This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
State of Minnesota,
Lucille Mary Keppen,
Gordon W. Shumaker, Judge
Hennepin County District
Court File No. 02074744
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)
Considered and decided by Minge, Presiding Judge; Kalitowski Judge; and Shumaker, Judge.
GORDON W. SHUMAKER, Judge
On appeal from a sentence imposed for first-degree assault, 89-year-old appellant argues that the district court abused its discretion by denying her motion for a downward dispositional departure. Appellant argues that her age, remorse, cooperation, expert evaluation, lack of any prior record, and other factors indicate she is particularly amenable to treatment in a probationary setting. We affirm.
On September 15, 2002, appellant Lucille Keppen shot Stephen Flesche in the back. The bullet entered his back just below his left scapula, punctured his lung and exited through his left chest. Flesche underwent surgery and was hospitalized for six days. At the time of the shooting Keppen was 88 years old and Flesche was 63. Keppen was arrested at the scene. She was cooperative with the police and stated that she and Flesche, who lived in the same senior high-rise, had been close friends for approximately four years. Keppen stated that she had been helping Flesche financially until four months before the shooting when he started to receive social security benefits. Appellant stated that at that point Flesche started to ignore her.
On the day of the shooting, Keppen put a loaded .38 caliber handgun in her purse and went downstairs to the lobby of the senior high-rise to help set up coffee and rolls for a vespers meeting. Keppen knew that Flesche was going to be leading the meeting. Keppen stated that when Flesche arrived he looked at her like she was dirt and said, “good evening.” She then walked behind him and shot him in the back. Keppen stated that she wanted to hurt him like he had hurt her. She also stated that she purposely shot him above the lung where it would be “no big deal.”
Keppen was charged with first and second-degree assault and pleaded guilty to both charges. Keppen moved for a dispositional departure of the presumptive 86-month sentence, arguing that she “should be granted a probationary departure under the sentencing guidelines with no incarceration because she is particularly amenable to probation and in the interests of justice.”
At the sentencing hearing, the district court reviewed the pre-plea investigation (PPI) and addendum, a forensic psychological evaluation, an updated addendum to the evaluation, testimony of a licensed psychologist, testimony from the program director of the Minnesota Correctional Facility at Shakopee, testimony from Keppen’s neighbor, and applications for restraining orders against Keppen, which were filed by a man in a senior high-rise where Keppen had previously resided.
According to the (PPI), Keppen described her relationship with Flesche as a sort of “mother and son” relationship. They shared meals, rented movies together, went out for dinner and shopped at Wal-Mart. Keppen purchased clothing for Flesche, lent him money to buy a ring, and let him use her van for errands and to transport other residents of their building. According to Keppen, Flesche “promised that he would always take care of her and instructed her on what to do to . . . get into heaven.” But Keppen also stated that at times Flesche was verbally abusive and that when he began to receive social security benefits they saw each other less frequently. Keppen stated that after she refused to sign over the title to her van “to god,” Flesche excluded her from the Bible study that he led, and Keppen became his example of an individual who would “‘go to hell’ for her refusal to help god.”
Flesche stated that he eventually became convinced that Keppen “was not interested in his ministry and in living Christian ways.” He stated he was uncomfortable with his relationship with Keppen and, because he had been advised to avoid stress, he began to avoid her. Regarding Keppen’s relationship with T.S., the man at her former residence, Flesche stated that Keppen told him that “she waited in her car in the parking [lot] with her gun on two separate occasions, however [T.S.] didn’t come home either day and she eventually gave up.” The probation officer conducting the PPI was unable to offer a reason for departure from the presumptive sentence and concluded: “While based on her age, Mrs. Keppen may not fit conveniently into the corrections system, that alone may not be a sufficient reason to depart from the presumptive sentence.”
The forensic psychological evaluations and addendum indicate that Keppen has had heart surgery but is in good physical health for her age, has no chemical dependency issues, no indication of defect in her cognitive functioning, and that “[s]he was not evidencing symptoms of dementia.” The forensic evaluation shows that Keppen expressed a high degree of sadness and worry associated with the incident, that the symptoms did not rise to the level of a major depressive episode, but that ongoing monitoring of mood symptoms would be warranted. The addendum to the evaluation also recommends monitoring of issues related to relational instability, anger, and aggressive fantasy, but states that Keppen is not apt to pose a high risk for future violent offending.
A licensed psychologist testified at the sentencing hearing that Keppen’s behavior was the result of “considerable frustration and embarrassment.” He concluded that she should be sent to a “step-wise program” where she could live “outside of a locked facility.” The psychologist testified that Keppen felt she was justified in shooting Flesche but that this was an isolated incident. The record shows, however, that in making his observations and recommendation, the psychologist did not consider the complete police file. He also did not consider an addendum to the PPI which shows that Keppen was verbally aggressive, intolerant of others, and given to verbal outbursts while at Whittier, a psychiatric nursing home. The addendum states that Keppen was placed on an anti-depressant that improved her mood and affect but the medication was discontinued upon her request.
The program director of the Minnesota Correctional Facility at Shakopee testified that Shakopee would “make every attempt to accommodate the special needs of a person who has medical issues.” The director stated that there are inmates at Shakopee who take medication and that doctors and nurses see inmates as needed.
