This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Abigail Margaret Fleissner,



Filed July 6, 2004


Kalitowski, Judge


St. Louis County District Court

File No. K8-03-601040


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


Alan L. Mitchell, St. Louis County Attorney, Mark S. Rubin, Assistant County Attorney, Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for appellant)


Mark D. Nyvold, Special Assistant State Public Defender, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101; and


Kevin Charles Cornwell, 1011 East Central Entrance, Duluth, MN 55811 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge; Schumacher, Judge; and Huspeni, Judge.*


U N P U B L I S H E D   O P I N I O N


            Respondent Abigail Fleissner pleaded guilty to aiding and abetting unintentional second-degree murder.  The record indicates that respondent drove four other individuals to a private residence where, in the course of an attempted robbery/burglary, a firearm was discharged, killing a sleeping five-year-old child.  Appellant State of Minnesota argues that the district court abused its discretion in departing from the presumptive sentence by staying execution of the presumptive 144-month sentence and placing respondent on probation for ten years.  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).  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). 

A decision to depart dispositionally focuses “more on the defendant as an individual and on whether the presumptive sentence would be best for him and for society.”  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).  The sentencing court may dispositionally depart from the presumptive sentence if there are substantial and compelling circumstances.  State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), overruled on other grounds by State v. Givens, 544 N.W.2d 774 (Minn. 1996).  Several factors including the defendant’s age, prior record, remorse, cooperation, attitude while in court, and the support of friends and/or family are relevant to a determination whether a defendant is particularly amenable to probation.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  Other mitigating factors include whether the defendant played a minor or passive role in the crime and whether other substantial grounds exist that tend to excuse or mitigate the offender’s culpability.  Minn. Sent. Guidelines II.D.2.a.(2), (5).

            Appellant first argues that the district court erred in not providing notice that it was considering a dispositional departure, as required under Minn. R. Crim. P. 27.03, subd. 1(C).  We disagree.  The record indicates that appellant had previously written to respondent’s attorney and stated that respondent was free to argue for any sentence she deemed to be appropriate.  And at the sentencing hearing, appellant stated that “[t]he defense has a right to ask for a departure from the presumptive guidelines in this case.  The only agreement that we made is that we would not seek more than the 144-month presumptive sentence under the Minnesota Sentencing Guidelines.”  Moreover, the presentence investigation (PSI) report stated that respondent was requesting a dispositional departure.  Finally, appellant did not raise this argument before the district court or otherwise object to the alleged lack of notice.

            Appellant also argues that the district court abused its discretion in not considering both mitigating and aggravating factors in making its sentencing decision.  But the court referred to the crime as “heart-wrenching” and to respondent’s decision to participate as “stupid” and “senseless.”  The district court also indicated that it spent substantial time determining what would be the best sentence in this case.  And the district court referenced appellant’s arguments, which discussed in detail the aggravating factors present in the case.  Thus, the record indicates that the district court considered both mitigating and aggravating factors in making its decision.

            Appellant also argues that the district court’s decision was not consistent with the recommendation of the PSI report.  But the PSI report did not recommend a sentence; it merely stated the presumptive sentence.  Moreover, the PSI report noted that respondent volunteered to work with developmentally disabled students, served on the United Way Board, and volunteered at a local hospital.  And the report further noted that:  (1) respondent’s mother is a concerned and supportive parent who believes respondent may have mental health problems; (2) respondent did not appear to be a streetwise criminal as were her codefendants; (3) respondent was remorseful and accepted responsibility for her actions; and (4) respondent did not know the location of the residence where the crime was committed and was not aware that children would be present.  Thus, the record supports the district court’s conclusion that the PSI report included information supporting the dispositional departure.

            Appellant cites State v. Law, 620 N.W.2d 562 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000), and State v. Warren, 592 N.W.2d 440 (Minn. 1999), for the proposition that a district court’s decision to depart should be reversed when the sentence unreasonably depreciates the severity of the offense.  In both Law and Warren, the appellate court reversed the district court after finding that the severity of the offenses warranted a more severe sentence than the one imposed.  But while we agree that this case involves a horrible and tragic crime, respondent’s actions do not constitute the same high level of culpability as the defendants in Law and Warren.  Specifically, the district court here found respondent amenable to probation, amenable to treatment, young in age, and remorseful.  And the district court further found that respondent was supported by family and friends, lacked a criminal record, and played a minor role in the offense.  Thus, the mitigating factors present in this case are much more substantial than in the cases relied upon by appellant.

            In addition, the aggravating factors here are much less severe than the aggravating factors present in Law and Warren.  In Law and Warren, the defendants intentionally and maliciously harmed the victims, while here, respondent had a relatively minor role in the commission of the offense, did not take part in the planning, and was waiting in the car when the victim was accidentally shot.  Moreover, there is evidence in the record that respondent asked that the shooter not bring a gun and indicated that she did not want to be involved in the crime.  On this record, we conclude that respondent’s sentence does not unreasonably minimize her culpability.

            Finally, appellant argues that the district court may have impermissibly considered respondent’s race, education, or social privilege in granting the dispositional departure.  But although the district court appropriately considered respondent’s age, family support, and amenability to probation, the record does not indicate that the district court based its decision on impermissible factors.

            In conclusion, the district court properly considered mitigating and aggravating factors and stated on the record substantial and compelling reasons for a dispositional departure.  And because we cannot say the district court erred in determining that the imposed sentence is commensurate with respondent’s culpability, we conclude that the district court did not abuse its discretion in sentencing respondent.



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.