This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Donna Marie Hess,


Filed March 31, 1998


Mulally, Judge*

Washington County District Court

File No. K8-96-2458

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Richard D. Hodsdon, Acting Washington County Attorney, Michael C. Hutchinson, Assistant County Attorney, Washington County Government Center, 14900 - 61st Street North, Stillwater, MN 55082 (for appellant)

Thomas C. Plunkett, Brent G. Eilefson, Dudley & Smith, P.A., 2602 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101-1717 (for respondent)

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Mullaly, Judge.



The state argues that the district court erred when it granted respondent a downward dispositional departure from the presumptive sentence following her guilty plea to conspiracy to commit murder. We affirm.


Respondent Donna Marie Hess was charged with conspiracy to commit murder in the first degree in violation of Minn. Stat. §§ 609.185(1), 609.175 (1996) and pleaded guilty pursuant to State v. Goulette, 258 N.W.2d 758 (Minn. 1977). The district court, after reviewing the presentence investigation report and numerous other reports and transcripts from the criminal investigation, and after hearing from Hess, stayed imposition of the presumptive sentence of 180 months' imprisonment. The court placed Hess on probation for 20 years and ordered her to serve one year in the Washington County Jail under any alternative to incarceration for which she might qualify. The court reserved the issue of restitution and ordered Hess to undergo a psychological evaluation.


The state argues that the reasons given by the district court were improper or inadequate and the evidence in the record was insufficient to justify a downward departure. A sentencing court must impose the presumptive sentence under the Minnesota Sentencing Guidelines unless the "case involves substantial and compelling circumstances." Minn. Sent. Guidelines II.D. "Substantial and compelling circumstances are those circumstances that make the facts of a particular case different from a typical case." State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985) (citing State v. Back, 341 N.W.2d 273, 276 (Minn. 1983)). If the sentencing court states reasons supporting a departure, the reviewing court "will examine the record to determine if the reasons given justify the departure." Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). If the sentencing court gave improper or inadequate reasons, "but there is sufficient evidence in the record to justify departure, the departure will be affirmed." Id.

Here, the district court stated four reasons for its departure: (1) lack of information and evidence linking Hess to the alleged crime; (2) lack of a previous criminal record; (3) Hess's status as primary caregiver to two minor children; and (4) Hess's score on the Level of Service Inventory-Revised test (LSI).

The state argues that the record does not support the district court's finding that there is a lack of information or evidence justifying a downward dispositional departure. Murder-for-hire cases typically include direct involvement in the conspiracy by the defendant. See State v. Willman, 296 Minn. 322, 322-23, 208 N.W.2d 300, 301 (Minn. 1973) (affirming conviction for first-degree murder where defendant secured agreement and where murderer formulated detailed plan for murder and provided murderer with victim's photograph and license plate number); see also State v. Howard, 324 N.W.2d 216, 218-19 (Minn. 1982), overruled in part on other grounds, State v. Robinson, 427 N.W.2d 217 (Minn. 1988); and State v. Webber, 292 N.W.2d 5, 7-8 (Minn. 1980) (affirming convictions for first-degree murder and conspiracy to commit murder where regular meetings took place between victim's husband and murderer and husband provided murder weapon).

Here, Hess maintains that her only connection to the crime was withdrawing $3,000 from her daughter's bank account and giving it to codefendant Kathleen Kelly, who she claims asked her for a loan to pay overdue bills. Except for a video transcript from a concealed camera in the squad car shortly after Hess and Kelly were arrested, all the evidence in the record focuses on Kelly. In the statement she gave to police shortly after her arrest, Hess admitted that she and Kelly had discussed the topic of hiring someone to murder Jeffrey Hess. However, she denied coming to any agreement with Kelly to actually go through with the murder. The record contains no unambiguously incriminating statements by Hess that suggest complicity with Kelly's actions.

The sentencing court could reasonably determine from the record that a general lack of information or evidence existed linking Hess to the crime. This finding, in light of Hess's Goulette plea, is germane to her culpability and represents a substantial and compelling, offense-related, mitigating circumstance. Consequently, we cannot conclusively determine that the sentencing court abused its discretion in considering the lack of information or evidence linking Hess to the crime.