After reviewing this evidence the district court stated:
[I]n looking at the factors that would justify any kind of departure – and what comes to mind to me is actually your conduct was more serious than usually occurs in these kind of situations, because usually the other person’s back isn’t turned and usually there’s been some argument or fight or something that would have things reach this point.
The fact that you don’t have a criminal history has already been taken into account by the legislature and the sentencing guidelines.
The examinations indicate you have no physical or mental impairment. Your neighbor indicated that. Called you pretty sharp.
Your attitude pending trial since the guilty plea has been one of entitlement, one of verbal aggression. You have not been compliant at Whittier.
. . . .
And Ms. Keppen, this is a first time you have indicated any remorse in this matter, and I can only feel that the remorse you’re expressing now is for yourself in the situation you find yourself in.
The institution at Shakopee will give you a structured living environment and provide you with a supportive, therapeutic relationship. And there does not appear to be any physical or mental reason why you should not serve your sentence, which the legislature has determined, for someone who commits the kind of act you do, is fair and just.
I am committing you to the Commissioner of Corrections for 86 months.
Keppen initially appealed her sentence, arguing that (1) she should have received credit for her time at Whittier and (2) the district court abused its discretion by not granting a dispositional departure. By order dated February 10, 2004, this court dismissed the custody-credit issue based on the parties’ stipulation of partial dismissal. State v. Keppen, No. A03-1180 (Minn. App. Feb. 10, 2004) (order).
D E C I S I O N
Keppen argues that the district court abused its discretion by not granting a dispositional departure. We afford the district court great discretion in the imposition of sentences and we cannot simply substitute our judgment for that of the district court. State v. Murphy, 545 N.W.2d 909, 916 (Minn. 1996). A district court’s decision to depart from the presumptive sentence specified in the sentencing guidelines is reviewed for an abuse of discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). “Presumptive sentences are seldom overturned.” State v. Andren, 347 N.W.2d 846, 848 (Minn. App. 1984).
The purpose of the sentencing guidelines will not be served if the district courts generally fail to apply the presumptive sentences found in the guidelines. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). In fact, a sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). The aggravating or mitigating circumstances justifying departure from the presumptive sentence must be present in the record. Rairdon, 557 N.W.2d at 327.
“[A] defendant’s particular amenability to individualized treatment in a probationary setting will justify departure in the form of a stay of execution of a presumptively executed sentence.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). “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.” Id. When considering whether these factors are present, the sentencing court should consider “whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).
Keppen was born in 1914. At the end of her 86-month sentence she will be 97 years old. Given Keppen’s advanced age, it is uncertain if she will complete her sentence. The record shows, however, that she is in fairly good health, that Shakopee is able to manage her current medical needs, and that she could be transferred to a health-care facility if Shakopee was at any time unable to do so.
Keppen argues that she expressed remorse for the shooting at the sentencing hearing and during the PPI. The PPI states:
In retrospect [Keppen] feels terrible about shooting [Flesche]. She feels that if she could go back in time, she would have turned to someone else before becoming so dependent on him. Despite [Keppen’s account of what preceded the event], she denies planning this offense and says that she never thought about shooting him until he “treated [her] like dirt” just before the shooting.
The record shows that Keppen continued to feel that her behavior was justified, that she “seemingly had ambivalence about using a gun,” and that when asked what lesson she had learned, she said, “stay away from men.” During the sentencing hearing, Keppen stated that she knew that there were alternatives to shooting Flesche but at the time she was hurt by the fact that Flesche thought she was stupid, even though she had been so good to him.
The record shows that Keppen cooperated with the police following the incident and cooperated during the psychological evaluations. But the record also shows that Keppen was not cooperative at the psychiatric nursing home; she refused medication, was “verbally aggressive, intolerant to other residents and has verbal outbursts.”
The record shows that Keppen’s husband and sons are deceased, but Keppen receives “a great deal of support from residents of her former senior apartment complex.” This support is based in sympathy for how Flesche took advantage of Keppen, however, and could buoy Keppen’s feelings of justification for the shooting.
Attitude in Court/Prior Record
The transcripts from the plea and sentencing hearings show that Keppen was cooperative in court. Keppen has no prior record.
Taken together, the Trog factors weigh in favor of affirming the district court. In addition, considering whether Keppen’s conduct “was significantly more or less serious than that typically involved in the commission of the crime in question,” the record supports the district court’s finding that this assault was “more serious than usually occurs in these kind of situations, because usually the other person’s back isn’t turned and usually there’s been some argument or fight or something that would have things reach this point.”
In addition to the Trog factors, Keppen argues that there is little likelihood that she would repeat the criminal conduct. Keppen relies on the psychologist’s testimony that the offense was “an isolated incident of any violence.” But the psychologist had not considered the harassment orders for protection against Keppen, which were filed by T.S., a resident of the senior high-rise where Keppen previously resided.
Also, Keppen’s comments to the psychologist that she would try to stay away from men do not suggest a realistic strategy for avoiding future violence: “She was asked how she would check out a male whom she met. She said she would not trust anyone unless known to her pastor or another friend. She said, ‘I don’t think I’ll be in the same position.’” Thus, the district court did not abuse its discretion by not granting a dispositional departure.