This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
State of Minnesota,
Robert Earl Clayborne,
Ramsey County District Court
File No. K8-05-1965
Lori Swanson, Attorney General, 1800
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Michael W. Kunkel,
Assistant Public Defender,
Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
Appellant challenges his sentence for terroristic threats, arguing that the district court erred by failing to exercise its discretion when it denied his motion for a downward dispositional departure. We affirm.
issue in this case is whether the district court erred by failing to exercise
its discretion when it denied appellant Robert Clayborne’s motion for a
downward dispositional departure. Sentences
provided by the Minnesota Sentencing Guidelines are presumptively appropriate
for the crimes to which they are applied.
defendant’s amenability to treatment in a probationary setting may support a
departure. State v. Trog, 323 N.W.2d 28, 31 (
appellant entered an Alford plea to a
charge of terroristic threats for an incident involving his girlfriend. Appellant entered his plea in exchange for
the state’s agreement to withdraw an amended complaint, charging appellant with
the additional offenses of assault and kidnapping. With respect to the threats, the record
indicates that appellant had a knife and threatened to kill his girlfriend. Based on his earlier convictions for
terroristic threats, second-degree assault, false imprisonment, misdemeanor
criminal damage to property, and second-degree cocaine possession, appellant
was assigned a criminal history score of six.
And under the Minnesota Sentencing Guidelines, the crime of terroristic
threats is a severity-level-IV offense.
At his sentencing hearing, appellant moved for a downward dispositional departure on the basis that he is amenable to probation and unamenable to incarceration. Appellant informed the district court that he was “emotional over [the] incident,” was trying to “work things out with the victim,” was under the influence of alcohol at the time of the offense, and had been accepted into the Teen Challenge program, where he hoped to serve at least part of his sentence. The district court recognized that appellant has insight into his actions. But the district court also noted that during appellant’s stayed sentence for a previous conviction, appellant violated his probation on six different occasions. The district court considered appellant’s argument for a stayed sentence, reviewed his record, and concluded that based on the file, a stayed sentence was not justified. The district court denied appellant’s motion for a downward dispositional departure and imposed a 29-month prison term. Based on the record, we conclude that the district court adequately exercised its discretion in denying appellant’s motion.
also contends that he presents a “unique situation,” warranting a dispositional
departure. But a consideration of the Trog factors, particularly appellant’s
prior record, supports the district court’s conclusion. In 2001, appellant was convicted of
terroristic threats after an incident that is factually similar to the incident
resulting in the current conviction. We
conclude that this is not a rare case warranting reversal of the district
court’s refusal to depart. The district
court did not abuse its discretion by denying
appellant’s motion for a downward dispositional departure and imposing a prison sentence that is within the presumptive range.