This opinion will be unpublished and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

A04-2238

 

 

State of Minnesota,

Appellant,

 

vs.

 

Kathryn Lorraine Streiff,

Respondent.

 

 

Filed April 12, 2005

Affirmed; motion denied
Klaphake, Judge

 

Olmsted County District Court

File No. K9-02-1498

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Helen R. Brosnahan, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for appellant)

 

Duane A. Kennedy, 724 First Avenue S.W., Suite 3, Rochester, MN  55902; and

 

Samuel A. McCloud, Suite 1000, Circle K, Box 216, Shakopee, MN  55379 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            The state appeals from a sentence imposed on respondent Kathryn Lorraine Streiff following her plea to felony criminal vehicular operation.  The district court sentenced respondent to a gross misdemeanor sentence of one year, stayed on certain conditions, which represents a downward durational departure from the presumptive felony sentence of one year and one day, stayed.  The state argues that the district court abused its discretion by imposing a downward durational departure absent substantial and compelling circumstances.

            Because we conclude that the district court did not abuse its discretion, we affirm.

D E C I S I O N

            A district court’s decision to depart from the presumptive sentence under the sentencing guidelines is reviewed for an abuse of discretion.  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).  In order to depart without abusing its discretion, the district court must enumerate substantial and compelling circumstances that justify the departure.  Id.  When the district court sentences a defendant to a stayed gross misdemeanor sentence of one year, rather than the presumptive stayed felony sentence of one year and one day, it has made a downward durational departure from the presumptive sentence that must be justified.  State v. Cizl, 304 N.W.2d 632, 633 (Minn. 1981); State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).

            The sentencing guidelines contain a non-exclusive list of mitigating factors that may be used to justify a downward departure, including a catchall factor, “[o]ther substantial grounds . . . which tend to excuse or mitigate the offender’s culpability, although not amounting to a defense.”  Minn. Sent. Guidelines II.D.2.(a).  Generally, offender-related factors, such as amenability to treatment, remorse, age, and rehabilitation, are considered when departing dispositionally; offense-related factors, such as relative severity of the conduct compared to similar offenses, are considered when departing durationally.  State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995).

            The state correctly points out that most of the factors on which the district court relied are those traditionally associated with dispositional departures:  remorse, character, rehabilitation, amenability to probation, and alteration of lifestyle.  See, e.g., State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); State v. Sejnoha, 512 N.W.2d 597, 600 (Minn. App. 1994), review denied (Minn. Apr. 22, 1994); but see Bauerly, 520 N.W.2d at 762-63 (concluding that when imposing durational departure in sentencing for a crime against person, remorse or lack of remorse can relate to seriousness of offense). 

            The sentencing guidelines, while intended to “establish rational and consistent sentencing standards which reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender’s criminal history,” do not deprive the district court of all discretion in sentencing matters.  Minn. Sent. Guidelines I (Statement of Purpose and Principles).  This court previously stated that a strict limitation of “the trial court’s function in exercising discretion . . . implicates the independence of the judiciary under the rule of law.”  State v. Bendzula, 675 N.W.2d 920, 922 n.1 (Minn. App. 2004).  We further concluded that although the sentencing guidelines are intended to produce consistent results, they also act to preserve the traditional judicial discretion in sentencing by employing broadly stated, rather than narrowly prescriptive, standards.  Id. at 923. 

            Here, we are persuaded that the district court properly considered certain factors that may be atypical of the usual reasons for a downward departure, but which nevertheless are broadly related to distinguishing this offense from the typical offense of this nature.  The district court also acknowledged the wishes of the victim in this offense, appellant’s husband, who strenuously opposed both charging appellant and imposition of a felony sentence because he would suffer even greater harm. 

            The victim of an offense has a right by law to submit an impact statement at the time of sentencing.  Minn. Stat. § 611A.038 (2004).  The district court may consider the victim impact statement as the basis for departure.  State v. Yanez, 469 N.W.2d 452, 455 (Minn. App. 1991), review denied (Minn. June 19, 1991).  In the usual case, the victim impact statement has supported an upward durational departure.  See id.  But we see no reason to ignore the victim impact statement when it supports a downward durational departure.

            The state very properly ignored the victim’s request not to charge appellant; the state, and not the victim, has the duty to investigate criminal conduct and file appropriate charges.  Sentencing, and discretion in sentencing, is reserved to the courts.  See State v. Streiff, 673 N.W.2d 831, 836 (Minn. 2004) (“At one end of this spectrum, bringing charges and plea bargaining, the discretion rests almost entirely with the prosecutor.  At the other end of the spectrum, the imposition of the sentence or staying the imposition or execution of a sentence, the discretion rests almost entirely with the court.”).  In performing this task, the court must balance competing considerations, including the sentencing guidelines, victim impact statements, constitutional implications, and its own observations.  From the record before us, the district court weighed these competing considerations and arrived at a conclusion that is within its discretion to make.

            Respondent moves for an award of attorney fees incurred in both this appeal and an earlier appeal filed by the state.  There might have been a basis for an award of fees in the earlier appeal under Minn. R. Crim. P. 28.04, subd. 2(6) (permitting reasonable attorney fees and costs in state’s appeal of a pretrial order).  But the criminal rules do not authorize an award of appellate fees on appeal from a sentence under Minn. R. Crim. P. 28.05.  Because this is an appeal from a sentence rather than a pretrial prosecution appeal, appellate fees are not authorized.  We therefore deny respondent’s motion for attorney fees.

            Affirmed; motion denied.