This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Richard Hemingson,


Filed April 29, 2003


Peterson, Judge


Hennepin County District Court

File No. 01067169



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and



Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)



John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant Richard Hemingson argues that the district court abused its discretion when it denied his motion for a dispositional departure from the guidelines sentence following his convictions of first- and second-degree criminal sexual conduct.  Because the district court did not clearly abuse its discretion when it imposed the presumptive guidelines sentence, we affirm.


            In June 2001, appellant’s daughter, M.H., invited her 11-year-old girlfriend, A.M., to stay overnight with her.  The two girls slept in the back yard in appellant’s camper.  Appellant’s wife asked appellant to stay in the camper with the girls because she was concerned about their safety, and, for health reasons, she could not stay with them.

            The girls and appellant sat together on one of the beds in the camper and told scary stories.  The girls were in their pajamas.  A.M. testified that appellant touched her bare bottom, underneath her pajamas for 10-15 minutes.  M.H. testified that she saw her father rub A.M.’s back in response to her fright and that she did not see her father rub A.M. inappropriately.  When appellant’s wife went out to the camper at 11:30 p.m. to say that it was time to go to sleep, she did not notice anything unusual.

            Sometime in the night, A.M. awoke and found appellant touching her bottom again.  A.M. pretended that she was asleep so that he would stop, and he did.  A.M. awoke later and found appellant pulling her pajama shorts and underpants down past her knees and rubbing his face in her vagina.  A.M. thought this continued for “maybe” 20 minutes.  A.M. also testified that appellant put his nose inside her vagina.  She thought that he might have put his fingers down by her vagina as well.

            A.M. went into the house to use the bathroom.  When she returned to the camper, appellant pulled down his pants and asked A.M. if she wanted to touch his penis.  She told him “no,” and he tried to physically move her hand toward his penis, but A.M. successfully resisted his attempts.  M.H. awoke when A.M. and appellant were talking.  A.M. told M.H. that she had a bad dream.  Two weeks later, A.M. again slept in the camper with M.H. and appellant.  At some point after that, A.M. spoke to appellant on the telephone, and he gave her his cell-phone number.  He told her that she could call him if she had questions or wanted him to touch her again.

A.M. told her mother about what happened, and her father called the police.  Appellant was charged with first- and second-degree criminal sexual conduct. At trial, appellant denied touching A.M. sexually.  The jury returned guilty verdicts on both charges, and the district court ordered a presentence investigation and a psychological assessment.

Dr. Carole Mannheim, a clinical psychologist, interviewed appellant on two occasions and administered a battery of psychological tests.  Mannheim recommended community-based treatment based on appellant’s willingness to acknowledge the probability of his involvement in the offense.  At sentencing, appellant expressed remorse, apologized to A.M. and her family, and moved for a dispositional departure from the 144-month executed presumptive sentence.  The district court denied appellant’s motion and sentenced him to 144 months in prison.


The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  The guidelines sentences are presumed to be appropriate for every case.  Minn. Sent. Guidelines II.D.  Therefore, only in a “rare” case will a reviewing court reverse a district court’s imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Only where substantial and compelling mitigating factors are present may the district court downwardly depart from the presumptive sentence.  Kindem, 313 N.W.2d at 7.

Appellant argues that because mitigating factors are present, the district court abused its discretion in failing to grant his motion for a dispositional departure.  The sentencing guidelines provide a nonexclusive list of factors that may be used as a reason to mitigate a sentence and focus primarily on the degree of the defendant’s culpability, such as whether the victim was an aggressor, or whether the offender played a passive role in the crime, or lacked substantial capacity for judgment when the offense was committed.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); Minn. Sent. Guidelines II.D.2.a.  Those factors are not present here.  But another mitigating factor is a defendant’s amenability to treatment in a probationary setting.  Trog, 323 at 31.

In determining whether a defendant is amenable to individualized treatment in a probationary setting, courts look at the defendant’s age, prior record, remorse, cooperation and attitude while in court, and the support of friends and family.  Id.  It is undisputed that appellant, who is 56 years old, has no prior record and expressed remorse at the sentencing hearing.  He also appears to have the support of his family, and the examining psychologist recommended community-based treatment rather than prison.

