This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





James Anthony Mensen,



Filed April 13, 2004


Kalitowski, Judge


Ramsey County District Court

File No. K7-02-1733


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)


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


            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant James Anthony Mensen challenges the district court’s decision to sentence him to the presumptive sentence of 144 months following his guilty plea to first-degree criminal sexual conduct, arguing that the district court abused its discretion in denying his request for a dispositional departure from the presumptive sentence.  We affirm.


“[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted).  If the district court determines that such factors are present, the decision to depart from sentencing guidelines rests within its discretion and an appellate court will not reverse absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  An appellate court will rarely reverse a sentencing court’s refusal to depart.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

            Appellant argues that he is entitled to a dispositional departure because he is developmentally disabled and is amenable to probation.  “A trial court sentencing a defendant for criminal sexual conduct may depart dispositionally from the presumptive sentence and place the defendant on probation only if the defendant is particularly amenable to probation or if offense-related mitigating circumstances are present.”  State v. Love, 350 N.W.2d 359, 361 (Minn. 1984).  Mitigating factors include determining whether “[t]he offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed.”  Minn. Sent. Guidelines II.D.2.a.(3).  But the mere fact that a mitigating factor is present does not obligate the court to grant a downward departure.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001). 

            Appellant argues that he is entitled to a dispositional departure because he is amenable to probation.  Courts have justified downward departures from sentencing guidelines where an adult is particularly amenable to treatment in a probationary setting.  See State v. Hennessy, 328 N.W.2d 442, 443 (Minn. 1983); State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); State v. Wright, 310 N.W.2d 461, 462 (Minn. 1981).  “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.”  Trog, 323 N.W.2d at 31.

            The record indicates that (1) appellant has below-average intelligence and was 21 years old at the time he committed the offense; (2) appellant’s parents testified at the sentencing hearing showing family support; (3) before sentencing appellant apologized and expressed remorse; and (4) a therapist indicated that appellant is a good candidate for therapy.  But the record also indicates that during his presentence investigation (PSI), appellant lied about a previous sexual offense that he committed when he was 15.  And the PSI report states that appellant’s misrepresentations made during the investigation indicate his “lack of amenability to treatment.”

Appellant also argues that he is entitled to a dispositional departure because he is developmentally disabled.  Mental impairment is a mitigating factor, but only extreme mental impairment justifies the mitigation of a sentence.   State v. Lee, 491 N.W.2d 895, 902 (Minn. 1992).  Here, appellant’s mental impairment is not so severe that he “lacked substantial capacity for judgment when the offense was committed.”  Minn. Sent. Guidelines II.D.2.a.(3).  While there is evidence in the record that appellant has below-average intelligence, the record does not indicate that he has an extreme mental impairment.  Appellant completed high school and held a job at a hospital for several years prior to the offense.  Moreover, appellant’s PSI report noted that withholding information that appellant believed would hurt him showed sophistication and manipulation.

We conclude that the record does not conclusively show that appellant is amenable to treatment or that his mental impairment requires a mitigated sentence.  Therefore, the district court did not abuse its discretion in sentencing appellant to the presumptive sentence.