This opinion will be unpublished and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

A05-1194

 

 

State of Minnesota,

Respondent,

 

v.

 

Dale A. Hessler,

Appellant.

 

 

Filed July 18, 2006

Affirmed

Toussaint, Chief Judge

 

St. Louis County District Court

File No. K5-02-601387

 

 

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

 

Alan L. Mitchell, St. Louis County Attorney, John E. DeSanto, Assistant County Attorney, 100 North Fifth Avenue West, #501, Duluth, MN 55802-1298 (for respondent)

 

John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Dale A. Hessler challenges his sentence for first-degree criminal sexual conduct, arguing that the district court abused its discretion by (1) denying his motion for a downward dispositional departure; (2) failing to make findings on the presumptive sentence; and (3) ordering a ten-year conditional release term under section 609.109, subdivision 7.  Because the district court did not abuse its discretion in sentencing or err by imposing a ten-year conditional release term, we affirm.

D E C I S I O N

I.

            Appellant argues that the district court abused its discretion by denying his motion for a downward dispositional departure.

“[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  The district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” to warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  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).

A district court may choose to depart from the presumptive guidelines sentence by imposing probation instead of an executed sentence when a defendant is amenable to probation.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  Amenability to probation depends on numerous factors, including the defendant’s age, prior record, remorse, cooperation, attitude while in court, and support of friends and family.  Id.  “Only in a rare case would a sentencing court’s refusal to depart warrant reversal.”  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001) (quotation omitted), review denied (Minn. Aug. 22, 2001).  Furthermore, the court is not obligated to grant a dispositional departure merely because a mitigating factor is present.  Id.

Here, appellant was convicted of first-degree criminal sexual conduct for an incident involving his four-year-old granddaughter.  He moved for a dispositional departure on the basis that (1) he took full responsibility for the offense; (2) he expressed remorse; (3) he wanted treatment; (4) he could be accepted in the Northeast Regional Correction Center (NERCC) sex-offender treatment program with several conditions; and (5) he was at a critical stage in his life during which treatment would be helpful.  

The district court heard and considered testimony from Dr. Stephen Olmsted, the clinical psychologist who evaluated appellant; NERCC Superintendent Warren L. Salmela; and Charlene Appelwick, the probation officer who conducted appellant’s presentence investigation report.  Dr. Olmsted testified that appellant needed more than one year of treatment at NERCC, but Salmela testified that commitments of longer than one year violated NERCC’s license and that NERCC was overcrowded.  NERCC’s staff also evaluated appellant and recommended that he participate in at least two years of actual treatment.  Appelwick testified that NERCC, among other options, would be an appropriate placement for appellant’s treatment needs but specifically did not recommend a dispositional departure.  She testified that while appellant’s chances for treatment would be reduced in prison, she could not say that appellant would absolutely be denied treatment if an executed prison sentence were imposed.  Given this record, the district court did not abuse its discretion by imposing the presumptive sentence.

II.

            Appellant also argues that the district court erred by imposing the presumptive sentence without making written or oral findings.

“Even where grounds exist justifying departure, an appellate court will not ordinarily interfere with the imposition of the presumptive sentence.”  State v. Evenson, 554 N.W.2d 409, 412 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  Written findings are not required when a district court imposes the presumptive sentence after considering reasons to depart.   State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984); see also Minn. R. Crim. P. 27.03, subd. 4(C) (requiring findings to support a departure).   “The sentences provided in the Sentencing Guidelines Grid are presumed to be appropriate for every case.”  Minn. Sent. Guidelines II.D.  But when a sentence is contested, the district court must make oral or written findings on the record.  Minn. R. Crim. P 27.03, subd. 1(F).

Here, the district court convened a hearing, considered the evidence, concluded that no “substantial or compelling facts” existed for a downward dispositional departure, and ordered the presumptive sentence orally on the record.  This clearly satisfied the requirements of sentencing.  We note that appellant’s authorities to the contrary are inapposite as they pertain only to probation revocations, not sentencing hearings.  See State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980) (adopting rule that Minnesota courts must make three findings before revoking probation); State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005) (reaffirming Austin’s procedural rule).   Strict compliance with a findings requirement has generally only been required when the court departs.  See State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003).

