This opinion will be unpublished and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
State of Minnesota,
Paul Daniel Schumacher,
Filed September 16, 2003
Kanabec County District Court
File No. K801668
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Norman J. Loren, Kanabec County Attorney, 18 North Vine Street, Suite 202, Mora, MN 55051-1351 (for respondent)
John M. Stuart, State Public Defender, Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, No. 320, Eagan, MN 55121 (for appellant)
Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.
GORDON W. SHUMAKER, Judge
Appellant challenges the district court’s order sentencing him to the presumptive sentence and denying his motion for a downward dispositional departure. Because the district court did not abuse its discretion when it sentenced appellant, we affirm.
During the summer of 2001, appellant Paul Daniel Schumacher had sexual relations with one of his Mora High School band students. Schumacher pleaded guilty to attempted first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(b) (2000), and Minn. Stat. § 609.17 (2000), and to two counts of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(e) (2000).
The district court denied Schumacher’s motion for a downward dispositional departure and sentenced him to concurrent presumptive executed sentences for counts one and three of 43 months and 33 months, respectively. Because Schumacher’s sentences for count one and three were presumptively executed, he elected to have the district court execute his 28-month sentence for count two.
Schumacher appeals the district court’s refusal to order a sentencing departure, contending that mitigating factors exist and that he is amenable to probation.
D E C I S I O N
The Minnesota Sentencing Guidelines were created to “establish rational and consistent sentencing standards which reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender’s criminal history.” Minn. Sent. Guidelines I. The district court may depart from the presumptive sentence only when “substantial and compelling circumstances” exist. Id. at II.D.
Based on the purposes of the sentencing guidelines, we are “loath to overturn the exercise of [the district court’s sentencing] discretion without clear evidence of its abuse.” State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996) (citation omitted). And only “a rare case . . . would warrant reversal of the refusal to depart.” State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Schumacher contends that the district court abused its discretion when it refused to order a dispositional departure, arguing that both the court-appointed and independent psychologists’ reports concluded that he was amenable to probation.
The district court thoroughly analyzed each mitigating factor listed in the sentencing guidelines before it sentenced Schumacher. The court provided several reasons in support of its decision not to depart dispositionally: (1) a psychological report stated that it “found Mr. Schumacher to be very defensive, [by] trying to present [himself] in the best possible light”; (2) the multi-phasic sex inventory profile showed that Schumacher “denied sexual drives and was trying to fake good,” with the evaluator noting that he had “little motivation for treatment”; (3) “[t]he evaluations voiced concerns about the effectiveness of treatment and the motivation for [it]”; (4) the acts took place over a period of months and against the encouragement of professional colleagues to end the relationship; (5) he crossed a “large professional boundary”; (6) he continually referred to the relationship as consensual when it cannot be a consensual relationship with a 15-year-old; and (7) he received a “significant benefit” when the state charged him with attempted first-degree criminal sexual conduct, instead of first-degree criminal sexual conduct, because this reduced the possible presumptive sentence in half. The district court concluded:
Taking all of this into account, the Court is unable to identify factors under the guidelines that would afford a basis for a downward dispositional or durational departure.
Given all the factors and information that I’ve discussed and that are contained in the court file, a sentencing guideline sentence is appropriate.
When determining whether the district court abused its discretion by not ordering a dispositional departure, we must consider the “defendant’s particular amenability to individualized treatment in a probationary setting.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (citation omitted). This includes looking at “perpetrator-related factors,” such as the “defendant’s dangerousness.” State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (citations omitted). We must also review the sentencing guideline’s list of mitigating factors. Minn. Sent. Guidelines II.D.2.
Schumacher does not contend that the factors specifically listed as mitigating factors apply in his case, but that “other” mitigating factors exist. See Minn. Sent. Guidelines II.D.2.a.(5) (providing that a mitigating factor may be that “[o]ther substantial grounds exist which tend to excuse or mitigate the offender’s culpability, although not amounting to a defense.”). He argues that there are “other” mitigating factors under Trog because he showed remorse, has no prior convictions, was successful in his new job, has above-average intelligence, and has a strong supportive network of family and friends.
The “other” mitigating factors that Trog recognizes are “the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family.” Trog, 323 N.W.2d at 31. Here, Schumacher was relatively youthful, did not have a prior criminal record, was cooperative in the pre-sentence investigation (PSI) process, and had family and friends who wrote numerous letters stating that he had changed his life for the better. But the record does not support his contention that he was remorseful. Schumacher does not take full responsibility for his offenses, but instead blames his crimes on his failing marriage and his desire to get out of teaching. The court-appointed psychologist’s report states that Schumacher’s statement that he “had an affair and got caught . . . allows him to avoid coming to terms with the seriousness of his deviant behavior and the dynamics which permitted him to offend.” The report also states that “his characterization of the offense as a consensual affair appears to minimize his responsibility for victimizing a minor child.” Although there are “other” factors that could be seen as mitigating, there are equally strong factors to offset mitigation.
In addition, Schumacher’s argument that he should have received probation because both psychologists’ reports concluded that he is amenable to probation, is not accurate. Although the court-appointed psychologist stated that Schumacher meets the factors he considers in determining amenability to probation, the psychologist states:
It is noted with concern that in the past, Mr. Schumacher has made conscious decisions to bypass appropriate boundaries and ignore warnings from colleagues, in order to pursue self-gratification. His risk for repeating such behavior raises the question as to whether it is safe for him to remain in the community.
And Schumacher’s own independent psychologist reported that Schumacher was dishonest about his sexual drives, which “indicated he was not motivated for treatment and that he might justify a sexual deviance.” The psychologists’ negative comments in their reports provided the district court with a sufficient basis for its decision not to depart and place Schumacher on probation. Thus, we conclude that the district court did not abuse its discretion when it did not order a sentencing departure, because this is not a “rare” case that would justify such a downward dispositional departure.