This opinion will be unpublished and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
Jason Leonard Molacek,
Filed October 4, 2005
Dissenting, Dietzen, Judge
Hennepin County District Court
File No. 03040197
Mike Hatch, Attorney General,
Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for appellant)
Leonardo Castro, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender (for respondent)
Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
The state appeals the district
court’s sentence for Jason Molacek’s conviction of second-degree murder. Between the first and second sentencing
hearing, the Hennepin County District Court, Mental Health Division, committed Molacek
F A C T S
On stipulated facts, the district court found Jason Molacek guilty of second-degree murder for the shooting death of his mother in June 2003. Molacek has a lengthy history of severe and persistent mental illness. He first experienced mental-health problems at the age of six and began mental-health treatment when he was seven. He was nineteen when he broke into his father’s gun cabinet, removed a hunting rifle, and shot his mother. Responding to his mother’s pleas for help, Molacek called 911 and, when the police arrived, he was outside the residence with the gun pointed at his head. About ten weeks later, Molacek’s mother died.
Molacek willingly participated in the police investigation of the shooting. He complied with police direction to put down the gun, and he submitted to custody without incident. In his interview following arrest, he told police that he had planned the shooting throughout the day and had packed his bags to leave home. But he also said that he did not know how it happened, he did not really want to do it, and he did not know why he did it. During a subsequent psychiatric evaluation, Molacek reported that all he could remember about the day was “hearing screaming voices” repetitively saying “do it.”
The state initially charged Molacek with one count of first-degree murder but amended the charge to second-degree murder in violation of Minn. Stat. § 609.19, subd. 1 (2002). In October 2003 Molacek waived his right to a jury trial and submitted the case to the court on stipulated facts. The district court found Molacek guilty of second-degree murder.
the Minnesota Sentencing Guidelines, second-degree murder is a severity level
In December 2003, at the first of two sentencing hearings, defense counsel presented testimony from a psychiatrist who reviewed Molacek’s medical records and twice met personally with Molacek. The psychiatrist’s testimony and written report provided a detailed account of Molacek’s long history of mental illness.
first experienced auditory hallucinations at age thirteen. In April 1999, at age fifteen, he was
Molacek reported to mental-health evaluators that he regularly used marijuana starting in approximately 1999 and that he had also experimented with other drugs. He said that when he used marijuana “the voices would go away but the whispers would increase.” He also experienced impulses to “draw blood” and would cut himself with knives to relieve his symptoms.
In April 2001 Molacek was again hospitalized after having suicidal and homicidal thoughts and taking his parents’ cars without permission. Upon release, Molacek attempted unsuccessfully to live in a group home and then at various shelters. In January 2002 he was admitted to Bar None, a residential treatment program.
While at Bar None, Molacek received continuous treatment and medication and completed his high school degree. He indicated that, although he had occasional episodes at Bar None, he had settled down while living there and liked the structure and definiteness of the program’s policies. When Molacek turned nineteen, county funds were no longer available to pay for his residential treatment. He was discharged and returned to his parents’ residence in March 2003. At the time of his discharge, reports from treating physicians at Bar None stated that Molacek was “in no condition to be discharged from a structured setting” and was “clearly quite a disturbed boy, both from the standpoint of his emerging character disorder and obvious mood disorder.”
Molacek’s behavior began to deteriorate almost immediately upon return to his parents’ residence: about $140 in cash disappeared from the house, Molacek did not honor his 9:00 p.m. curfew, and he began using marijuana daily. The family sought the help of a counselor who recommended stress reduction techniques and another physician who referred Molacek to chemical-dependency group treatment. Approximately four months after leaving Bar None, Molacek shot his mother.
The defense psychiatrist testified that Molacek has bipolar disorder, manifesting in mood swings, mood disturbance, impulse control problems, auditory hallucinations, and delusional thinking. He further testified that Molacek, at the time of shooting his mother, suffered from a simultaneous cannabis or marijuana problem. He referred to this as a “dual diagnosis” where each condition is “feeding on [the] other, so to speak. The mental condition keeps reoccurring and the marijuana use comes in and aids and abets the other condition.” In his evaluation of Molacek, the psychiatrist concluded that Molacek “depersonalize[ed]” his psychotic episodes, and “could never understand what [they were] all about or why they had to occur, but rather experienced matters as though [he was] some type of robotized agen[t] . . . or [was] observing himself doing these acts.”
