This opinion will be unpublished and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
State of Minnesota,
Kami Kay Gilmore,
Jackson County District Court
File No. K2-94-1043
Filed July 23, 1996
Hubert H. Humphrey, III, Attorney General, Suite 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Mark Steffan, Jackson County Attorney, Jackson County Courthouse, 405 4th Street, Jackson, MN 56143 (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Parker, Judge, and Randall, Judge.
U N P U B L I S H E D O P I N I O N
Kami Kay Gilmore argues that the district court erred when it sentenced her to the presumptive sentence, instead of granting her motion for a downward dispositional sentence, after it determined that she was amenable to probation. We affirm.
Appellant pled guilty to one count of criminal sexual conduct in the second degree for her participation in the abuse of a mildly retarded 37 year-old woman. The abuse took place over a ten day period. Her guilty plea was conditioned on the state's agreement to drop a number of charges against her and to remain silent at her sentencing hearing.
At the hearing, appellant moved for a downward dispositional departure and asked that she be placed on probation so she could remain with her young daughter. During the hearing, appellant called a licensed psychologist who testified that, based on his examination, he believed there was only a "limited possibility" that she would re-offend. He also indicated that appellant had a very low self-esteem and probably participated in the criminal activity due to her belief that she would lose her friendship with the two men who were also involved in this incident if she did not cooperate. Appellant also called two individuals who testified that she was a good mother and that if she were sent to prison it would jeopardize the emotional and psychological well-being of her daughter.
On the basis of this testimony, the district court found that appellant was amenable to probation. However, after considering the entire record, including the recommendation of the court services officer who prepared a presentence investigation, the reduced mental capacity of the victim, and the viciousness of the conduct, the trial court executed the presumptive sentence of 48 months.
Only in "rare" cases 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).
Appellant argues the district court erred when it imposed the presumptive sentence and denied her request for a downward dispositional sentencing departure. She asserts that the district court should have confined its consideration to whether the record established that she was particularly amenable to individualized treatment in a probationary setting. In other words, she argues that the district court erred by considering the severity of the crime involved in this case when it imposed the presumptive sentence.
In relevant part, the Minnesota Sentencing Guidelines provide as follows:
The sentences provided in the Sentencing Guidelines Grid are presumed to be appropriate for every case. The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances. When such circumstances are present, the judge may depart from the presumptive sentence and stay or impose any sentence authorized by law.
Minn. Sent. Guidelines II.D. (emphasis added).
Appellant made a strong argument for a downward dispositional departure. The record easily supports the conclusion that a downward departure would not have been an abuse of trial court sentencing discretion. However, the law is clear that neither the guidelines nor case law mandate a dispositional downward departure when amenability to probation is present. The presumptive sentence remains the presumptive sentence either when the state makes a strong argument for an upward departure or the defendant makes a strong argument for a downward departure. Here, appellant concedes the victim was partially mentally retarded. The record shows the abuse was of a vicious nature and took place over an extended period of time. The extended period of time (several days) causes appellant's argument that she was an unwilling participant and felt coerced by her boyfriend to participate, to lose some of its effect.
We cannot find error in the trial court's decision