This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


Eileen Carol Klinghagen,



Filed December 4, 2007


Lansing, Judge



Kandiyohi County District Court

File No. 34-K4-03-1202



Boyd Beccue, Kandiyohi County Attorney, Dain Olson, Assistant County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN 56201 (for appellant)


John Stuart, State Public Defender, Suzanne Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for respondent)



            Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            In this appeal from the reimposition of Eileen Klinghagen’s original sentence on remand, the state argues that an intervening warrant executing Klinghagen’s sentence precludes the reimposition of the original stayed sentence.  Alternatively, the state argues that the record does not support a downward dispositional departure.  Because the district court did not effectively execute Klinghagen’s sentence and because the record on remand supports the district court’s downward dispositional departure, we affirm.


            A jury found Eileen Klinghagen guilty in June 2004 of fleeing a peace officer; obstructing legal process; second-, fourth-, and fifth-degree assault; and two traffic violations.  The charges stemmed from a police officer’s attempt to serve Klinghagen with an eviction summons and complaint.  Klinghagen drove her car toward the officer, forced him to step into a ditch to avoid being hit, and then drove away.  When the officer and another sheriff’s department employee attempted to take Klinghagen into custody, she attempted to bite them. 

Following Klinghagen’s conviction, the district court sentenced her to twenty-one months and granted a downward dispositional departure by staying the execution of her sentence and placing her on probation for five years on specified conditions.  The district court gave two reasons for the downward departure:  “diminished emotional capabilities of the defendant and the hope that the defendant is amenable to the less restrictive probationary conditions.”      

The state appealed, arguing that the sentencing departure was an abuse of discretion.  State v. Klinghagen, No. A05-1420, 2006 WL 2598012, at *3 (Minn. App. Sept. 12, 2006).  The state’s argument prevailed.  Because diminished emotional capacity does not constitute a substantial and compelling ground for departure and because the record, at that time, did not support a finding that Klinghagen was amenable to probation, we reversed and remanded for resentencing.  Id. at *4-*5. 

            While the first appeal was pending, the district court determined that Klinghagen had violated the terms and conditions of her probation.  Following that determination the district court admonished Klinghagen that the stay of execution would be vacated and that Klinghagen would be committed to the custody of the commissioner of corrections with a reporting date two months in the future.  But the district court also told Klinghagen that if she completed at least fifty percent of the overdue community-service work, which she had been required to complete as a condition of her initial probation, the district court would “consider staying or delaying further reporting.”  The judge signed a warrant of commitment that revoked the stay of execution but wrote on the face of the warrant that the sentence “may be deferred.” 

            Ten months after the violation hearing, the district court held a resentencing hearing in response to the remand on the first appeal.  The district court found that, since the time of the violation hearing, Klinghagen had “by and large” completed the conditions of probation.  Based on Klinghagen’s compliance with the probationary conditions and the further finding that, at the time of the offense, Klinghagen “lacked substantial capacity for judgment,” the district court reimposed the original sentence that stayed execution of the twenty-one-month sentence on specified conditions.  This appeal follows.



            In this second appeal, the state contends that the district court executed Klinghagen’s sentence when it signed the warrant of commitment revoking the stay of execution and could not thereafter reinstate probation because the commissioner of corrections, not the district court, had jurisdiction over the conditions of Klinghagen’s sentence.  Alternatively, the state contends that the district court again abused its discretion by departing downward from the presumptive guidelines sentence without a basis for the departure. 


The state maintains that following the violation hearing, the district court executed Klinghagen’s sentence and the district court’s statement that it would “consider staying or delaying further reporting” if Klinghagen completed fifty percent of her overdue community-service work was an unauthorized condition of Klinghagen’s incarceration.  We reject the state’s argument for two reasons. 

First, Klinghagen’s sentence was not actually executed.  Although the district court admonished Klinghagen following the hearing that it intended to execute the warrant, the court also told Klinghagen that it would consider staying or delaying further reporting and memorialized that condition on the face of the warrant by specifically noting that the sentence “may be deferred.”  Because the activation of the warrant was contingent on Klinghagen’s performance of the probationary conditions, the practical effect of the penalty for the probation violation was that Klinghagen was continued on probation subject to her completion of half her community service.  Consistent with that status, the prison-reporting date passed without the state or the commissioner of corrections attempting to take Klinghagen into custody.  Based on the judge’s notation on the face of the warrant of commitment that the commencement of the sentence “may be deferred,” the participants in the sentencing process apparently had a common understanding that Klinghagen would not be required to report to prison until the district court took further action.  Klinghagen complied with the district court’s conditions, and her sentence was not executed.  Because her sentence was never executed, the district court did not impose any improper conditions of incarceration. 