The defense psychiatrist testified that Molacek’s mental illness was in remission while he remained on medication during his presentence incarceration but that he needed further intensive treatment. He testified that Molacek would be better treated in the mental-health system than in the corrections system, and that Molacek would be vulnerable to physical abuse if imprisoned.
The court also received a report from a state psychologist who reviewed Molacek’s medical records and met with Molacek. The state psychologist similarly concluded that Molacek has a bipolar disorder that manifests in psychotic symptoms. He concluded that Molacek’s action of shooting his mother “could only be motivated by a need to respond to an immediate emotional crisis” and that Molacek was prematurely discharged from Bar None.
the first and second hearings, Hennepin County District Court Mental Health
Division committed Molacek to the
the second sentencing hearing, in December 2004, the Director of Behavioral
Health of the Minnesota Department of Corrections provided detailed testimony on
the mental-health services available to
The probation officer who prepared the presentence-investigation report testified at the second sentencing hearing. He acknowledged that his report had been prepared a year earlier, before Molacek’s commitment, and that he had not reviewed any current reports on Molacek’s condition. But relying primarily on “the offense behavior and those circumstances surrounding [it],” he recommended that Molacek should not receive a downward sentencing departure.
Molacek’s father and his deceased mother’s sister testified at both sentencing hearings. Each strongly supported retaining Molacek in a security hospital instead of prison, stating that they believed Molacek would be vulnerable in prison and needed to be treated in a place where he could not hurt himself or others. Molacek wrote a letter to the court stating that he wanted to be put in a place where trained professionals could look after him and monitor his medications, that he was “very sorry,” and that he had “done the worst possible thing to a loved one” and had to “face the consequ[en]ces of something [he could] bar[e]ly remember.”
At the close of the December 2004 hearing, the district court imposed the presumptive sentence of 306 months with a credit of 559 days of jail time. The court then stayed execution of the sentence and placed Molacek on probation for 30 years subject to a number of conditions. Specifically, the district court required Molacek to comply with all treatment conditions, doctors’ orders, and medication prescriptions. He must also remain law abiding, abstain from the use of drugs and alcohol, and may not possess firearms, knives, or any other weapon. Additionally, the court mandated that the probation officer submit progress reports to the court every six months and inform the court and the county attorney of any potential for discharge from the commitment program before the expiration of Molacek’s 30-year probationary period. The terms of probation expressly provided that, in the event of a possible release, the district court would hold a hearing to review the existing probationary conditions and impose any new conditions warranted by the changed circumstances. The district court explicitly advised Molacek that a violation of any of the conditions, even if it did not constitute a crime, could result in imprisonment.
In the departure report accompanying the sentencing order, the district court provided, as reasons for departure, Molacek’s extreme mental impairment, his remorse, his attitude, his amenability to probation, and the victim statements provided by Molacek’s father and maternal aunt. In comments at the sentencing hearing, the district court also cited, as a basis for departure, Molacek’s age and immaturity, the support of Molacek’s family, the absence of any previous criminal conviction, the fact that Molacek’s extreme mental illness might have constituted a defense to the charge, and Minn. Stat. § 609.1055 (2004), which authorizes alternative placement for offenders with serious and persistent mental illness. The state appeals the dispositional departure.
D E C I S I O N
The Minnesota Sentencing Guidelines establish
presumptive sentences that specify both
the duration and the type of disposition.
The guidelines provide a list of mitigating
and aggravating factors that may constitute substantial and compelling
The record contains ample, unrebutted evidence that Molacek suffers from
an extreme mental impairment originating in early childhood and continuing
through the time of the offense. The
order for Molacek’s commitment as mentally ill and dangerous states that his
bipolar disorder with psychotic features is a substantial disorder of his
thought, mood, and perception, which grossly impairs his judgment, behavior,
capacity to recognize reality, and capacity to reason or understand. Starting in 1999 and continuing through 2003,
his bipolar disorder manifested itself in command hallucinations that he should
kill his parents. The psychiatric
evaluations also refer to Molacek’s repeated use of marijuana and his occasional
use of other drugs. The district court
specifically stated that the voluntary use of marijuana or other drugs does not
support a downward departure. The
psychiatric reports establish, however, that Molacek’s extreme mental
impairment operates in conjunction with and also independently of the drug
abuse. Because Molacek is an
offender who has been diagnosed with an extreme mental illness that persisted
before, during, and after the offense, a substantial and compelling factor
exists that permits the district court to depart from the guidelines
presumptive sentence. See, e.g., State v. Martinson, 671 N.W.2d 887, 891-92 (
The record also supports the district court’s reference to the existence of substantial grounds that, although not amounting to a defense, excuse or mitigate the defendant’s culpability. Molacek reported that he heard voices telling him to “do it” the day before the shooting and that those voices continued with a screaming quality through the next day. Both the defense psychiatrist and state psychologist agreed that Molacek was experiencing manifestations of his bipolar disorder at the time of the shooting. The district court stated at the second sentencing hearing, that there is “no doubt in my mind that his [Molacek’s] act was a product of his mental illness.” The court further stated that “in my experience in criminal law, which began in 1968 . . . this is the most seriously mentally ill defendant I have seen, other than those who were actually found to be not guilty by reason of mental illness.” The record supports the factor that allows a departure for substantial grounds that excuse or mitigate culpability, although not amounting to a defense.
