional departure, an appellate court generally will not interfere with the imposition of the presumptive sentence. State v. Evanson, 554 N.W.2d 409, 412 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).
A trial court may consider any relevant factors when determining whether there is a substantial basis to make a dispositional departure. State v. Case, 350 N.W.2d 473, 475 (Minn. App. 1984). Relevant factors to consider include: the defendant’s age, prior record, his or her remorse, cooperation, attitude while in court, particular amenability to a probationary setting, and whether he or she has strong support from family and friends. State v. Trog, 323 N.W.2d 28, 30-31 (Minn. 1982). Generally, there must be substantial and compelling circumstances for a trial court to depart from the presumptive sentence. Minn. Sent. Guidelines II.D.
The district court found that appellant presented a public safety concern because of his mental health issues and, therefore, denied appellant’s motion for a dispositional departure. Appellant asserts that the court’s finding that appellant is a threat to public safety is unsupported by the record while there is an abundance of evidence that appellant is amenable to probation. Appellant further asserts that the evidence shows that he is unlikely to re-offend and that his chemical and mental health issues can best be served by probation, as opposed to a prison sentence.
Appellant was 37 years old at the time of this offense. Other than a 1999 DWI conviction, which resulted in two years of probation, he has no other prior offenses. The sentencing memorandum states that appellant is remorseful for his actions and that he has taken responsibility for his actions by pleading guilty. Appellant cooperated throughout the proceedings, and there is no evidence that he has had any attitude problems while in court. The sentencing memorandum also states that appellant has the support of his family and friends and has a job waiting for him. These factors support appellant’s request for a dispositional departure.
Appellant’s amenability to probation largely revolves around his chemical and mental health issues. Appellant’s dispositional advisor found that appellant was amenable to probation. The dispositional advisor spoke with appellant’s therapist who stated that appellant was committed to his treatment program, that he did not believe appellant was a threat to others, and that appellant would benefit from a day treatment program. The dispositional advisor concluded that appellant was not a risk to public safety and recommended that he receive a probationary sentence with several conditions. The conditions included, inter alia, continued chemical and mental health treatment and no contact with Mrs. Lade.
The psychologist from the Minnesota Department of Human Services who evaluated appellant found that appellant has a history of depression and alcohol abuse, but that he was not presently experiencing symptoms of depression or psychosis. The psychologist recommended that appellant continue on his medication with psychiatric supervision, but did not recommend in-patient treatment because of the lack of current signs of depression. Based on the psychologist’s evaluation, the probation officer concluded that appellant was not amenable to probation and recommended that the court impose the presumptive sentence.
The district court has broad discretion when imposing a sentence in the presumptive range. See Witucki, 420 N.W.2d at 223. The district court recognized that appellant had some positive opportunities available to him if he were given probation. But the court was concerned by appellant’s inability to cope with the dissolution of his marriage. The court found that appellant was “on the fringe” and that he presented a public safety concern because of his mental health issues. Although appellant has no history of violence, the district court found that appellant was “ripe for some kind of violence.” In particular, the court seemed troubled by the tone and content of letters that appellant sent to the court on a daily basis. Appellant’s letters stated repeatedly that he felt that his parental rights were being violated and insisted that the court arrange for his wife to be present in court.
The district court was in a position to observe and evaluate appellant’s stability and the potential risk he presents to public safety. The court also found that a dispositional departure was inappropriate because appellant’s psychological evaluation did not recommend in-patient mental health treatment. The district court has broad discretion when imposing the presumptive sentence. See Evanson, 554 N.W.2d at 412. Based on this record, we conclude that the district court was within its discretion when it denied appellant’s motion for a dispositional departure and imposed the presumptive sentence.