This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1796

 

State of Minnesota,

Appellant,

 

vs.

 

Gary Allen Preblich,

Respondent.

 

Filed April 5, 2005

Affirmed

Halbrooks, Judge

 

 

Dakota County District Court

File No. K0-02-3949

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

James C. Backstrom, Dakota County Attorney, Amy A. Schaffer, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033  (for appellant)

 

John M. Stuart, State Public Defender, James R. Peterson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge, Halbrooks, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            The state appeals from a sentencing departure by the district court, arguing that the district court abused its discretion by imposing a downward dispositional departure on remand after this court had previously reversed and remanded for resentencing.  Because we conclude that the district court did not abuse its discretion in resentencing respondent, we affirm.

FACTS

            In January 2003, respondent Gary Preblich pleaded guilty to the felony offenses of first-degree refusal to submit to testing under Minn. Stat. § 169A.24 (2002), and fleeing a police officer in a motor vehicle under Minn. Stat. § 609.487, subd. 3 (2002).  The district court accepted the plea and sentenced respondent to 66 months in prison for the refusal-to-submit-to-testing charge and one year and one day for the fleeing-a-police-officer charge.  The court then stayed execution of the sentences and placed respondent on probation for ten years, subject to a number of conditions.[1]

            The state appealed and a divided panel of this court reversed, concluding that the district court abused its discretion by disregarding the sentencing guidelines and improperly determining that the disposition was supported by the record.  State v. Preblich, No. A03‑817, 2003 WL 22846116, at *1 (Minn. App. Dec. 2, 2003), review denied (Minn. Feb. 17, 2004).  We acknowledged the district court’s assessment of the respondent’s remorse and sincerity, but determined that the record was “replete with evidence that respondent [was] not amenable to probation,” such as the following:

[Respondent] was discharged from the second phase of [a treatment program] for testing positive for drugs in 1999.  His probation officer testified that he often did not come in for his appointments.  Further, she testified that on December 8, 2000, she found respondent at a bar drinking his second beer only one hour after she met with him to discuss his drug and alcohol abuse.  He was arrested on that same day for drinking and driving.  While on probation for charges in 2001, respondent violated his probation terms by being charged with nine new counts, including driving under the influence.  Following his arrest for the current crimes, his conditional release was terminated within two weeks for using cocaine.  The [presentence investigation report (PSI)] found that respondent represents a medium-to-high risk of committing further offenses within the coming year.  Two of his numerous drinking and driving offenses involved fleeing from the police, which the PSI found represented further danger to the public. 

 

Id.at *4.  We concluded that, “[a]lthough we recognize that the district court must have substantial discretion to depart downward from inappropriate sentencing guidelines, this record does not support that departure.  Departing from the presumed executed sentence is an abuse of discretion on this record.”  Id.at *5.  We reversed the district court and remanded for resentencing in accordance with the opinion.  Id.at *7. 

The dissent noted that this court should not “substitute [its] judgment for that of the district court, particularly when the [district] court has cited a factor that is properly considered when determining whether to dispositionally depart.”  Id.  The dissent then cited its own evidence from the record, offering support for the district court’s decision:

[R]espondent demonstrated substantial remorse, fully cooperated with the court and the presentence investigator, and had substantial support from the community, including family and friends. . . .

 

Other evidence in the record lends further support to the district court’s decision.  First, respondent’s probation officer stated that based on her personal contract with him and with his wide support group, she would recommend that he be placed on in-home monitoring and probation, rather than prison, and that he was a “pretty decent probation candidate.”  Second, [] a counselor from respondent’s most recent chemical dependency treatment program, opined that respondent was a “prime candidate” for in-patient treatment.  Finally, the presentence investigator [] acknowledged that chemical dependency in-patient treatment with a halfway house component would be a proper way to handle respondent.  [The investigator] further acknowledged that the proposed chemical dependency program for respondent would fulfill these suggested requirements. 

 

Id.at *7-*8.  The dissent concluded that “[g]iven the facts and record,” the district court’s decision to dispositionally depart was not an abuse of discretion.  Id.at *8. 

            The dispute here is not focused on the original sentencing order.  Instead, we review the second sentencing order by the district court.  On remand from this court, the district court[2] affirmed the findings of the original sentencing judge and sentenced respondent to 66 months with stayed execution, 365 days in jail with credit for time served, and ten years’ probation for the refusal-to-submit-to-testing conviction and three years’ probation for the fleeing-a-peace-officer conviction.  In reaching its decision, the district court put significant weight on the testimony of respondent’s probation officer, who testified:

Q:        And it’s true, that you have not filed a violation report for [respondent]?

                        A:        That is true.

                        Q:        Do you intend to?

                        A:        Not, not at this moment, no.

Q:        Okay.  And, it’s also true that you consider him amenable to probation?

                        A:        I do.

Q:        And, it’s also true that you believe that he has generally followed all the rules of the sentence set down by [the original district court]?

                        A:        Generally I would say that he’s followed the rules. 

 

After adopting the findings of the first district court, the second district court made additional findings and explained its reasoning for the decision, highlighting (1) the probation officer’s opinion testimony as to respondent’s amenability to probation[3]; (2) respondent’s completion of an educational program; (3) his job and observed status as a “meaningful and productive member of society”; (4) the lapse of nearly two years since the offenses in question; (5) the fact that respondent had served one year in county jail; (5) the fact that he had not committed any crimes since; and (6) that respondent was supporting his family.  The district court concluded, “it is specifically my [f]inding that [respondent] is amenable to probation supervision and that departure under all of these circumstances is warranted.”  This appeal follows. 

