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,
Katherine Josephine Neubarth,
Filed February 18, 1997
St. Louis County District Court
File No. K195600605
Alan L. Mitchell, St. Louis County Attorney, Gary W. Bjorklund, Assistant County Attorney, 100 North Fifth Avenue West, Duluth, MN 55802 (for Respondent)
Lawrence W. Pry, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)
Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Forsberg, Judge.[*]
Appellant challenges the district court's refusal to depart dispositionally or durationally from the presumptive 48-month sentence for her conviction of aggravated robbery in the first degree. We affirm.
Neubarth argues that the district court should not have imposed the presumptive sentence because substantial and compelling circumstances for departure were present. Specifically, she argues that (1) a downward durational departure is justified because her impaired psychological and emotional condition led to a diminished capacity for judgment and (2) a dispositional departure is justified because she is particularly amenable to individualized treatment in a probationary setting.
The sentencing guidelines authorize a downward durational departure when "[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). Neubarth asserts that because she was raped two months before the robbery and was under treatment for depression, she lacked substantial capacity for judgment.
A trial court may depart dispositionally if the offender is "particularly amenab[le] to individualized treatment in a probationary setting." State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Neubarth argues that her lack of a prior criminal record, her youth, her remorse for her actions, and the support of her family and pastor are adequate grounds for a dispositional departure.
Neubarth argues that the district court wrongly concluded there were no mitigating factors and that the case must therefore be remanded, citing State v. Curtiss, 353 N.W.2d 262 (Minn. App. 1984). In Curtiss, this court concluded there were circumstances for departure that the trial court failed to consider and remanded for consideration of those circumstances. Id. at 264.
Here, there is no indication in the record that the district court failed to consider facts favorable to departure. On the contrary, the court delayed the conclusion of the sentencing hearing to consider Neubarth's arguments for departure, as well as to consider the state's arguments for imposing the presumptive sentence. The district court's conclusions that there were no substantial and compelling reasons to depart and its imposition of the presumptive sentence were not improper.
[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.