On the third factor, the alternative placement for an offender with serious and persistent mental illness, the district court noted that Minn. Stat. § 609.1055 (2004) expressly permits the imposed dispositional departure and the probationary conditions:
When a court intends to commit an offender with a serious and persistent mental illness . . . to the custody of the commissioner of corrections for imprisonment at a state correctional facility . . . , the court, when consistent with public safety, may instead place the offender on probation . . . and require as a condition of the probation that the offender successfully complete an appropriate supervised alternative living program having a mental health treatment component.
For purposes of section 609.1055, “mental
illness” specifically includes “bipolar disorder.”
addition to the nonexclusive list of departure factors specifically provided in
the guidelines text, cases interpreting the guidelines have developed a supplemental
category of reasons that support dispositional departures. See
State v. Trog, 323 N.W.2d 28, 31 (
criteria include “the defendant’s age,
his prior record, his remorse, his cooperation, his attitude while in court,
and the support of friends and/or family,” Trog,
323 N.W.2d at 31; the defendant’s acceptance of responsibility, cooperation
with the investigation, and positive attitude in court, State v. Hickman, 666 N.W.2d 729, 732 (Minn. App. 2003); the availability
of probationary treatment that is tailored to the defendant, State v. Hennessy, 328 N.W.2d 442, 443
(Minn. 1983); the possibility that treatment and other probationary conditions
will reduce recidivism, State v. Dokken,
487 N.W.2d 914, 917 (Minn. App. 1992), review
denied (Minn. Sept. 30, 1992); State v. Larson, 473 N.W.2d 907, 910
(Minn. App. 1991); the availability of probationary conditions that can assure
the defendant’s supervision and protect the public safety, State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994); and
a defendant’s particular “unamenability” to prison because there is reason to
believe that the defendant will be victimized in prison. Trog,
323 N.W.2d at 31; State v. Wright,
310 N.W.2d 461, 462 (
The record provides specific evidence to support the caselaw criteria that the court relied on as a basis for the dispositional departure. Molacek was nineteen at the time of the offense, had a criminal-history score of zero, was consistently remorseful, fully cooperated with investigating police officers and with the ordered psychological evaluations, and had the support of his family, which included his father and his mother’s sister. The defense psychologist’s recommendation that Molacek could be treated in a residential treatment program was not contested. The district court specifically observed that Molacek’s progress at Bar None and during the initial months of his commitment to the state security hospital further demonstrated that he is willing to participate in treatment and that treatment can be successful. See Trog, 323 N.W.2d at 31 (finding no abuse of discretion by granting dispositional departure when “defendant is particularly suitable to individualized treatment in a probationary setting”).
The state does not specifically contend that the district court imposed a sentence unauthorized by law or that the sentencing factors on which the court relied are not a sufficient basis for a dispositional departure. Instead, the state argues that the sentence represents an abuse of discretion because “the stayed 306-month sentence simply does not address” the concerns of “protecting the public and punishing the defendant.” The state also argues the district court did not properly consider the presentence investigation, which recommended no departure.
address, first, the divergence of the sentence from the recommendation in the
presentence-report recommendation. A
presentence-investigation recommendation does not obligate the district court
to impose a particular sentence or affect its responsibility or discretion in
sentencing. See State v. Park, 305 N.W.2d 775, 776 (
The state’s second and primary argument is that the district court failed to address the concerns of punishing the defendant and protecting the public. The record demonstrates that the district court considered public safety, the gravity of Molacek’s conduct, and his obvious mental illness. The court paid particularly close attention to the danger Molacek posed to the public and himself if left untreated. At the first sentencing hearing, the court specifically referred to its obligation to protect the public, indicating that it intended to structure a sentence that would assure that “Molacek would be in a custodial treatment setting for a length[y] period . . . as long as it takes to enable doctors to arrive at an opinion to a fairly confident degree of medical certainty that if released, he would be no danger to himself or to others.”