D E C I S I O N

            The state argues that the district court abused its discretion by again imposing a downward dispositional departure after the initial departure had been reversed and remanded by this court.  The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  While the district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” that warrant a departure, appellate courts do not generally interfere with a district court’s decision to depart downward.  State v. Donnay, 600 N.W.2d 471, 473 (Minn. App. 1999), review denied (Minn. Nov. 17, 1999).

A district court may impose probation rather than an executed sentence if the district court determines that the defendant is particularly amenable to probation.  State v. Love, 350 N.W.2d 359, 361 (Minn. 1984).  Whether an offender is amenable to probation depends on the offender’s ability to comply with probation conditions and to benefit from rehabilitation.  State v. Hickman, 666 N.W.2d 729, 732 (Minn. App. 2003).  Some relevant factors for consideration include the defendant’s age, prior record, signs of remorse, attitude while in court, and familial support—the so-called “Trog factors.”  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  “These factors are not to be applied mechanically, but must be evaluated within the individual facts of each case.”  State v. Sejnoha, 512 N.W.2d 597, 600 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994).  It is decidedly not the role of a reviewing court to substitute its own judgment for that of the district court in sentencing matters.  Id.at 601.

Here, the state argues that the district court once again abused its discretion by sentencing respondent to a probationary sentence because there is insufficient evidence of “substantial and compelling circumstances” to support a downward dispositional departure as required by the sentencing guidelines and caselaw.  The state supports its argument by asserting that (1) the respondent is not amenable to treatment, and (2) the district court’s disagreement with the sentencing guidelines is not a sufficient basis to justify a dispositional departure.

A.        Amenability to Treatment

            The state argues that respondent is not amenable to treatment or probation for a variety of reasons, but particularly because he has had “six prior felony convictions, four prior driving while under the influence convictions, [] an additional implied consent revocation from 1992[] . . . [and] suffers from an untreated chemical dependency addiction.”  In addition, the state correctly notes that respondent’s probation officer recommended a prison sentence at the first sentencing hearing, but then changed her position at the second sentencing hearing, considering respondent to be amenable to probation. 

            While it is true that respondent has an extensive criminal record, that is a factor that the district court weighed, along with others, in finding that respondent is “amenable to probation supervision and that departure under all of [the] circumstances is warranted.”  The state cites State v. Carter, 424 N.W.2d 821 (Minn. App. 1988), where we reversed the district court because we determined that the defendant was not amenable to treatment or probation.  In Carter,the district court departed “on the grounds that [respondent’s] crime was significantly less serious than the typical second degree assault”—the crime at issue in that case.  Id.at 823-24.  This court determined that the district court’s stated reason for its dispositional departure was not supported by the record.  Id.at 824.  Continuing, this court concluded that respondent was not particularly amenable to probation because the evidence did not support—and proper reasons were not given for—the downward dispositional departure.  Id.at 825.  On that record, we found an abuse of discretion.  Id.

            Such is not the case here.  First, it is essential to recognize the procedural posture of this case.  As the district court aptly recognized, “[W]e have the benefit of seeing what the [respondent] has done in [the] two years” since the original criminal charges were filed, something which is normally not available to the district court.  The district court noted, and the record reflects, that respondent has not committed any crimes in the nearly two years since the underlying offenses.  Moreover, the district court recognized many other positive accomplishments by respondent over the past two years—including completing an educational program, holding a job, and supporting his family.

The state urges that the district court’s reasons for departure are insufficient, having already been articulated by the original district court and subsequently rejected by this court on appeal.  But simply because we concluded that the district court abused its discretion in the original sentencing order does not mean that we must reach the same conclusion the second time.  As previously mentioned, new facts were available to the district court on resentencing, and it made a careful review and consideration of all the circumstances before it, “evaluat[ing] within the individual facts” of the case.  Sejnoha, 512 N.W.2d at 600.  The court acted within its discretion by concluding that the enumerated factors and the recommendation of respondent’s probation officer constituted substantial and compelling reasons for a downward dispositional departure.  We will not disturb that decision today. 

B.        Disagreement with the Sentencing Guidelines

Referencing respondent’s criminal history score under the sentencing guidelines, the district court in its decision disagreed with the guidelines and explained that it was inappropriate “to consider offenses such as [b]urglary, which occurred many years ago, for purposes of determining criminal history points” in this case.  The state argues that the district court erred by disagreeing with the sentencing guidelines and that such disagreement is not a sufficient basis to justify a dispositional departure.  As the state correctly notes, “[m]ere disagreement with the guidelines does not justify a departure from them.”  Carter, 424 N.W.2d at 823.  Instead, the reasons for a departure must be “substantial and compelling, taking into account (1) the severity of the offense, (2) the offender’s prior criminal history[,] and (3) the statement of purpose and principles” of the guidelines.  Id. 

The supreme court has also made clear that “[g]eneral disagreement with the [sentencing g]uidelines or the legislative policy on which the [g]uidelines are based does not justify departure.”  State v. Bellanger, 304 N.W.2d 282, 283 (Minn. 1981).  In that case, the supreme court found that the district court departed from the presumptive sentence for the “primary reason” that it disagreed with the guidelines as being “too lenient” for the circumstances presented in that case.  Id.(emphasis added).

But here the district court’s observation on resentencing was made after the district court placed detailed findings on the record supporting its finding of amenability to probation.  Accordingly, and under these circumstances, it was not an abuse of discretion to disagree in passing with the sentencing guidelines.  We determine that the district court’s fundamental disagreement with the sentencing guidelines did not form the primary basis of its decision on resentencing.

Finally, under the district court’s order, respondent could indeed face a lengthy prison sentence if he chooses to violate any one of the many conditions placed on his probation.  “The probation thus provides the district court with greater leverage to assure [respondent’s] success and the public’s safety.”  State v. Gebeck, 635 N.W.2d 385, 390 (Minn. App. 2001). 

            Affirmed.