This opinion will be unpublished and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,
Marco Lara Gomez,
Filed October 23, 2007
Stearns County District Court
File No. K6-05-2489
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Janelle Prokopec Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, Room 448, Administration Center, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)
John M. Stuart, State Public Defender, Lydia M. Villalva Lijo, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Klaphake, Judge.
Appellant Marco Lara Gomez challenges his sentence for first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(b) (2004) (sexual penetration with victim aged 13 to 16 where defendant is 48 months older and in position of authority over victim), for sexually abusing his stepdaughter over several years. Appellant argues that expert testimony showing his good prognosis for treatment and a low risk of recidivism, along with his willingness to take responsibility for the offense, supported a downward dispositional departure from the presumptive sentence. Because the district court did not abuse its discretion in sentencing, we affirm.
The district court imposed a 108-month executed sentence, which constitutes a 36-month downward durational departure from the presumptive 144-month sentence. “The purpose of the sentencing guidelines is to establish rational and consistent sentencing standards which reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender’s criminal history.” Minn. Sent. Guidelines I. Whether to depart from the guidelines rests within the district court’s discretion, and this court will not reverse the decision absent a clear abuse of discretion. State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001.)
Appellant claims that the court’s
sentencing decision was an abuse of discretion because he provided substantial
and compelling reasons for a downward dispositional departure that would have
allowed him to enter an individualized treatment program instead of being sent
to prison. Factors for a sentencing
court to consider in determining whether an offender’s particular amenability
to treatment in a probationary setting will justify a dispositional departure
include “the defendant’s age, his prior record, his remorse, his cooperation,
his attitude while in court, and the support of friends and/or family.” State
v. Trog, 323 N.W.2d 28, 31 (
Some of the Trog factors are present in this case. Appellant has cooperated with authorities, demonstrated a good attitude in court, and appears to have the support of friends and family, with the exception of his nuclear family. He also seems to be remorseful, having stated to his probation officer, “It was my fault[;] I sexually abused her[;] I have hurt my step-daughter.” Further, a forensic psychologist who evaluated appellant as a sex offender gave him a low to medium risk of re-offending.
the Trog factors, however, do not
support appellant’s request for a downward dispositional departure. Appellant’s
criminal record includes two misdemeanor offenses involving domestic abuse
within his family: a 1995 conviction for
fifth-degree assault, and a 1995 conviction for violation of an order for
protection. For both of these offenses,
appellant was ordered to participate in anger management counseling, but by his
own admission, he did not complete this counseling.
The district court was aware of all of these factors and noted that this was a “close call.” Because appellant’s criminal history and past conduct do not show that he is particularly amenable to probation and because there were aggravating sentencing factors in this case, the district court properly exercised its discretion in declining to impose a downward dispositional departure from the presumptive sentence.