This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,


Lennon Virgil Hughart,


Filed April 11, 2006

Reversed and remanded

Wright, Judge


Goodhue County District Court

File No. K7-03-1428



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


Stephen N. Betcher, Goodhue County Attorney, Erin L.K. Schmickle, Assistant County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN  55066 (for appellant)


Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN  55101 (for respondent)



            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.



U N P U B L I S H E D  O P I N I O N



Appellant State of Minnesota challenges the district court’s imposition of a sentence that constitutes a downward dispositional departure, arguing that the district court impermissibly relied on victim-related factors and social factors to support its determination that substantial and compelling circumstances justify the departure.  Because the district court’s findings are insufficient to facilitate effective appellate review, we reverse and remand.


In July 2003, respondent Lennon Hughart called the younger sister of one of his friends and asked her to meet him to smoke marijuana.  The girl, who had just turned 12 years old, agreed to meet Hughart at his home.  The two smoked marijuana together, drove around, and then had sex.  Hughart was 21 years of age.  A jury subsequently convicted Hughart of first-degree criminal sexual conduct, a violation of Minn. Stat. § 609.342, subd.1(a) (2002),[1] second-degree criminal sexual conduct, a violation of Minn. Stat. § 609.343, subd. 1(a) (2002),[2] and contributing to the delinquency of a minor, a violation of Minn. Stat. § 260B.425 (2002).[3]

            The defense moved for downward durational and dispositional departures, arguing that Hughart is particularly amenable to probation and that he lacked substantial capacity for judgment at the time of the offense under the Minnesota Sentencing Guidelines.  Minn. Sent. Guidelines II.D.2(a)(5) (amenability to probation), II.D.2(a)(3) (substantial capacity for judgment).

            The district court found that section II.D.2(a)(3) did not apply but granted the defense motion for a dispositional departure under section II.D.2(a)(5).  The district court imposed the presumptive 144-month sentence for the first-degree criminal sexual conduct conviction but stayed execution of the sentence and placed Hughart on probation.  The district court imposed the presumptive 21-month sentence for the second-degree criminal sexual conduct conviction to be served concurrently but again stayed execution of the sentence.  The district court imposed a fine for the conviction of contributing to the delinquency of a minor.  This appeal followed. 


The state argues that the district court impermissibly relied on victim-related factors and social factors when it found substantial and compelling circumstances to justify its departure.  In addition, the state maintains that, even if the district court relied on amenability to probation, a permissible factor, the record does not support a finding that Hughart is amenable to probation.

            On appeal, we review the district court’s decision to depart from the presumptive guidelines sentence for an abuse of discretion.  State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).  Unless a case involves substantial and compelling circumstances warranting a departure, a district court should impose the presumptive guidelines sentence.  Minn. Sent. Guidelines II.D.  “When departing from the presumptive sentence, a judge must provide written reasons which specify the substantial and compelling nature of the circumstances” justifying the departure.  Minn. Sent. Guidelines II.D.  The district court also must articulate reasons for the departure on the record at the sentencing hearing and in its departure report.  Williams v. State, 361 N.W.2d 840, 843-44 (Minn. 1985).  When sentencing a defendant for criminal sexual conduct, a district court “may depart dispositionally from the presumptive sentence and place the defendant on probation only if the defendant is particularly amenable to probation or if offense-related mitigating circumstances are present.”  State v. Love, 350 N.W.2d 359, 361 (Minn. 1984). 

            At the sentencing hearing, the district court first described certain factors that it believed mitigated Hughart’s culpability.  Specifically, the district court stated:

[I] would be remiss in not drawing attention to the fact that in this case the defendant and the victim, the victim’s sister who testified at trial, are all products of a very similar environment.  It’s an environment which has been created largely because of an inordinate amount of money made available.  And again, I heard this firsthand from the testimony at trial in the summer of ’03, a lot of unsupervised free time for young people.  And I want to make it clear that this is something that cuts across any type of racial line or otherwise.  It’s not speaking to any type of particular culture.  It speaks to young people that, as I said, have access to a lot of money and a lot of free time regardless of age and ability to handle it wisely.  With those circumstances come the inevitable presence of drugs.  And I listened to the testimony that the activity of the day, and of the week, and of the month would be to get high and hang out.  Either drink, smoke, ingest in some way or another.

            Well you don’t have to be . . . a whiz to contemplate what comes out of those kinds of circumstances.  Certainly sexual behavioral, wrongful sexual behavior, sometimes violent but certainly not appropriate sexual behavior, is going to occur given those circumstances.  And I think ultimately that’s, to a large extent, what came about here.


. . . .


[I]t appeared rather clearly that the victim in this instance found that her direction was to follow that of her sisters, hang out with them, and I can only assume partake in the same social agenda that I described earlier.  And again, I believe that this background, this context if you will, is the one in which the defendant and the victim in this case got together one early morning and the defendant committed the illegal act.

