This opinion will be unpublished and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
Dale A. Hessler,
Filed July 18, 2006
Toussaint, Chief Judge
Mike Hatch, Attorney General, 1800
Alan L. Mitchell,
John M. Stuart, State Public Defender, Philip Marron,
Assistant Public Defender,
Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Harten, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant argues that the district court abused its discretion by denying his motion for a downward dispositional departure.
court has no discretion to depart from the sentencing guidelines unless
aggravating or mitigating factors are present.”
A district court
may choose to depart from the presumptive guidelines sentence by imposing
probation instead of an executed sentence when a defendant is amenable to
probation. State v. Trog, 323 N.W.2d 28, 31 (
Here, appellant was convicted of first-degree criminal sexual conduct for an incident involving his four-year-old granddaughter. He moved for a dispositional departure on the basis that (1) he took full responsibility for the offense; (2) he expressed remorse; (3) he wanted treatment; (4) he could be accepted in the Northeast Regional Correction Center (NERCC) sex-offender treatment program with several conditions; and (5) he was at a critical stage in his life during which treatment would be helpful.
The district court heard and considered testimony from Dr. Stephen Olmsted, the clinical psychologist who evaluated appellant; NERCC Superintendent Warren L. Salmela; and Charlene Appelwick, the probation officer who conducted appellant’s presentence investigation report. Dr. Olmsted testified that appellant needed more than one year of treatment at NERCC, but Salmela testified that commitments of longer than one year violated NERCC’s license and that NERCC was overcrowded. NERCC’s staff also evaluated appellant and recommended that he participate in at least two years of actual treatment. Appelwick testified that NERCC, among other options, would be an appropriate placement for appellant’s treatment needs but specifically did not recommend a dispositional departure. She testified that while appellant’s chances for treatment would be reduced in prison, she could not say that appellant would absolutely be denied treatment if an executed prison sentence were imposed. Given this record, the district court did not abuse its discretion by imposing the presumptive sentence.
Appellant also argues that the district court erred by imposing the presumptive sentence without making written or oral findings.
“Even where grounds
exist justifying departure, an appellate court will not ordinarily 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). Written findings are not required when a district court
imposes the presumptive sentence after considering reasons to depart. State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984); see also Minn. R. Crim. P. 27.03, subd. 4(C)
(requiring findings to support a departure). “The sentences provided in the Sentencing
Guidelines Grid are presumed to be appropriate for every case.”
Here, the district
court convened a hearing, considered the evidence, concluded that no
“substantial or compelling facts” existed for a downward dispositional
departure, and ordered the presumptive sentence orally on the record. This clearly satisfied the requirements of
sentencing. We note that appellant’s
authorities to the contrary are inapposite as they pertain only to probation
revocations, not sentencing hearings. See State v. Austin, 295 N.W.2d 246, 250
Appellant argues that the district court erred by imposing a ten-year conditional release period rather than a five-year conditional release period under Minn. Stat. § 609.109, subd. 7(a) (2004).
This court may
review a sentence to determine whether it is “inconsistent with statutory
requirements” and may direct entry of an appropriate sentence. Minn. Stat. § 244.11, subd. 2(b)
(2004). Whether the district court
properly construed a sentencing statute is a question of law subject to de novo
review. State v. Wukawitz, 662 N.W.2d 517, 525 (
Appellant was on probation for a felony incest conviction under Minn. Stat. § 609.365 (1998) when he was convicted of first-degree criminal sexual conduct under Minn. Stat. § 609.342. At sentencing for the criminal-sexual-conduct offense, the district court considered the prior felony-incest conviction and imposed a ten-year conditional release period pursuant to the following conditional release statute:
If the person was convicted for a violation of section
609.342, 609.343, 609.344, or 609.345, the person shall be placed on
conditional release for five years . . . .
If the person was convicted for a violation of one of those sections
after a previous sex offense conviction [defined as “a violation of sections
609.342 to 609.345 or any similar statute
Minn. Stat. § 609.109, subds. 5, 7(a) (2004).
argues that the felony incest statute is not “any similar statute” as used in
the conditional release statute. For
the ten-year period to apply, incest must be “similar” to the criminal-sexual-conduct
statutes. Clearly, incest is a sex
offense. See Minn. Stat. § 609.365 (“Whoever has sexual intercourse
with another nearer of kin to the actor than first cousin, computed by rules of
the civil law, whether of the half or the whole blood, with knowledge of the
relationship, is guilty of incest . . . .”).
Incest also has some of the same elements as the criminal-sexual-conduct
offenses enumerated in the conditional release statute. Compare
Here, the underlying
facts of appellant’s incest conviction could have supported a conviction of
criminal sexual conduct. See Minn. Stat. § 609.344, subd.
1(e), (f), .345, subd. 1(e), (f) (defining offenses in which perpetrator has
“significant relationship” or was in “position of authority” over complainant). He was convicted of incest after he had
sexual intercourse with a 16-year-old boy who was his purported son. Although he was charged with and convicted of
incest, he could have been charged with third- or fourth-degree criminal sexual
Finally, if incest
is not an offense “similar” to criminal sexual conduct, it is unclear what
would be “similar.” Appellant argues
that when interpreting a penal statute the rule of strict construction applies
and any reasonable doubts are to be resolved in favor of the defendant.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.