            Second, even if the language in the warrant resulted in a conditional execution of Klinghagen’s sentence, the conditions did not amount to conditions that would affect Klinghagen once she was incarcerated.  It is well established that conditions of confinement, such as conduct, instruction, discipline, and employment regulation, may only be imposed by the commissioner of corrections.  State v. Cook, 617 N.W.2d 417, 420-21 (Minn. App. 2000), review denied (Minn. Nov. 21, 2000).  But, in this case, the conditions only determined whether the warrant would be activated and whether Klinghagen would be required to report to prison.  Although this method of notation may sacrifice certainty to achieve efficiency, it does not usurp the powers of the commissioner of corrections. 



            The state alternatively argues that the district court abused its discretion when it granted a downward dispositional departure at the resentencing hearing.  A judge may depart from the presumptive sentence when substantial and compelling reasons are present.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); Minn. Sent. Guidelines II.D.  If the district court states the reason for a downward departure, a reviewing court examines the record to determine if the reasons given justify the departure.  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).  Absent an abuse of discretion, a reviewing court will not reverse a district court’s departure from the sentencing guidelines.  State v. Misquadace, 644 N.W.2d 65, 68 (Minn. 2002).  At the hearing on remand, the district court gave two reasons for departing downward from the sentencing guidelines: (1) Klinghagen’s amenability to probation; and (2) her lack of substantial capacity for judgment at the time the offense was committed.

            “[A] defendant’s particular amenability to individualized treatment in a probationary setting will justify departure in the form of a stay of execution of a presumptively executed sentence.”  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  In deciding whether to grant a dispositional departure from the presumptive sentence on the basis of amenability to probation, a district court may “focus more on the defendant as an individual and on whether the presumptive sentence would be best for him and for society.”  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).  And the court may consider “[n]umerous factors, including the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family.”  Trog, 323 N.W.2d at 31.  Additionally, the court may consider a defendant’s “particular unamenability” to incarceration in deciding whether a defendant was amenable to probation.  State v. Wright, 310 N.W.2d 461, 462 (Minn. 1981).

            The state argues that, taking the record as a whole, Klinghagen has shown herself to be particularly unamenable to probation.  The state notes that Klinghagen has been uncooperative.  After initially requesting a downward dispositional departure, Klinghagen repeatedly disobeyed the district court’s orders that she undergo a psychological evaluation.  To enforce the requirement that Klinhagen meet with doctors, the district court had to detain her in the county jail.  The state also claims that, rather than accepting responsibility for her crimes and showing remorse, Klinghagen attributes fault to the police and the local government.  Furthermore, Klinghagen initially failed to complete the community-service work required as a condition of her probation.  She was 209 hours behind on the date of the violation hearing.

            The state’s description of Klinghagen’s conduct has a basis in the record for the time period preceding the probation-violation hearing.  But the district court gave due consideration to this conduct when it concluded that Klinghagen was particularly amenable to probation, and relied on the fact that its admonition at the probation-violation hearing appeared to produce a change in Klinghagen’s behavior.  At the time of the resentencing hearing, Klinghagen had completed all of the required community service, and the district court determined that she had “completed what the [c]ourt ordered by and large.”  The court cited Klinghagen’s improvement as evidence of her amenability to probation.

            Furthermore, the district court considered Klinghagen’s “particular unamenability” to incarceration when it determined that she was amenable to probation.  In reaching its decision, the court incorporated by reference a psychological report that was done in connection with the presentence investigation.  The report supports the district court’s conclusion that incarceration is inappropriate for Klinghagen in light of her psychological condition.  Based on this record, we conclude that the district court’s downward dispositional departure was not an abuse of discretion. 

            A district court may also grant a downward dispositional departure if the defendant lacked substantial capacity for judgment when the offense was committed.  Minn. Sent. Guidelines II.D.2.a.(3).  In upholding denials of motions for departure, courts have emphasized that mental impairment must be extreme in order to justify a departure from the sentencing guidelines.  See State v. Wilson, 539 N.W.2d 241, 247 (Minn. 1995) (emphasizing that impairment must be extreme and holding that district court acted within its discretion in sentencing appellant); State v. Lee, 491 N.W.2d 895, 902 (Minn. 1992) (same).

            Although evidence in the record suggests that Klinghagen’s condition was not extreme, the district court did not abuse its discretion in finding that her condition justified a departure.  At the initial sentencing, the district court found that Klinghagen was not so mentally ill that she lacked responsibility for her actions.  The psychological evaluation, however, reveals that Klinghagen may be experiencing a range of severe mental disorders.  It is within the discretion of the district court to find that these disorders precipitated Klinghagen’s aggressive reaction to the police confrontation and that, as a result, she lacked substantial capacity for judgment when the offense was committed.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.