Minn. Stat. sec. 480A.08, subd. 3 (1996).
IN COURT OF APPEALS
State of Minnesota,
Thomas Kenneth Galatz,
Filed June 2, 1998
St. Louis County District Court
File No. K0-97-300686
John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)
Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Alan L. Mitchell, St. Louis County Attorney, Brian D. Simonson, Assistant County Attorney, 1810-12th Avenue East, 107 D. Courthouse, Hibbing, MN 55746 (for respondent)
Considered and decided by Crippen, Presiding Judge, Davies, Judge, and Harten, Judge.
Appellant Thomas Kenneth Galatz was sentenced to 25 years' imprisonment for second-degree criminal sexual conduct under the patterned sex offender statute. The sentence was to run consecutively to a prior conditional release violation. Galatz challenges the sentence, arguing that the district court did not make adequate findings and assigned the wrong criminal history score, and that its sentence unduly exaggerates the criminality of his offense. We affirm.
From June 16 through June 19, 1997, eight-year-old C.K. and her younger brother stayed at the home of Jimmy and Sonya Peroceschi. Galatz was living with the Peroceschis at that time. A week later, C.K.'s mother reported to the police that C.K. had been sexually abused while staying at the Peroceschi residence. C.K. revealed to a county social worker that Galatz had touched her "privates" two times. Galatz admitted to police that he had touched C.K.'s genitals, over her clothing, on two occasions.
Galatz was charged with first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342 (1996) and two counts of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343 (1996). Galatz pleaded guilty to one count of second-degree criminal sexual conduct. The other charges were dismissed. Galatz also admitted violating the conditional release from his 1993 conviction.
The district court ordered a psychological evaluation and a presentence investigation (PSI). The psychologist found that Galatz has a long history of sexual abuse, is unamenable to treatment, and poses an extreme risk to the community. In the PSI, the corrections agent concluded that the likelihood of Galatz reoffending is great without intensive psychotherapeutic intervention or long-term controls, and that he has three convictions for similar past conduct.
On November 21, 1997, the district court found Galatz to be a patterned sex offender under Minn. Stat. § 609.1352 (1996), and sentenced him to 25 years' imprisonment consecutive to the prior conditional release violation. The sentence also included a second conditional release (ten years) to begin upon his release from prison. This appeal was filed on February 20, 1998.
On February 24, 1998, the parole board of the Department of Corrections granted Galatz a release date of December 18, 1997, for the violation of his first conditional release. Therefore, the instant 25-year consecutive sentence began to run on that date.
We review a sentence under Minn. Stat. § 244.11 (Supp. 1997). A departure from the sentencing guidelines will not be reversed absent a clear abuse of discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).
A court may impose an upward durational departure from the guidelines sentence if substantial and compelling aggravating circumstances are present. State v. Halvorson, 506 N.W.2d 331, 338 (Minn. App. 1993). Status as a patterned sex offender, as defined by Minn. Stat. § 609.1352 (1996), is an aggravating factor. Minn. Sent. Guidelines II.D.2(b)(7). Under section 609.1352, if the court finds that the offender is a danger to public safety and needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release, the court
shall commit a person to the commissioner of corrections for a period of time that is not less than double the presumptive sentence under the sentencing guidelines and not more than the statutory maximum * * *.
Minn. Stat. § 609.1352, subd. 1 (1996).
Galatz argues that the district court incorrectly calculated his criminal history score to determine the presumptive sentence. A criminal history score is determined by assigning points for prior convictions according to the severity level of the prior crimes. Minn. Sent. Guidelines II.B.1.a. For each permissive consecutive sentence, the criminal history score shall be zero. Minn. Sent. Guidelines II.F. A consecutive sentence is permitted if the current felony is for a crime against a person and a prior unexpired felony sentence also was for a crime against a person. Id.
The district court assigned Galatz a criminal history score of four. We agree with Galatz, however, that his criminal history score should have been zero. According to the sentencing guidelines, with a score of zero, the presumptive sentence is 21 months. Although the district court erred in assigning the criminal history score, that error does not make the sentence improper. When the patterned sex offender statute is applied, the criminal history score is important only to identify the minimum presumptive sentence. Here, the minimum presumptive sentence is 21 months, but the minimum sentence when the patterned sex offender statute is applied is 42 months.
The applicable statutory maximum sentence is 40 years. Minn. Stat. § 609.1352, subd. 1a. The statute alone provides authority to sentence up to the statutory maximum. Halvorson, 506 N.W.2d at 339. No specific findings of severe aggravating circumstances are required for a court to impose a sentence longer than double the presumptive sentence. Id. Therefore, when applying section 609.1352, the district court had discretion to impose a sentence between 42 months and 40 years.
One purpose of the sentencing guidelines is to ensure that felony sentences are proportional to the offenses. Minn. Sent. Guidelines I. Even if a sentence technically is permissible, an appellate court is obliged to modify the sentence if it unfairly exaggerates the criminality of the offense. State v. Norris, 428 N.W.2d 61, 71 (Minn. 1988). Galatz does not dispute the district court finding that he is a patterned sex offender, nor does he argue that the sentence was technically impermissible. Galatz does argue, however, that the 25-year sentence and the decision that it run consecutively to the remainder of the conditional release unduly exaggerates the criminality of his conduct.
Several factors support the sentence. First, Galatz has a history of sexual and domestic abuse with at least six victims and possibly more than ten. Second, although Galatz has participated in past sex offender treatment programs, he has reoffended both during and after his treatments. Past treatment has not been successful and future treatment is unlikely to be successful. Third, Galatz has not obeyed conditions of his probation; one condition being that he stay away from children. Fourth, the psychologist found that Galatz minimizes the seriousness of his behavior. He has denied much of his conduct, he sees himself as a victim, and he does not acknowledge the intrusiveness of his actions.
The district court has discretion to impose a sentence up to the statutory maximum of 40 years. Galatz has displayed a pattern of sexual abuse that is likely to continue. We conclude the district court's decision to sentence Galatz to 25 years' imprisonment was not an abuse of discretion.
A sentence imposed under the patterned sex offender statute is a departure from the sentencing guidelines. Minn. Stat. § 609.1352, subd. 4. The district court is required to make written findings to support a departure. Minn. Stat. § 244.10, subd. 2 (1996). In cases where the departure is based on the patterned sex offender statute, it is sufficient for the district court to state on the record each of the required findings. State v. Bale, 493 N.W.2d 123, 125 (Minn. App. 1992), review denied (Minn. Jan. 28, 1993). Under Minn. Stat. § 609.1352, subd. 1, the district court is required to find that the offender is a danger to public safety and needs long-term treatment beyond the presumptive sentence.
Galatz argues that the district court's findings are insufficient. We disagree. The district court filed a written departure report, which adopts the findings of the psychologist and the presentence investigator. In the departure report, the district court found that each requirement of section 609.1352 is present. Moreover, the court declared on the record at the hearing that it adopted the psychologist's report and the presentence investigation and that it agreed with the reasons in those reports for
application of the patterned sex offender statute. These findings satisfy statutory requirements.
 Galatz served from November 21 through December 18, 1997, for violation of the conditional release.
 Galatz argues that the total time under sentence, which is 25 years plus the remainder of the prior conditional release, amounts to 33 years. But the department of corrections released Galatz after only a month from serving the eight remaining months for his first conditional release violation. Thus, the total time under sentence is 25 years and one month. Of course, even a 33-year sentence is less than the statutory maximum sentence of 40 years.
 The court-appointed psychologist reported that Galatz had abused a minimum of ten victims. Galatz argued at sentencing that there were only six.