The state’s argument suggests that the commitment to St. Peter provides less protection for the public, and, therefore, we should determine that the district court abused its discretion by not committing Molacek to prison. The record does not support this argument.
The commitment law provides a
special procedure for granting full or partial release to any person committed
as mentally ill and dangerous. See
The state’s witness, the current Director
of Behavioral Health for the Minnesota Department of Corrections, testified
that the procedure for release from St. Peter is a very conservative release
structure. This conservative release structure
permits provisional discharge only if the patient is no longer in need of
inpatient treatment and supervision and the
patient is no longer dangerous to the public.
Regardless of whether Molacek remains at the security hospital for the full 306 months that equates to the presumptive sentence, the sentence continues as a potential disposition for the duration of the 30-year stay of execution. As conditions of this stay, the district court ordered that Molacek comply with all treatment conditions, doctors’ orders and medication prescriptions; remain law abiding; abstain from use of alcohol, marijuana, and controlled substances; and possess no firearms, knives, or any other real or replicated weapon. The court also ordered that the probation officer report to the court every six months and provide notice to the county attorney and the court in the event that Molacek was to be considered for discharge from the mentally-ill-and-dangerous commitment before expiration of the 30-year probationary period. Finally, the court stated that, upon notice of a potential or impending release from Molacek’s current high-security, high-intensity treatment program, the district court would review all of the probationary conditions and impose any new conditions that would be appropriate.
district court emphasized that any failure to follow the probationary
conditions would constitute a violation that would result in executing the
prison sentence. The court retains the
authority to revoke probation if Molacek violates the conditions, which include
full participation in treatment. Caselaw
establishes that probation may be revoked when treatment
has failed. State v.
the state, citing State v. Law, 620
N.W.2d 562 (
Unlike the departure in Law, the district court’s dispositional departure for Molacek’s sentence is squarely based on three departure reasons listed in the text of the sentencing guidelines and a number of additional factors identified by caselaw. The state has not demonstrated an abuse of discretion in the district court’s sentence of Molacek.
DIETZEN, Judge (dissenting)
Following his conviction of second-degree murder of his mother, respondent was committed, pursuant to a petition by his family, to the St. Peter Regional Treatment Center (St. Peter RTC), on the basis that he is mentally ill and dangerous. The issue before us on appeal is not whether respondent should continue his treatment for mental illness at St. Peter RTC. Both parties agree that he should. But rather the issue is whether the district court abused its discretion by departing dispositionally from the presumptive executed sentence of 306 months in favor of probation with no provision for additional jail time or imprisonment. In doing so, the district court rejected the state’s objection to a dispositional departure and its recommendation for a dual commitment, i.e., that respondent be committed to St. Peter RTC for treatment; and following his release, that he serve the remainder of his prison sentence. In short, the majority affirms the district court order that respondent only serve 276 days of jail time for second-degree murder. Because respondent should be required to serve the remainder of his prison sentence following his release from St. Peter RTC, I respectfully dissent. Two reasons support this conclusion. First, the sentence improperly denigrates the serious nature of the crime. Second, respondent’s amenability to probation is neither substantial nor compelling.
We review a district court’s
departure from a presumptive sentence for an abuse of discretion. State v.
Garcia, 302 N.W.2d 643, 647 (
The district court’s departure
under these circumstances denigrates the serious nature of the crime. The sentencing guidelines specifically
require that departures from the presumptive sentence be made only in
exceptional cases where substantial and compelling circumstances exist.
Here, respondent was convicted of second-degree murder for the intentional, premeditated, and unprovoked fatal shooting of his mother. At trial, respondent raised no defenses to mitigate the gravity and seriousness of his violent actions. Society has construed murder as the ultimate offense and, accordingly, has demanded the most severe punishment for such violent acts—a mandate reflected in our sentencing guidelines. The district court’s denial of prison time ignores the severity of this crime and disregards critical penal objectives creating a level of disproportionality that this court has previously rejected.
