This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed April 12, 2005
Olmsted County District Court
File No. K9-02-1498
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
James C. Backstrom, Dakota County Attorney, Helen R. Brosnahan, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)
Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
The state appeals from a sentence imposed on respondent Kathryn Lorraine Streiff following her plea to felony criminal vehicular operation. The district court sentenced respondent to a gross misdemeanor sentence of one year, stayed on certain conditions, which represents a downward durational departure from the presumptive felony sentence of one year and one day, stayed. The state argues that the district court abused its discretion by imposing a downward durational departure absent substantial and compelling circumstances.
Because we conclude that the district court did not abuse its discretion, we affirm.
D E C I S I O N
district court’s decision to depart from the presumptive sentence under the
sentencing guidelines is reviewed for an abuse of discretion. State v. Schmit, 601 N.W.2d 896, 898 (
sentencing guidelines contain a non-exclusive list of mitigating factors that
may be used to justify a downward departure, including a catchall factor,
“[o]ther substantial grounds . . . which tend to excuse or mitigate the
offender’s culpability, although not amounting to a defense.”
The state correctly points out that most of the factors on which the district court relied are those traditionally associated with dispositional departures: remorse, character, rehabilitation, amenability to probation, and alteration of lifestyle. See, e.g., State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); State v. Sejnoha, 512 N.W.2d 597, 600 (Minn. App. 1994), review denied (Minn. Apr. 22, 1994); but see Bauerly, 520 N.W.2d at 762-63 (concluding that when imposing durational departure in sentencing for a crime against person, remorse or lack of remorse can relate to seriousness of offense).
sentencing guidelines, while intended to “establish rational and consistent
sentencing standards which reduce sentencing disparity and ensure that
sanctions following conviction of a felony are proportional to the severity of
the offense of conviction and the extent of the offender’s criminal history,”
do not deprive the district court of all discretion in sentencing matters.
Here, we are persuaded that the district court properly considered certain factors that may be atypical of the usual reasons for a downward departure, but which nevertheless are broadly related to distinguishing this offense from the typical offense of this nature. The district court also acknowledged the wishes of the victim in this offense, appellant’s husband, who strenuously opposed both charging appellant and imposition of a felony sentence because he would suffer even greater harm.
victim of an offense has a right by law to submit an impact statement at the
time of sentencing.
very properly ignored the victim’s request not to charge appellant; the state,
and not the victim, has the duty to investigate criminal conduct and file
appropriate charges. Sentencing, and
discretion in sentencing, is reserved to the courts. See State v. Streiff, 673 N.W.2d 831,
Respondent moves for an award of attorney fees incurred in both this appeal and an earlier appeal filed by the state. There might have been a basis for an award of fees in the earlier appeal under Minn. R. Crim. P. 28.04, subd. 2(6) (permitting reasonable attorney fees and costs in state’s appeal of a pretrial order). But the criminal rules do not authorize an award of appellate fees on appeal from a sentence under Minn. R. Crim. P. 28.05. Because this is an appeal from a sentence rather than a pretrial prosecution appeal, appellate fees are not authorized. We therefore deny respondent’s motion for attorney fees.
Affirmed; motion denied.