            And I, as a result of that, have come to the conclusion that . . . there are substantial grounds which mitigate the offender’s culpability. Although certainly not arising to the legal defense for what the defendant did.


But a district court may not rely on social or economic factors to justify a sentencing departure.  Minn. Sent. Guidelines II.D.1; see also State v. Solomon, 359 N.W.2d 19, 22 (Minn. 1984) (noting that social and economic factors may not be considered except indirectly as part of an amenability to probation analysis).  We, therefore, agree with the state that the district court’s discussion of the social and economic environment on the Prairie Island Indian Reservation, as well as the district court’s reference to the victim modeling her older sisters’ behavior, was improper. 

            Despite these improper references, we have the authority to affirm the district court’s sentencing departure if the district court clearly articulates a proper alternative basis for departure.  State v. Dixon, 415 N.W.2d 414, 418 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988).  After the above comments about the social environment in which Hughart committed the offenses, the district court continued:

Now, there is a divergence of opinion about the defendant’s ability to be successful at treatment, to be amenable to probation.  And I’ve gone back and reread and tried to assess as best I can the psychological or psychosexual evaluations that have been done, and again fall back on just a gut instinct of my own observations of the defendant in my courtroom, but also what has been reported to me as his conduct while on release or/and including while he’s been incarcerated.

Giving consideration to all that, then I go back to what I stated earlier about my goal to treat the defendant in light of my view of him as others of those who have been convicted of criminal sexual conduct in the first degree.  And in, again, the large majority of those cases, those individuals who have come before me have been given the opportunity to prove that they are amenable to treatment and the[] execution [of their sentence] has been stayed. 

So with that being said, for these reasons I do find that there are substantial and compelling circumstances for departing from the presumed sentence of one hundred forty four months.


Hughart argues that this passage indicates that the district court clearly intended to depart on the basis of the Hughart’s amenability to probation. 

            A defendant’s amenability to probation can supply a sufficient basis for departure.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); State v. Donnay, 600 N.W.2d 471, 474 (Minn. App. 1999), review denied (Minn. Nov. 17, 1999).  In Trog, the Minnesota Supreme Court highlighted several factors relevant to a determination of amenability to probation, including the defendant’s age, prior record, remorse, and attitude in court.  323 N.W.2d at 31.  The factors listed in Trog are not exclusive, and the district court need not recite findings as to each Trog factor on the record.  State v. Hickman, 666 N.W.2d 729, 732 (Minn. App. 2003).  But here, the district court articulated no clear evidentiary basis for a finding that Hughart is amenable to probation, and indeed, never made an explicit finding to that effect. 

As the district court noted, the record contained evaluations with contradictory assessments of Hughart’s amenability to probation.  The district court did not adopt either evaluation but simply stated that Hughart should be given the opportunity to prove his amenability.  The record here stands in contrast to that of State v. Brown, in which the district court expressly adopted a party’s departure memorandum as the basis for its decision to depart.  455 N.W.2d 65, 71 (Minn. App. 1990), review denied (Minn. July 6, 1990).  As such, the record before us is insufficient for meaningful appellate review.  Because the district court may consider a host of factors as part of its analysis of a defendant’s amenability to probation, we require clear, explicit findings of fact to facilitate appellate review.  See, e.g., State v. Heywood, 338 N.W.2d 243, 243 (Minn. 1983) (considering defendant’s passive role and that offense was first felony in examining amenability to probation); Trog, 323 N.W.2d at 30 (considering, among other factors, family and community support in determining amenability to probation); State v. Wright, 310 N.W.2d 461, 462 (Minn. 1981) (discussing defendant’s high risk for abuse in prison in evaluating amenability to probation).

The Minnesota Sentencing Guidelines require specific findings that “demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence.”  Minn. Sent. Guidelines II.D.  In State v. Garrett, we reversed a district court’s upward departure for insufficient findings.  479 N.W.2d 745, 749 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).  There, the state argued that the reasons for the departure “were made sufficiently clear in the prosecutor’s departure memorandum and in the ensuing argument before the court.”  Id.  Hughart advances the same argument here, reasoning that the district court implicitly agreed with his submissions and arguments at the sentencing hearing.  As in Garrett, this argument is unavailing.  The sentencing guidelines and our precedent require the district court to “make its own findings.”  Id.  Accordingly, we reverse the dispositional departure imposed by the district court.

