may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Julius Deelvin Chatman,
Filed January 19, 1999
Affirmed in part,
reversed in part, and remanded
Toussaint, Chief Judge
Olmsted County District Court
File No. K5972261
Raymond F. Schmitz, Olmsted County Attorney, Third Floor, Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)
John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Holtan, Judge.[*]
Appellant Julius Chatman challenges the sentencing court's upward dispositional and durational sentencing departures resulting from his simple robbery conviction. Because the sentencing court did not abuse its discretion by imposing a dispositional departure, we affirm Chatman's executed sentence. Because the sentencing court failed to provide substantial and compelling reasons to support its durational departure, we reverse Chatman's consecutive sentence.
Decisions to depart from sentencing guidelines rest within a sentencing court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), overruled in part on other grounds by State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996). If evidence in the record supports a finding that there were substantial and compelling aggravating circumstances, "this court will not modify the departure unless it has a `strong feeling' that the sentence is disproportional to the offense." State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984).
Because simple robbery is a severity level five offense and Chatman has a criminal history score of two, Chatman's presumptive sentence is 27 months stayed. The sentencing court revoked Chatman's probation for a prior second-degree assault conviction and executed the stayed 36-month prison term for that offense. In addition, the court sentenced Chatman to an executed 18-month term to be served consecutively with the 36-month term, which constitutes an upward dispositional and durational departure.
Sentencing courts must "utilize the presumptive sentence provided in the guidelines unless the individual case involves substantial and compelling circumstances." Minn. Sent. Guidelines II.D. Generally, in determining when to depart from the presumptive sentence, a sentencing court must decide "whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). If a court departs from a presumptive sentence, it must provide written reasons specifying the substantial and compelling nature of the circumstances and why a departure is more appropriate, reasonable, or equitable than the presumptive sentence. Minn. Sent. Guidelines II.D.
A. Upward Dispositional Departure
Whether a defendant constitutes a threat to public safety is a factor that has been used to determine the appropriateness of a dispositional departure. See State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983) (supporting a downward dispositional departure with, among other reasons, a finding that the defendant was not a threat to public safety). A defendant's amenability to probation and treatment is also a relevant factor in determining whether a dispositional departure is warranted. State v. Herrmann, 479 N.W.2d 724, 728 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). In addition, a defendant's sincerity in seeking treatment has been considered in departure determinations. See State v. Champion, 413 N.W.2d 161, 164 (Minn. App. 1987) (denying defendant's motion for a downward departure in part because the court doubted the defendant's sincerity in seeking treatment).
In support of its upward dispositional departure, the sentencing court found that Chatman (1) continues to pose a threat to the community and to the safety of others; (2) is no longer amenable to treatment and probation; and (3) lacks sincerity and credibility regarding treatment and probation.
The record supports the sentencing court's findings: (1) Chatman's probation officer received a police report, dated April 1997, alleging that Chatman punched a man several times and broke three of his ribs; (2) the probation officer also documented evidence suggesting that Chatman was a leader of a small street gang; (3) Chatman admitted he violated the probation officer's prohibition against alcohol on the night of the incident giving rise to his simple robbery conviction; and (4) Chatman has three juvenile adjudications for offenses against persons. According to the pre-sentencing investigation, community programming options had been exhausted prior to Chatman's arrest for his second adult felony. Court services found Chatman too great a risk to public safety to remain on probation and further found him unamenable to probation.
Because the sentencing court gave substantial and compelling reasons for imposing a dispositional departure and the record supports the court's reasons, the court did not abuse its discretion by imposing an executed term.
B. Upward Durational Departure
According to the sentencing guidelines, one who is currently convicted of a felony against a person can permissively be sentenced consecutively to a prior felony sentence for a crime against a person, which has not expired or been discharged. Minn. Sent. Guidelines II.F. However, a consecutive sentence is permissive only when the presumptive disposition for the current offense is commitment to the Commissioner of Corrections. Id.
The sentencing court's reasons for imposing a durational departure were that (1) Chatman was previously sentenced on a serious offense against a person and has since committed a new serious crime against another person, thereby being convicted of crimes against two separate victims; and (2) not to sentence Chatman consecutively on this charge would minimize his conduct.
The fact that Chatman was convicted of a second crime against a person is not a substantial and compelling reason warranting a departure. The guidelines state that a second conviction for a crime against a person may not be used to support a departure unless the presumptive disposition for the current offense is commitment to the Commissioner of Corrections. The presumptive disposition for Chatman's simple robbery conviction is a stayed sentence. Therefore, the court may not use Chatman's second conviction for a crime against a person as a reason to support its durational departure.
Similarly, a departure cannot be justified by a concern that the sentence imposed by the guidelines will result in minimizing a defendant's conduct. General disagreement with the guidelines does not justify departure. State v. Bellanger, 304 N.W.2d 282, 283 (Minn. 1981).
Because the sentencing court did not cite any aggravating factors or explain how Chatman's conduct was significantly more serious than a typical simple robbery, we conclude that the court's upward durational departure was not sufficiently supported by substantial and compelling reasons. Therefore, we reverse the durational departure and remand for proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.