may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Scott Ronald Schmitz,
Filed August 5, 1997
Mower County District Court
File No. K1-95-619
Hubert H. Humphrey III, Attorney General, Suite 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Patrick A. Oman, Mower County Attorney, 201 First Street N.E., Austin, MN 55912 (for respondent)
Lawrence W. Pry, Assistant State Public Defender, LEC 304, 875 Summit Avenue, St. Paul, MN 55105 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Holtan, Judge.
Appellant challenges the district court's double durational departure in sentencing appellant for his fourth-degree criminal sexual conduct conviction.
Later that day, Schmitz grabbed K.H., born March 13, 1984, in the basement of St. Olaf Church, also in Austin. Schmitz told K.H. that before he would let her go, he "had to touch something first." When Schmitz tried to lift up K.H.'s dress, she escaped his grasp and fled upstairs.
By amended complaint, the state charged Schmitz with second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (1996), and fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(c) (1996), for his assault of C.S. The state further charged Schmitz with attempted second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343 (1996) for his conduct toward K.H. and solicitation of children to engage in sexual conduct in violation of Minn. Stat. § 609.352 (1996), for statements he made to two nine-year-old girls outside a local YMCA on the same day as his assaults of C.S. and K.H. Schmitz negotiated and entered guilty pleas to charges of fourth-degree criminal sexual conduct and attempted fourth-degree criminal sexual conduct. The state dismissed the remaining charges.
The presentence investigation for Schmitz revealed two prior convictions for second-degree (felony) criminal sexual conduct and two prior convictions of felony theft. The PSI also included a psychosexual evaluation detailing eight instances (including those occurring on May 6, 1995) of Schmitz attempting to make sexual contact with girls between 7 and 17 years old over the course of 20 months. The district court relied heavily on, and expressly adopted at the sentencing hearing, many of the findings contained in the psychosexual evaluation.
The presumptive sentences for Schmitz's convictions were 60-70 months for his fourth-degree criminal sexual conduct and 34 months for his attempted fourth-degree criminal sexual conduct. The district court imposed a 140-month sentence for the fourth-degree criminal sexual conduct and a concurrent sentence of 34 months for the attempted fourth-degree criminal sexual conduct. On appeal, Schmitz challenges the district court's double durational departure in sentencing him for his fourth-degree criminal sexual conduct conviction.
A sentencing court "shall commit a person to the commissioner of corrections for a period of time that is not less than double the presumptive sentence" if, among other things, the court finds that, based on a professional evaluator's conclusion that the offender is a patterned sex offender, the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release. Minn. Stat. § 609.1352, subd. 1(a)(3) (1996).
Schmitz argues that the district court erred by imposing a double durational departure because the court did not expressly find that Schmitz needs long-term treatment. It is true that the district court did not explicitly state that Schmitz needs long-term treatment beyond the presumptive term. Section 609.1352 does not, however, expressly require a court to state on the record its finding that the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release.
Moreover, the record makes clear that the court concluded Schmitz needed long-term treatment beyond the presumptive term. The court cited extensively to portions of the examiner's report that support such a conclusion and expressly adopted the examiner's findings that Schmitz has an excessively high level of compulsivity, a lack of empathy for his victims, an inability to control his behavior, and limited insight into the nature of his behavior. The court also adopted the examiner's finding that these facts, coupled with Schmitz's past failure at treatment, lead to the conclusion that Schmitz "is not amenable to sex offender treatment." For these reasons, the court made its conclusion on this issue sufficiently clear and did not err by failing to explicitly state that Schmitz needed long-term treatment beyond the presumptive term.
This court's decision in State v. Bale, 493 N.W.2d 123 (Minn. App. 1992), review denied (Minn. Jan. 28, 1993), does not compel a contrary conclusion. In Bale, this court stated that to satisfy section 609.1352, a district court must "explicitly state on the record that it makes each of the required findings." 493 N.W.2d at 125. The issue in Bale, in contrast with the issue here, was whether a court's oral findings on the section 609.1352 factors satisfied the guidelines' requirement of written findings. 493 N.W.2d at 124. As a result, Bale is distinguishable from this case, and the Bale court's statement of the necessity of explicit findings on the section 609.1352 factors was nonbinding dictum.
Schmitz further contends that the court improperly relied on the psychosexual report because its author was not asked to determine whether Schmitz is "a patterned sex offender as defined by § 609.1352." Schmitz cites no authority for the proposition that a psychosexual examiner's conclusions on this issue are valid only if the examiner states that he finds the offender to be a patterned sex offender within the meaning of section 609.1352 or for the proposition that the statutory meaning of patterned sex offender differs from the meaning attributed to the same term by psychosexual examiners.
Moreover, the examiner's findings are consistent with the statutory definition of a patterned sex offender. Section 609.1352 defines a patterned sex offender as "one whose criminal sexual behavior is so engrained that the risk of reoffending is great without intensive psychotherapeutic intervention or other long-term controls." Minn. Stat. § 609.1352, subd. 1(a)(3).
Here, the examiner's report detailed eight instances of Schmitz's sexual misconduct toward young girls. The examiner noted Schmitz's "excessively high level of compulsivity, lack of empathy, and inability to control his behavior * * * [and] only limited insight into the nature of his behavior." Based on these findings, the examiner concluded that Schmitz is not amenable to sex offender treatment and is at a high risk of reoffense. On this record, we cannot say that the district court erred by relying on the examiner's finding that Schmitz is a patterned sex offender and imposing a double durational departure under section 609.1352.
Schmitz also argues that the district court relied on improper aggravating factors as alternative bases for the double departure. Because we conclude that the court properly sentenced Schmitz under section 609.1352, we decline to address this argument.
Although the court should have stated its findings on the section 609.1352 factors, its failure to do so does not constitute reversible error where, as here, the record adequately supports a finding that all of the factors existed, and it is clear that the court believed that they did. Accordingly, the court did not abuse its discretion by imposing a double durational departure in sentencing Schmitz for his fourth-degree criminal sexual conduct conviction.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.