may not be cited except as provided by
Minn. Stat. §. 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Danny Dwayne Tarver,
Filed December 31, 1996
St. Louis County District Court
File No. K3-96-600132
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Appellant)
Alan L. Mitchell, St. Louis County Attorney, John E. DeSanto, Assistant County Attorney, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for Appellant)
Laura A. Zimm, Assistant Public Defender, 1400 Alworth Building, Duluth, MN 55802 (for Respondent)
Considered and decided by Parker, Presiding Judge, Willis, Judge, and Foley, Judge.
In this sentencing appeal, the state argues the district court abused its discretion in departing dispositionally from the presumptive term. We affirm.
The district court sentenced Tarver to the presumptive terms for both offenses, but departed dispositionally by staying execution of the sentences for ten years. The court imposed several conditions of probation, including completion of chemical dependency treatment. The court stated it departed dispositionally because of Tarver's age, his lack of a juvenile record after the age of 13, his passive role in the robbery, and the probation department's recommendation.
A district court may depart dispositionally from the presumptive sentence if substantial and compelling circumstances are present. State v. Dokken, 487 N.W.2d 914, 916-17 (Minn. App. 1992), review denied (Minn. Sept. 30, 1992). Amenability to probation is one factor supporting a dispositional departure. State v. McCalister, 462 N.W.2d 407, 409 (Minn. App. 1990). Whether a defendant is amenable to probation depends on many factors, including age, past record, remorse, attitude in court, and family support. Dokken, 487 N.W.2d at 917. The defendant's passive role in the crime also is a mitigating factor. Minn. Sent. Guidelines II.D.2.a(2).
The state argues the district court did not provide written reasons for the departure and therefore no departure can be allowed. See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (when reasons for departure are not stated on record at time of sentencing, no departure will be allowed). We disagree. The district court's written departure report prepared on the same day as the sentencing order satisfies the Williams requirement.
The state, however, makes a strong case for reversing the dispositional departure on the ground that it was not supported by substantial and compelling circumstances. Tarver did not successfully complete the probationary term imposed for his juvenile offenses. Neither Tarver's former probation officer nor the probation agent who prepared the presentence investigation report was optimistic that Tarver would successfully complete the new probationary term. The record also supports the conclusion that Tarver's role in the robbery was more than passive. Cf. State v. Kindem, 313 N.W.2d 6, 7-8 (Minn. 1981) (affirming refusal to depart and stating that defendant's role in crime was not passive because codefendant did not like to commit crimes by himself and defendant's presence alone therefore made commission of crime more likely). Given these facts, the sentence imposed here troubles this court.
The power to reverse a dispositional departure, however, must be exercised carefully and cannot be used merely because we are troubled by a sentence or would have imposed a different term. Dokken, 487 N.W.2d at 919. As a reviewing court, we are extremely reluctant to interfere with the district court's sentence absent an abuse of discretion. Id.
After reviewing the record here, we cannot say that the sentence imposed in this case, although not the result we would have reached, was an abuse of discretion. The victim's testimony that Tarver stood by during the robbery and did not assault her or take any money supports the district court's conclusion that Tarver played a passive role in the crime. See State v. Wittman, 461 N.W.2d 247, 249 (Minn. App. 1990) (function of district court to determine whether defendant's role in crime was passive). Also, Tarver's juvenile offenses were committed when he was 13 years old and he never formally violated his juvenile probation. The probation agent who prepared the presentence investigation report believed that the adult probation system, particularly its chemical dependency treatment program, might be of help to Tarver. Finally, the record contains evidence suggesting Tarver was remorseful about his crime, had a new attitude, and had strong family support. See Williams, 361 N.W.2d at 844 (if reasons for departure are inadequate, appellate court will review record to determine if it contains sufficient evidence to justify departure). These facts are just sufficient to constitute the minimum showing necessary to support the dispositional departure imposed in this case.
[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.