This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-95-2126

State of Minnesota,

Respondent,

vs.

Joshua James Walker,

Appellant.

Filed June 18, 1996

Affirmed

Holtan, Judge*

Scott County District Court

File No. 94-15827

Hubert H. Humphrey III, Minnesota Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Thomas J. Harbison, Scott County Attorney, Susan K. McNellis, Assistant Scott County Attorney, 206 Scott County Courthouse, 428 South Holmes Street, Shakopee, MN 55379 (for Respondent)

Steven P. Russett, Assistant Minnesota State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Holtan, Judge.

U N P U B L I S H E D O P I N I O N

HOLTAN, Judge

In this sentencing appeal, Joshua James Walker challenges the trial court's imposition of the presumptive sentence under the guidelines. We affirm.

FACTS

On September 14, 1994, appellant Joshua James Walker robbed, at gunpoint, an apple orchard and health food store. A jury found him guilty of aggravated robbery under Minn. Stat. '' 609.245, 609.11, subd. 5 (1994).

This crime was not Walker's first offense. In January 1994, he committed gross misdemeanor theft for which the imposition of his sentence was stayed. While on probation for this offense, he committed three felony theft offenses on two separate occasions in March 1994. He was awaiting sentencing for the three March offenses when he committed the instant crime of armed robbery.

At the sentencing hearing, the trial court heard testimony from Walker's probation officer and a dispositional advisor for the state, in addition to statements from both Walker and his mother. Because Walker reoffended while on probation, committed more severe offenses each time, and did not take responsibility for his actions, his probation officer recommended the presumptive sentence of 88 months based on Walker's criminal history score of four. However, the dispositional advisor recommended a downward departure because Walker had not yet had the opportunity to benefit from probation and treatment following his March offenses. Walker stated that in October 1994, before his arrest for the instant crime, he was involved in a near-fatal automobile accident. He contends that during his 10-day hospitalization, he came to the realization that his life was on the wrong path and that he needed to change its direction. Walker's mother stated that she attributed her son's behavior to ongoing adjustment difficulties with his thyroid medication, which was finally at a therapeutic level only for the seven months prior to sentencing.

In addition to the testimony and statements received by the trial court during the sentencing hearing, the record also includes several confidential documents: the sentencing worksheet and presentence investigation report, a rule 20 assessment, a sentencing memorandum prepared by the dispositional advisor, and an independent psychological evaluation by a licensed psychologist, which indicates that Walker does not intend to completely abandon his former lifestyle.

After careful consideration of the entire record, the trial court found no circumstance sufficiently substantial and compelling to justify a downward departure from the sentencing guidelines. Consequently, it imposed the presumptive sentence, 88 months in prison, and ordered Walker to pay restitution.

D E C I S I O N

Although Minn. Stat. ' 244.11 (1994) permits appellate review of sentences in criminal cases, only in a "rare" case will a reviewing court reverse a trial court's imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

[T]he Guidelines state that when substantial and compelling circumstances are present, the judge "may" depart. This means that the trial court has broad discretion and that [the reviewing court] generally will not interfere with the exercise of that discretion.

Id. (citing State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981)).

The sentencing guidelines presume that the sentences provided in the guidelines grid are "appropriate for every case," and only "substantial and compelling circumstances" can overcome this presumption. Minn. Sent. Guidelines II.D. Any mitigating factors justifying departure must be substantial and compelling because

[t]he purposes of the sentencing guidelines cannot be achieved unless the presumptive sentences are applied with a high degree of regularity.

Minn. Sent. Guidelines cmt. II.D.03. The sentencing judge is only required to provide an explanation for the sentence imposed when departing from the presumptive sentence. Minn. Sent. Guidelines II.D.

One of the mitigating factors which "may" be used as a reason for departure is that "[t]he offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed." Minn. Sent. Guidelines II.D.2.a.(3). Another such factor includes "[o]ther substantial grounds" which "tend to excuse or mitigate the offender's culpability, although not amounting to a defense." Minn. Sent. Guidelines II.D.2.a.(5).

Nevertheless, even where a mitigating factor is "clearly present," the trial court is not obligated

to place defendant on probation or impose a shorter term than the presumptive term. [The supreme court has] indicated in numerous cases that [it] generally will not interfere with a trial court's refusal to depart downward (or upward).

State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (citing Kindem, 313 N.W.2d 6).

Walker contends the trial court abused its discretion in refusing to depart from the sentencing guidelines. He claims that at the time of his offense, he had a diminished capacity for judgment which gave the trial court a substantial and compelling reason to depart downward from the guidelines. We disagree and affirm.

Affirmed.


Footnotes

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