The stay of sentence under the circumstances of this case tends to defeat the rule of law, offending the maxim attributed to Oliver Wendell Holmes, Jr., that “the law must keep its promises.” While we view rehabilitation as one of the primary purposes of criminal justice, we cannot disregard the equally important goals of deterrence of the individual, of others, and even retribution.
State v. Law, 620 N.W.2d 562, 565-66 (Minn. App. 2000) (citations omitted.)
Here, no substantial and compelling circumstances exist in the record that demonstrate respondent should not be required to serve any prison time. Upon his release from St. Peter’s RTC, respondent should be required to serve the remainder of his sentence.
The district court concluded that respondent was amenable to probation based on his age and immaturity, lack of a criminal record, family support, and mental illness. It reasoned that respondent was amenable to probation because he would do better in a treatment setting at St. Peter RTC than the state prison. But neither the expert testimony nor the district court concluded that treatment at St. Peter RTC will result in a permanent improvement in respondent’s mental illness or that he will be rendered less dangerous. In essence, the district court merely concluded that St. Peter RTC would provide better treatment opportunities, i.e., that respondent would be more comfortable.
But the purpose of probation
is not that respondent be more comfortable.
Rather, its purpose is to “produce a law-abiding citizen and at the same
time to protect the public against continued criminal or antisocial behavior.” State
v. Haynes, 423 N.W.2d 102, 104 (
Respondent has been continuously yet unsuccessfully treated for his mental health issues since a young age. The psychiatrist retained to examine respondent testified that he was uncertain regarding respondent’s ability to function outside of a controlled-treatment setting. In fact, the record reveals that any periods of remission of respondent’s mental illness have been short-lived and were followed by more serious symptoms, particularly during the transition from a controlled-treatment setting into the community. The murder of respondent’s mother occurred mere months after release from Bar None treatment facility.
The record also fails to
support a finding that respondent would be particularly vulnerable if
incarcerated. The psychiatrist conceded
that respondent is no more immature than most prison inmates in respondent’s
age range. A Department of Corrections
official testified that approximately 25% of
In short, respondent’s amenability to probation is neither substantial nor compelling. At the time of sentencing, respondent posed a high risk of reoffending, and treatment will not eliminate this risk.
The defense argued, and the district court agreed, that Minn. Stat. § 609.1055 (2004) justifies probation for respondent. The statute does allow the district court to order probation instead of an executed sentence for offenders with a mental illness provided that the offender meets the traditional requirements of probation and that public safety be protected. See id.
Here, the record does not support either conclusion. Respondent does not meet the traditional requirements of probation for the reasons previously stated. As to public safety, the district court recognized the risk that respondent could undergo a relatively rapid recovery and be released from St. Peter’s RTC, but failed to provide for public safety upon his release. Clearly, the potential exists that respondent will be released within one year and have no probationary conditions that protect the public.
While it is true that the
district court could conduct a hearing upon respondent’s release to determine
other conditions of probation, the court may not have the authority to order
additional jail time or imprisonment.
Minnesota Rule of Criminal Procedure 27.03, subd. 9, allows a court to
“modify a sentence during either a stay of imposition or stay of execution” but
not to increase the “period of confinement.”
But whether modifying the sentence by adding probationary prison time as
a condition of probation would be an increase in the “period of confinement”
does not appear to have been decided.
The cases that have dealt with increases in the “period of confinement”
have involved increases in the prison sentence itself. See,
e.g., State v. Walsh, 456 N.W.2d 442 (
Consequently, the potential exists that respondent will undergo a rapid recovery and be released in less than one year. At that time, it is uncertain whether the district court could add jail time or imprisonment as a condition to respondent’s probation. In that circumstance, respondent would have served no additional jail time or imprisonment, and the court may lack the ability to protect public safety.
Because of the serious nature of the crime, respondent’s lack of amenability to probation, and the presence of considerable public safety concerns, I would reverse the district court’s dispositional departure from the presumptive executed sentence of 306 months and remand for resentencing.
 At sentencing, the district court credited respondent with 559 days of jail time. The record shows that at that time respondent had been in jail for 276 days and at the St. Peter RTC 273 days.
 Originally, the state intended to charge appellant with first-degree murder, but in acknowledgement of respondent’s mental illness, reduced the charge to second-degree murder in a Lothenbach trial.