This opinion will be unpublished and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

A03-1631

 

State of Minnesota,

Respondent,

 

vs.

 

Ted Freeman,

Appellant.

 

Filed August 10, 2004

Affirmed

Willis, Judge

 

Dakota County District Court

File No. K7-02-2426

 

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

 

James C. Backstrom, Dakota County Attorney, Kathryn M. Keena, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for respondent)

 

John M. Stuart, State Public Defender, James R. Peterson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Willis, Judge.

 

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the district court’s imposition of the presumptive sentence for first-degree criminal sexual conduct, arguing that the court failed to exercise its discretion when, without considering factors that would support probation, it denied appellant’s request for a stayed sentence.  Because the record shows that the district court gave reasoned consideration to its sentencing decision, we affirm.

FACTS

In the spring of 2002, appellant Ted Freeman lived in Burnsville with his wife and two step-grandchildren.  On the morning of May 31, 2002, Freeman entered the bedroom of his step-granddaughter, V.M., and as V.M. lay in her bed, Freeman sucked her breasts, performed oral sex on her, and had vaginal intercourse with her to the point of ejaculation.  DNA tests of semen on V.M.’s pajamas supported her allegations against Freeman. 

Freeman was charged with first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subds. 1(b), 1(g) (2000), and second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subds. 1(b), 1(g) (2000).  Freeman claimed to have no recollection of the events that resulted in the charges and suggested that his lack of memory might be attributable to a head injury he had suffered.  Freeman also claimed that it was possible that he was intoxicated at the time of the offense.

            Freeman pleaded guilty to first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(g).  Minn. Stat. § 609.342, subd. 2(b) (2000), provides that the mandatory-minimum sentence for the offense is 144 months, executed.  Under a plea agreement, the state agreed to drop the three remaining charges and to request a sentence of no more than 144 months, with both the state and Freeman free to argue for any sentence up to that length. 

            A psychologist who conducted two court-ordered evaluations of Freeman reported that Freeman’s risk of recidivism was low but that Freeman’s inability to recall the incident and his limitations in the areas of transportation, health, and employment were obstacles to the potential effectiveness of sex-offender treatment.  A corrections officer who prepared presentence-investigation reports both before and after the plea hearing recommended the mandatory-minimum sentence of 144 months, executed.

            At the sentencing hearing, the state recommended a 144-month executed sentence, plus five years’ conditional release.  The state argued that probation was inappropriate because Freeman had not taken full responsibility for the crime even after pleading guilty, there were aggravating circumstances because Freeman violated V.M.’s zone of privacy and violated his position of trust, and V.M. needed to be protected from Freeman.

            Freeman requested a stay of execution and probation conditioned on his participation in chemical-dependency and sex-offender treatment programs.  Freeman argued that probation was appropriate because he had no criminal history and because the psychologist who had examined him opined that Freeman would be amenable to a supervised program in the community and sex-offender treatment after he completed chemical-dependency treatment. 

            The district court denied Freeman’s request and committed him to the commissioner of corrections for 144 months.  This appeal follows.

D E C I S I O N

Freeman argues that the district court failed to exercise its discretion by failing to “deliberately consider” each of the so-called Trog factors[1] and by failing to consider whether the statutory criteria of Minn. Stat. § 609.342, subd. 3 (2000),[2] had been met.  He contends that his sentence must be vacated and the case remanded for re-sentencing. 

Under the sentencing guidelines, the presumptive sentence is the statutory mandatory-minimum sentence, if any, or the sentence provided by the sentencing guidelines, whichever is longer.  Minn. Sent. Guidelines II.E.  Here, there is a statutory mandatory-minimum sentence of 144 months, which is longer than the guidelines sentence, and, therefore, is the presumptive sentence.  The decision whether to depart from the presumptive sentence is 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 district court must exercise its discretion by deliberately considering arguments for and against departure.  State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984).  Unless a case presents substantial and compelling circumstances warranting a departure, the presumptive sentence will be imposed.  State v. Reece, 625 N.W.2d 822, 824 (Minn. 2001).  If a district court departs from the presumptive sentence, it must articulate the reasons for the departure.  Perkins v. State, 559 N.W.2d 678, 691 (Minn. 1997).  But an explanation is not required if the court considers reasons for departure and nevertheless elects to impose the presumptive sentence.  Curtiss, 353 N.W.2d at 263.  Even if grounds exist that might justify a dispositional departure, this court generally will not interfere with the imposition of the presumptive sentence.  State v. Evanson, 554 N.W.2d 409, 412 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). 

The record does not support Freeman’s assertion that the district court failed to exercise its discretion when it sentenced him.  Before imposing sentence, the court stated (1) that it had read the entire file because it owed it to the state and Freeman to understand the situation fully, (2) that cases such as this one require the court to balance the needs for punishment and rehabilitation, and (3) that it had “wrestled with” the competing arguments before concluding that imprisonment was the appropriate sentence.  The court further stated that punishment by incarceration was warranted because a “14-year-old girl was sexually penetrated by [Freeman] and she will never be the same because of it.”   The court made a considered decision in sentencing Freeman and did not engage in the “mechanical or callous” sentencing that was disapproved of in Curtiss.  353 N.W.2d at 264.  Only in a rare case will we reverse a district court’s imposition of the presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Because the record shows that the district court exercised reasoned consideration and discretion in imposing the presumptive sentence, this is not one of those rare cases.

Affirmed.

  

 



[1] In State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982), the Minnesota Supreme Court provided a non-exclusive list of factors that are relevant in determining whether a defendant is amenable to probation.

 

[2] Minn. Stat. § 609.342, subd. 3, provides that, unless imprisonment is required under section 609.109, the district court may stay execution of the sentence of a person convicted under Minn. Stat. § 609.342, subd. 1(g), if the court finds that “a stay is in the best interest of the complainant or the family unit” and “a professional assessment indicates that the offender has been accepted by and can respond to a treatment program.”