III.

 

            Appellant argues that the district court erred by imposing a ten-year conditional release period rather than a five-year conditional release period under Minn. Stat. § 609.109, subd. 7(a) (2004).

This court may review a sentence to determine whether it is “inconsistent with statutory requirements” and may direct entry of an appropriate sentence.  Minn. Stat. § 244.11, subd. 2(b) (2004).  Whether the district court properly construed a sentencing statute is a question of law subject to de novo review.  State v. Wukawitz, 662 N.W.2d 517, 525 (Minn. 2003).

Appellant was on probation for a felony incest conviction under Minn. Stat. § 609.365 (1998) when he was convicted of first-degree criminal sexual conduct under Minn. Stat. § 609.342.  At sentencing for the criminal-sexual-conduct offense, the district court considered the prior felony-incest conviction and imposed a ten-year conditional release period pursuant to the following conditional release statute:

If the person was convicted for a violation of section 609.342, 609.343, 609.344, or 609.345, the person shall be placed on conditional release for five years . . . .  If the person was convicted for a violation of one of those sections after a previous sex offense conviction [defined as “a violation of sections 609.342 to 609.345 or any similar statute of the United States, this state, or any other state”] . . . the person shall be placed on conditional release for ten years, minus the time the person served on supervised release.

 

Minn. Stat. § 609.109, subds. 5, 7(a) (2004).

            Appellant argues that the felony incest statute is not “any similar statute” as used in the conditional release statute.   For the ten-year period to apply, incest must be “similar” to the criminal-sexual-conduct statutes.  Clearly, incest is a sex offense.  See Minn. Stat. § 609.365 (“Whoever has sexual intercourse with another nearer of kin to the actor than first cousin, computed by rules of the civil law, whether of the half or the whole blood, with knowledge of the relationship, is guilty of incest . . . .”).  Incest also has some of the same elements as the criminal-sexual-conduct offenses enumerated in the conditional release statute.  Compare Minn. Stat. § 609.365 (defining incest) with Minn. Stat. §§ 609.342-.345 (defining degrees of criminal sexual conduct).  Most significantly, some conduct could be charged as either incest or as a criminal-sexual-conduct offense.  See Minn. Sent. Guidelines cmt II.A.04 (stating that incest is unranked offense because “great majority of incest cases are prosecuted under the criminal sexual conduct statutes . . . and when the offense would have been a violation of one of the criminal sexual conduct statutes, the severity level of the applicable criminal sexual conduct statute should be used.”).

Here, the underlying facts of appellant’s incest conviction could have supported a conviction of criminal sexual conduct.  See Minn. Stat. § 609.344, subd. 1(e), (f), .345, subd. 1(e), (f) (defining offenses in which perpetrator has “significant relationship” or was in “position of authority” over complainant).  He was convicted of incest after he had sexual intercourse with a 16-year-old boy who was his purported son.  Although he was charged with and convicted of incest, he could have been charged with third- or fourth-degree criminal sexual conduct.  See State v. Cook, 617 N.W.2d 417, 419-20 (Minn. App. 2000) (noting that although section 609.109, subdivision 7, did not specifically refer to intra-familial sexual abuse statutes, “conduct underlying [those statutes] is now proscribed by sections that are enumerated”), review denied (Minn. Nov. 21, 2000).  Because the underlying conduct of appellant’s incest conviction is proscribed by sections enumerated in section 609.109, subdivision 7, we conclude it constitutes a “similar” sex-offense conviction under the conditional release statute.

Finally, if incest is not an offense “similar” to criminal sexual conduct, it is unclear what would be “similar.”  Appellant argues that when interpreting a penal statute the rule of strict construction applies and any reasonable doubts are to be resolved in favor of the defendant.  See State v. Olson, 325 N.W.2d 13, 19 (Minn. 1982).  Under these circumstances, however, there are no doubts as to the applicability of the ten-year conditional release term as a condition of appellant’s sentence.

            Affirmed.