This opinion will be unpublished and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
State of Minnesota,
Affirmed; motion denied
Dakota County District Court
File No. K5042154
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
James C. Backstrom,
Deborah Ellis, 700
Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*
Appellant, who was convicted of first-degree criminal sexual conduct based on evidence that he engaged in sexual contact with his former girlfriend’s daughters when they were under the age of 16, challenges the district court’s denial of his motion for a downward sentencing departure. Appellant argues that because the district court acknowledged that he established mitigating factors, the district court abused its discretion and violated his Sixth Amendment rights by failing to grant a downward departure. Because we conclude that the district court did not abuse its discretion or violate appellant’s constitutional rights by imposing the presumptive sentence, we affirm.
The state charged appellant Charles Riedel with two counts of first-degree criminal sexual conduct, based on allegations that he had engaged in sexual contact with his former girlfriend’s two daughters between 1995 and 1997, when the girls were approximately 12 and 14. One of the girls reported the abuse in March 2004. She indicated that her mother, Margaret Simbeck, had acquiesced and also participated in the abuse.
Because the state did not charge Simbeck at the time it charged Riedel, Riedel moved to dismiss the charges against him, alleging that he had been singled out for prosecution because of his gender, in violation of his due-process and equal-protection rights. Following Riedel’s motion, the state charged Simbeck with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g) (2004). The district court subsequently denied Riedel’s motion to dismiss, concluding that he had failed to establish a claim for selective prosecution. Riedel then submitted the case to the court on the record.
The district court found Riedel guilty of two counts of first-degree criminal sexual conduct but dismissed one count pursuant to the parties’ agreement. The district court found that Riedel, with Simbeck’s acquiescence, engaged in vaginal and oral sex with Simbeck’s 12- and 14-year-old daughters over an extended period. The court also found that Simbeck actively participated in the abuse and that, on at least five occasions, she watched while Riedel had oral sex and sexual intercourse with her daughters.
Riedel moved for a downward dispositional sentencing departure. The court denied the motion and sentenced Riedel to the presumptive guidelines sentence of 86 months. In her separate prosecution, Simbeck pleaded guilty to the charge against her and was sentenced under a plea agreement to a stayed 86-month sentence with conditions. This appeal by Riedel followed.
D E C I S I O N
Riedel first argues that because he established that (1) he is
amenable to probation and outpatient treatment and (2) the offense occurred ten
years ago while he was suffering from a substance-abuse problem, the district
court abused its discretion by denying his motion for a downward dispositional
departure. Riedel implies that the
presence of mitigating factors compel a downward departure. We disagree.
We review the district court’s
decision on departure from the presumptive sentence for abuse of
discretion. See Rairdon v. State, 557 N.W.2d 318, 326 (
Before imposing the presumptive sentence, the district court
considered two psychosexual evaluations of Riedel. Based on those evaluations, the district court
found that Riedel is amenable to treatment.
But the court concluded that Riedel’s amenability to outpatient treatment
is not substantial and compelling enough to outweigh the severity of the
offense and warrant a downward dispositional departure. When there are both mitigating and
aggravating factors, the decision whether to depart is entirely within the
district court’s discretion.
Riedel next argues that the district
court incorrectly focused on the severity of the offense in deciding not to
depart dispositionally. According to
Riedel, the decision to depart dispositionally must focus on the defendant’s
amenability to treatment and probation rather than on the severity of the
offense. But under
Riedel also argues that the district
court improperly considered elements of the underlying offense as aggravating
factors. But while a sentencing court
may not base an upward durational departure on factors that the legislature has
already taken into account in determining the degree or seriousness of the
offense, the court may consider the conduct underlying the offense and the
presence of aggravating factors when imposing the presumptive sentence. See
Riedel also argues that the district
court violated Blakely by finding
aggravating factors. See Blakely v. Washington, 542
Riedel also argues that he is entitled to a downward dispositional departure because he was subjected to selective prosecution and disparate gender-based treatment in sentencing that undermines the rationality of his sentence. Riedel specifically argues that he is entitled to a dispositional departure because the state manipulated the victims’ wishes by charging Simbeck with only criminal sexual conduct against one daughter, who did not want Simbeck prosecuted.
To establish a claim of selective discriminatory
prosecution, a defendant has the burden of proving that others similarly
situated were not prosecuted and that the defendant was singled out for
prosecution based on race, religion, or other improper considerations.
Similarly, Riedel is not entitled to a stayed sentence simply
because Simbeck received a stayed sentence.
See State v. Vazquez, 330
N.W.2d 110, 112 (
The state moved to strike portions of Riedel’s brief, appendix, and supplemental record, arguing that they contained matters outside the record on appeal and should not, therefore, be considered. The challenged documents relate to Simbeck’s case. Although not part of the record in Riedel’s case, the documents are public records and may therefore be submitted for consideration in this case. See In re Estate of Turner, 391 N.W.2d 767, 771 (Minn.1986) (stating that “we see no reason why a party may not submit . . . a [public] report to us as part of its brief when we could refer to such a report in the course of our own research, if we were so inclined”). Accordingly, the state’s motion is denied.
Affirmed; motion denied.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.