We next consider the question of remedy.  The state argues that the absence of clear findings in this case compels us to impose the presumptive sentence, an executed term of 144 months’ imprisonment.  The state cites Williams, in which the Minnesota Supreme Court articulated the following general rules:

1. If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.

2. If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.

3. If the reasons given justify the departure, the departure will be allowed.

4. If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.

5. If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.


361 N.W.2d at 844.  The supreme court recently reaffirmed the first Williams rule, making clear that, when a district court offers no reason for a departure at the time of sentencing, the departure will be reversed and the presumptive sentence imposed.  Geller, 665 N.W.2d at 517.  It is important to note, however, that the rules in Williams, as reaffirmed by Geller, developed from upward-departure cases.  See, e.g., Id.; State v. McAdory, 543 N.W.2d 692, 698 (Minn. App. 1996); State v. Hopkins, 486 N.W.2d 809, 812 (Minn. App. 1992); State v. Sundstrom, 474 N.W.2d 213, 216 (Minn. App. 1991); State v. Pieri, 461 N.W.2d 398, 401 (Minn. App. 1990); State v. Synnes, 454 N.W.2d 646, 647 (Minn. App. 1990), review denied (Minn. June 26, 1990); State v. Thompson, 414 N.W.2d 580, 584 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988); State v. Gunderson, 407 N.W.2d 143, 145 (Minn. App. 1987); Williams, 361 N.W.2d at 844.

We do not agree with the state’s argument that we must impose the presumptive sentence.  First, this is not an upward-departure case.  Second, this is not a case in which the district court simply imposed a departure without reason.  The sentencing transcript before us falls somewhere between the fourth and fifth Williams rules.  361 N.W.2d at 844.  The district court offered two reasons for departure, one improper and one proper.  We cannot effectively evaluate whether the evidence in the record is sufficient to justify the departure as required by Williams because, although the district court mentioned amenability to probation, the district court never articulated an evidentiary basis for that finding.  It is unclear to us whether the district court relied on its observations of the defendant in court, the defendant’s behavior on probation and release, the report of a defense expert, the district court’s sentencing practice in prior cases involving the same offense, or a combination of these and other unknown factors.  As such, we require additional findings of fact from the district court. 

  Since Geller was decided, district courts have not been permitted to articulate new findings justifying sentencing departures on remand.  See, e.g., State v. Richardson, 670 N.W.2d 267, 285 (Minn. 2003).  The Minnesota Supreme Court’s reluctance to allow this practice is eminently logical in the context of an upward departure.  A defendant receiving a sentence that is longer or more severe than that presumed under the law deserves an explanation at the time the sentence is imposed so as to ensure compliance with the sentencing guidelines in a manner that protects the defendant’s rights.  See generally State v. Haas, 280 Minn. 197, 200-01, 159 N.W.2d 118, 121 (Minn. 1968) (holding that any reasonable doubts concerning interpretation of penal statutes be resolved in favor of defendant).  Accordingly, when a district court fails to give reasons for an upward departure at the time of the sentencing hearing, we impose the presumptive sentence.  See, e.g., State v. Rannow, 703 N.W.2d 575, 580 (Minn. App. 2005).

In the context of a downward dispositional departure, however, equitable principles produce the opposite result.  Our duty as an appellate court demands that we reverse for insufficient findings when we cannot fulfill our reviewing role, but consideration of the district court’s opportunity to observe the defendant and the entire trial demands that we allow the district court to articulate its rationale for a downward dispositional departure on remand.  See generally State v. Dokken, 487 N.W.2d 914, 918 (Minn. App. 1992) (“[T]o . . . reverse a dispositional downward departure and institute a . . . presumptive sentence is a weighty and grave matter for an intermediate appellate court. We have the authority . . . but the action is drastic.”), review denied (Minn. Sept. 30, 1992).  This conclusion is consistent with the statute granting us authority to review criminal sentences on appeal.  We may “dismiss or affirm the appeal, vacate or set aside the sentence imposed or stayed and direct entry of an appropriate sentence or order further proceedings . . . .”  Minn. Stat. § 244.11, subd. 2(b) (2004).  Moreover, in the context of a downward dispositional departure, we are aware of no precedent proscribing a remand to address the insufficiency of findings.

Because the district court’s findings are insufficient to facilitate effective appellate review, we reverse Hughart’s sentence and remand for resentencing consistent with this opinion. 

Reversed and remanded.

[1] Minn. Stat. § 609.342, subd.1(a) (2002) provides:

A person who engages in sexual penetration with another person, or in sexual contact with a person under 13 years of age . . . is guilty of criminal sexual conduct in the first degree if any of the following circumstances exists:

(a) the complainant is under 13 years of age and the actor is more than 36 months older than the complainant. Neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense[.] 

[2] Minn. Stat. § 609.343, subd. 1(a) (2002) provides:

A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the second degree if any of the following circumstances exists:

(a) the complainant is under 13 years of age and the actor is more than 36 months older than the complainant. Neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense. In a prosecution under this clause, the state is not required to prove that the sexual contact was coerced[.]

[3] Minn. Stat. § 260B.425, subd. 1(a) (2002) provides: “Any person who by act, word, or omission encourages, causes, or contributes to delinquency of a child or to a child’s status as a juvenile petty offender, is guilty of a gross misdemeanor.”