The state next argues that the district court improperly included Hess's lack of a previous criminal record as a factor in its decision to depart from the sentencing guidelines. A defendant's lack of a previous criminal record by itself does not justify mitigation by the sentencing court. See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Considering the defendant's criminal history in a departure decision would usually be unfair because it is already factored into the presumptive sentence determination. State v. Brusven, 327 N.W.2d 591, 593 (Minn. 1982).

A departure determination is comprised of two separate and distinct decisions. In the comments to the sentencing guidelines, the sentencing commission states, "Some of these factors may be considered in establishing conditions of stayed sentences, even though they may not be used as reasons for departure." Minn. Sent. Guidelines cmt. II.D.201. The threshold decision is whether to reject the presumptive sentence. Once the sentencing court has decided to disregard the presumptive sentence, it must then determine the appropriate sentencing alternative. Thus, criminal history may not be considered when making the threshold decision to depart, but it may be considered when determining the alternative sentence.

Here, the sentencing court improperly included Hess's prior criminal history among its reasons for the threshold departure determination. Criminal history would be an appropriate factor for determining the length and conditions of Hess's probation, but it cannot be used to justify the sentencing court's initial departure decision. Consequently, the court erred when it included Hess's criminal history as a reason for departure.

The state next argues that the sentencing court abused its discretion by considering Hess's status as the primary caregiver to two minor children as a reason justifying departure. The state categorizes Hess's caregiver status as "living arrangements." Living arrangements at the time of offense or sentencing should not be used as reasons for departure. Minn. Sent. Guidelines II.D.1.d.(2).

Here, Hess's status as primary caregiver to two minor children represents something more than mere "living arrangements." The social factors listed in the guidelines such as educational attainment, length of residence, or living arrangements are specifically excluded as reasons for departure because they are highly correlated with sex, race, or income levels. Hess's caregiver status does not resemble the specified social factors because it is not highly correlated with any single social category. Therefore, we are unpersuaded by the state's argument that Hess's caregiver status is an inappropriate reason for departure because it constitutes "living arrangements." We note that even though the trial court is not precluded from considering a defendant's primary caregiver status, inclusion of this factor depends upon the particular facts of each case and is in no way determinative.

Lastly, the state argues that the sentencing court improperly relied on Hess's LSI score to justify departure from the sentencing guidelines. A sentencing court may dispositionally depart if the defendant is "particularly amenable to probation." State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985). Although not a prerequisite to dispositional departure, "[a]menability is logically relevant to a decision of whether to place the defendant on probation." State v. Wittman, 461 N.W.2d 247, 249 (Minn. App. 1990).

The sentencing court asserted that Hess's low score on the LSI demonstrated that she was, in effect, particularly amenable to probation. The state contends that the LSI is not intended to measure a defendant's amenability to probation, and furthermore, that Hess's refusal to admit her guilt or to express remorse for her actions negates any finding that she is amenable to probation.

Nothing precludes the sentencing court from relying on the LSI to assess Hess's level of amenability to probation. Furthermore, a test like the LSI, which measures the appropriate level of supervision for a defendant while on probation, may be probative of her amenability to probation.

The state's assertion that Hess's refusal to admit guilt or to show remorse negates any finding of amenability is unpersuasive in light of her Goulette plea and the particular facts of this case. Hess maintains her innocence and the sentencing court noted a lack of information or evidence in the record linking Hess to the crime. Under these circumstances, requiring Hess to admit guilt or show remorse as a prerequisite to finding her amenable to probation would be unreasonable. Consequently, we find no error in the sentencing court's use of Hess's LSI score to justify departure from the presumptive sentence. In addition, the record appears to contain information sufficient to support a finding that Hess is amenable to probation.

Notwithstanding the district court's improper consideration of Hess's lack of a previous criminal record, we find no clear abuse of discretion in the district court's downward dispositional departure.