However, as the state argues, the mere presence of mitigating circumstances does not compel a downward departure.  This is not the rare case where imposing the presumptive sentence was a clear abuse of the sentencing court’s discretion.

Appellant next argues that the statements that the district court made while denying his motion for a dispositional departure show that the court denied his motion to punish him for proceeding to trial.  Before imposing sentence, the district court stated:

[Appellant] knew what the consequences were before he went to trial, we placed that on the record.  The young lady was forced to come into the courtroom, testify before a jury, many people that she didn’t know, that in fact was a trauma in and of itself.  I can see no reason for departure. I’m hopeful that [appellant] will take advantage of the treatment facilities and the treatment opportunities that they will provide to him in prison.  And 144 months is a long time but it is statutorily required if I cannot find a reason for departure, and at this point in time I can’t.  I can still see the victim testifying on the stand, she was traumatized, and the defendant’s own daughter was present at the time that the offense was committed and knows more about what her father did than any young lady probably ever should and she has to deal with it.


As appellant argues, the sentencing guidelines prohibit a district court from departing from the presumptive sentence based on “[t]he exercise of constitutional rights by the defendant during the adjudication process.”  Minn. Sent. Guidelines II.D.1.e.  But here, the district court did not depart from the presumptive sentence.

However, it is well-settled that a defendant cannot be punished for exercising rights that are constitutionally guaranteed.  State v. Pickett, 375 N.W.2d 105, 108 (Minn. App. 1985), review denied (Minn. Dec. 19, 1985).  “[T]he fact that a ‘defendant exercises his constitutional right * * * to determine his guilt or innocence must have no bearing on the sentence imposed.’”  State v. Mollberg, 310 Minn. 376, 388, 246 N.W.2d 463, 471 (1976) (quoting Hess v. United States, 496 F .2d 936, 938 (8th Cir. 1974)) (citation omitted).

“[T]he record must affirmatively show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty.”


Id. at 388, 246 N.W.2d at 471 (quoting United States v. Stockwell, 472 F.2d 1186, 1188 (9th Cir. 1973)).  The issue is whether the district court imposed a harsher sentence because appellant elected to stand trial.  Id.

Appellant was convicted of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2000).  Minn. Stat. § 609.342, subd. 2(b) (2000), which establishes the penalty for first-degree criminal sexual conduct, provides:

Unless a longer mandatory minimum sentence is otherwise required by law or the sentencing guidelines provide for a longer presumptive executed sentence, the court shall presume that an executed sentence of 144 months must be imposed on an offender convicted of violating this section.  Sentencing a person in a manner other than that described in this paragraph is a departure from the sentencing guidelines.

            Pursuant to this statute, the district court imposed an executed sentence of 144 months.  Although the statements that the district court made during sentencing indicate that the court was troubled by the effect the trial had on A.M., they also indicate that the court imposed the 144-month sentence because it was required by statute, and the court searched for, but could not find a basis to depart.  Because the record shows that there were not substantial and compelling mitigating circumstances, it also shows that the court sentenced appellant based upon the facts of his case and his personal history, and not as punishment for his decision to stand trial.

            Appellant cites United States v. Medina-Cervantes, 690 F.2d 715, 716 (9th Cir. 1982) in support of his argument.  But that case is distinguishable because there the district court imposed the maximum sentence within a range of penalties permitted by statute.  Id.  The appellate court vacated the sentence because the district court’s statements indicated that the defendant was punished more severely because of his assertion of his right to a jury trial.  Id. at 716-17.  In appellant’s case, the district court did not exercise its discretion to impose the maximum sentence allowed; the court imposed the statutorily prescribed presumptive sentence.

            Appellant also argues in a pro se supplemental brief that the district court erred in denying his motion for a dispositional departure because the court did not have a full and complete picture of his history prior to sentencing.  The record does not support appellant’s argument.  The 13-page presentence investigation report and the detailed psychological report were extensive and contain substantially all of the information that appellant includes in his pro se brief.