This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed February 1, 2005
St. Louis County District Court
File No. K7-02-600547
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Alan L. Mitchell, St. Louis County Attorney, Leslie E. Beiers, Assistant County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)
John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Forsberg, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a presumptive guideline sentence imposed for a first-degree controlled-substance offense, appellant argues that the district court abused its discretion by refusing to grant appellant’s motion for a downward dispositional departure. Because we find no abuse of discretion, we affirm.
In May 2002, appellant Christopher Schroeder manufactured methamphetamine and attempted to trade it near Duluth. The police conducted interviews with witnesses and searches of both Schroeder’s residence and the cabin where he manufactured the methamphetamine. The police found 30 grams of methamphetamine, found items used to manufacture methamphetamine, and learned that the Schroeder’s two children were present when he manufactured the methamphetamine.
Schroeder was charged with manufacture of a controlled substance in the first degree under Minn. Stat. § 152.021, subd. 2a (2000); sale of a controlled substance in the first degree under Minn. Stat. § 152.021, subd. 1(1) (2000); possession of a controlled substance in the first degree under Minn. Stat. § 152.021, subd. 2(1) (2000); and endangerment of a child under Minn. Stat. § 609.378, subd. 1(b)(2) (2000).
In November 2003, Schroeder entered into a plea agreement with the state and pleaded guilty to the manufacture of a controlled substance under Minn. Stat. § 152.021, subd. 2a. Under the terms of the plea agreement, the other three counts would be dropped at the time of sentencing, but there was no agreement regarding sentencing.
At the sentencing hearing, Schroeder moved for a downward dispositional departure in sentencing. The district court denied the motion and imposed the presumptive guideline sentence of 110 months executed. This appeal follows.
D E C I S I O N
A district court’s sentencing decision will be overturned only if there is a clear abuse of discretion. State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999). Even when grounds exist that may justify a departure, this court generally will not interfere with the imposition of the presumptive sentence. State v. Evenson, 554 N.W.2d 409, 412 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). It is a “rare case” that warrants reversal of a district court’s refusal to depart from the sentencing guidelines. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
A district court shall impose the presumptive sentence unless the case involves substantial and compelling circumstances that warrant a departure. Minn. Sent. Guidelines II.D. The sentencing guidelines list several mitigating factors that a district court may use to justify a decision to depart downward from the sentencing guidelines. Id. II.D.2.a. But a district court is not obligated to grant a dispositional departure just because a mitigating factor is present. State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).
A dispositional departure in the form of probation, may be imposed instead of an executed sentence if a defendant is particularly amenable to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Amenability to probation depends on numerous factors, including a defendant’s age, prior record, remorse, cooperation, attitude while in court, and the support of friends or family. Id. When considering a dispositional departure, a district court 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).
A district court must exercise discretion by deliberately considering the factors in favor of departure and the factors against departure. State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984). A district court’s failure to do so warrants a remand. Id. Schroeder argues that this case should be remanded because the district court did not deliberately consider on the record the factors favoring departure and the factors against such a departure.
But we find that the record demonstrates that the district court did deliberately consider the appropriate factors. After hearing both counsels’ arguments and reading the file a number of times, the district court carefully considered the “moving” testimony of Schroeder’s friends and family, that he was amenable to probation, and that he admitted that he had a chemical-dependency problem. The district court also considered the seriousness of Schroeder’s offense and the fact that Schroeder had not undertaken any course of chemical-dependency treatment during the eight months that this case had been “hanging over his head.” The district court found Schroeder’s lack of motivation to get into chemical-dependency treatment, even when faced with this criminal case and a CHIPS petition, troubling.
Schroeder also argues that the district court did not deliberately consider all of the possible Trog departure factors, such as his age and his attitude while in court. But we find nothing in the caselaw that Schroeder cites that requires a district court to consider all the possible factors; the only requirement that he points to is that a district court must deliberately consider the factors in favor of departure and the factors against such a departure.
Schroeder further argues that the district court erroneously focused on the fact that Schroeder failed to enter into chemical-dependency treatment before sentencing when he could not afford to pay for it. But even if focusing on Schroeder’s failure to enter into chemical-dependency treatment was error, the district court did not rely solely on this factor to justify imposing the presumptive guideline sentence. The district court also considered the seriousness of the crime.
Because the record shows that the district court deliberately considered several factors in favor of departure and factors against departure, the district court did not abuse its discretion by refusing to grant a downward dispositional departure in sentencing. This is not the rare case that warrants reversal of the district court’s refusal to depart in sentencing. Nor is it a case warranting a remand.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.