This opinion will be unpublished and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,
Brian Charles Calhoun,
Steele County District Court
File No. K4-04-1128
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Douglas L. Ruth, Steele County Attorney, 303 South Cedar,
Charles F. Clippert, Special Assistant Public Defender, Bethel & Associates, 336 North Robert Street, Suite 1600, St. Paul, MN 55101 (for appellant)
Considered and decided by Toussaint, Presiding Judge; Minge, Judge; and Hudson, Judge.
Appellant asserts that the district court abused its discretion by refusing to make a downward durational or dispositional departure from the presumptive sentence for his conviction of first-degree assault. We affirm.
The first issue is whether the district court abused its discretion by refusing to grant a downward durational departure from the presumptive sentence.
Appellate courts review
sentences to determine whether they are “inconsistent with statutory
requirements, unreasonable, inappropriate, excessive, unjustifiably disparate,
or not warranted by the findings of fact issued by the district court.” Minn. Stat. § 244.11, subd. 2(b) (2004). The decision whether to depart from the
presumptive sentence rests within the district court’s discretion and will not
be reversed absent a clear abuse of that discretion. State
v. Trog, 323 N.W.2d 28, 31 (
The district court must
impose the presumptive guidelines sentence unless “substantial and compelling
circumstances” warrant a departure.
Only in limited
circumstances have appellate courts found circumstances substantial and
compelling enough to warrant reversal of a district court’s refusal to depart
from the presumptive sentence. In State v. Hennum, for example, a woman
was convicted of murdering her husband, and the district court imposed the
presumptive sentence. 441 N.W.2d 793, 800
Here, appellant was convicted of both first- and second-degree assault for an incident that took place during a bonfire at his ex-girlfriend’s residence. The district court imposed the presumptive 98-month executed sentence for the first-degree assault conviction. Appellant then moved for a downward durational departure from the 98-month presumptive sentence, but the court concluded that “[t]here is no substantial and compelling circumstance to justify departure, either durationally or dispositionally.”
Appellant challenges the district court’s refusal to
depart durationally because he claims that the victim
was the aggressor. Courts may consider aggression on the part of the victim as a mitigating
The district court considered whether there was aggression and determined that although the victim approached appellant, appellant came to the residence knowing that he was not welcome. As appellant walked up the driveway, several people asked him to leave, including his ex-girlfriend’s new boyfriend, the victim. A fight eventually broke out between appellant and the victim. The record is not clear as to who instigated the fight, but it establishes that appellant stabbed the victim 12 times, nearly killing him.
On this record, it is reasonable to infer that appellant was actually the aggressor. We conclude that the district court did not abuse its discretion by refusing to grant a downward durational departure.
The second issue is whether the district court abused its discretion by refusing to grant appellant’s motion for a downward dispositional departure.
As previously indicated, a district
court’s refusal to grant a downward departure from a presumptive sentence is
reviewed for an abuse of discretion, and it is a rare case that merits reversal of the district
court’s discretionary refusal to depart.
A district court may depart dispositionally from the presumptive
sentence by imposing probation instead of an executed sentence when a defendant
is amenable to probation. Trog, 323 N.W.2d at 31. Amenability to probation depends on numerous
factors, including age, prior record, remorse, cooperation, attitude while in
court, and support of friends and family.
Appellant argues that he is entitled to a remand of his case because the district court failed to deliberately consider the circumstances warranting departure in this case, namely appellant’s age, remorse, family support system, and amenability to probation. But in its order and memorandum of law, the district court specifically considered the Trog factors in favor of and against departure. Although the court recognized that appellant has the support of his friends and family, it also determined that appellant: (1) had “bounced” between his mother’s home and his father’s home because of his reluctance to follow their rules; (2) had a lengthy history of juvenile delinquency and was on juvenile probation when the assault occurred; and (3) was remorseful “for his own circumstance” (conviction and incarceration) and not for the victim’s injuries.
Although the district court acknowledged that some evidence weighed in favor of dispositional departure, it determined that there was substantial evidence against departure. We conclude that the district court did not abuse its discretion by refusing to grant a downward dispositional departure.
 Trog is distinguishable here because it upheld a downward dispositional
departure. 323 N.W.2d at 30-31. The court ruled against the state and
concluded that the district court had acted within its discretion by granting dispositional
departure because of the defendant’s amenability to probation.