This opinion will be unpublished and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,
Jana Marie Baier,
Filed September 17, 1996
Kandiyohi County District Court
File No. K5951193
Hubert H. Humphrey, III, State Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101;
Boyd A. Beccue, Kandiyohi County Attorney, Jennifer Kurud Fischer, Assistant County Attorney, P.O. Box 1126, 316 SW Fourth Street, Willmar, MN 56201 (for Appellant)
John M. Stuart, Minnesota State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue SE #600, Minneapolis, MN 55414 (for Respondent)
Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.
U N P U B L I S H E D O P I N I O N
Appellant, through the Kandiyohi County Attorney, disputes the trial court's choice of a one-year jail sentence where a one year and one day sentence is presumed under the Minnesota Sentencing Guidelines. Although acknowledging that it has not sought an upward departure, the prosecution submits on appeal its analysis of aggravating factors. At sentencing, the trial court considered prior conduct of respondent that added "gravity to the situation" and weighed that factor against respondent's age (21) and the absence of any prior conviction. Questioning the court's assessment of these circumstances, which included the court's ultimate statement that it was inclined to "err on the side of mercy and compassion," the prosecution asks that we remand for resentencing. We decline to do so.
Through her employment with a religious organization, respondent, a twenty-two-year-old single mother, became acquainted with the victim, an elderly woman. After being in a position of confidence with the victim and her husband, respondent gained access to and used the victim's checkbooks and credit cards without permission. Respondent was brought to trial on charges of Offering a Forged Check, Theft and Financial Transaction Card Fraud. At the close of the state's case, the trial court dismissed the Theft charge. The jury ultimately acquitted respondent of Financial Transaction Card Fraud and found her guilty of Offering a Forged Check, a felony.
Under the Minnesota Sentencing Guidelines, appellant's conviction was a severity level II, meriting imprisonment for one year and one day, stayed. At the sentencing hearing, the trial court denied respondent's post-conviction motion to reduce the verdict from a felony to a gross misdemeanor. Nevertheless, after weighing sentencing circumstances, including the age and vulnerability of the victims, the trial court departed downward from the presumptive sentence by one day and sentenced respondent to one year in jail and a $3000 fine. Execution of the sentence was stayed on conditions that included immediate jailing for 130 days and payment of $1230 in fines, plus restitution.
D E C I S I O N
The trial court has broad discretion to depart from the presumptive sentence when there are substantial and compelling circumstances present. State v. Schenk, 427 N.W.2d 12, 13 (Minn. App. 1988). The reviewing court generally will not interfere with that discretion unless it has a "strong feeling" that the sentence is disproportionate to the offense. Id. Unless its sentencing discretion is clearly abused, we must defer to the trial court's sentencing decision. State v. Casady, 392 N.W.2d 629, 634 (Minn. App. 1986), review denied (Minn. Sept. 24, 1986).
A defendant's clean criminal record is not a substantial factor that the trial court can use to explain a downward departure. State v. Cizl, 304 N.W. 2d 632, 634 (Minn. 1981). Appellant disputes the weight of respondent's youth as a mitigating factor, but finds no authority on the subject. In dictum, we have suggested that this factor is not relevant to a durational departure. State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).
Although disputing the trial court's sentence and contending that mercy and compassion for appellant's victims might be considered, appellant withholds comment on the trial court's ultimate choice to opt for a modicum of mercy and compassion toward a young mother with no criminal record. We likewise decline to declare that the quality of mercy is strained as a matter of law, at least in these circumstances. Similarly, we refrain from characterizing the calculated mercy of a seasoned trial judge as a mere personal preference. As a result, we affirm the trial court's sentence.