This opinion will be unpublished and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

A05-1765

 

State of Minnesota,
Respondent,

vs.

Charles Riedel,
Appellant.

 

Filed July 11, 2006

Affirmed; motion denied

Stoneburner, Judge

 

Dakota County District Court

File No. K5042154

 

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

 

James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

Deborah Ellis, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN 55102 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant, who was convicted of first-degree criminal sexual conduct based on evidence that he engaged in sexual contact with his former girlfriend’s daughters when they were under the age of 16, challenges the district court’s denial of his motion for a downward sentencing departure.  Appellant argues that because the district court acknowledged that he established mitigating factors, the district court abused its discretion and violated his Sixth Amendment rights by failing to grant a downward departure.  Because we conclude that the district court did not abuse its discretion or violate appellant’s constitutional rights by imposing the presumptive sentence, we affirm.

FACTS

            The state charged appellant Charles Riedel with two counts of first-degree criminal sexual conduct, based on allegations that he had engaged in sexual contact with his former girlfriend’s two daughters between 1995 and 1997, when the girls were approximately 12 and 14.  One of the girls reported the abuse in March 2004.  She indicated that her mother, Margaret Simbeck, had acquiesced and also participated in the abuse.

            Because the state did not charge Simbeck at the time it charged Riedel, Riedel moved to dismiss the charges against him, alleging that he had been singled out for prosecution because of his gender, in violation of his due-process and equal-protection rights.  Following Riedel’s motion, the state charged Simbeck with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g) (2004).  The district court subsequently denied Riedel’s motion to dismiss, concluding that he had failed to establish a claim for selective prosecution.  Riedel then submitted the case to the court on the record.

            The district court found Riedel guilty of two counts of first-degree criminal sexual conduct but dismissed one count pursuant to the parties’ agreement.  The district court found that Riedel, with Simbeck’s acquiescence, engaged in vaginal and oral sex with Simbeck’s 12- and 14-year-old daughters over an extended period.  The court also found that Simbeck actively participated in the abuse and that, on at least five occasions, she watched while Riedel had oral sex and sexual intercourse with her daughters.            

            Riedel moved for a downward dispositional sentencing departure.  The court denied the motion and sentenced Riedel to the presumptive guidelines sentence of 86 months.  In her separate prosecution, Simbeck pleaded guilty to the charge against her and was sentenced under a plea agreement to a stayed 86-month sentence with conditions.[1]  This appeal by Riedel followed.

D E C I S I O N

I.

Riedel first argues that because he established that (1) he is amenable to probation and outpatient treatment and (2) the offense occurred ten years ago while he was suffering from a substance-abuse problem, the district court abused its discretion by denying his motion for a downward dispositional departure.  Riedel implies that the presence of mitigating factors compel a downward departure.  We disagree.  Under Minnesota law, the mere presence of mitigating factors “does not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.”  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001) (quotation omitted), review denied (Minn. Aug. 22, 2001).

            We review the district court’s decision on departure from the presumptive sentence for abuse of discretion.  See Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  A downward departure is appropriate only when substantial and compelling circumstances justify a departure.  State v. Thao, 649 N.W.2d 414, 421 (Minn. 2002).  Reversal of the sentencing court’s refusal to depart from the presumptive sentence is warranted only in “a rare case.”  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). 

Before imposing the presumptive sentence, the district court considered two psychosexual evaluations of Riedel.  Based on those evaluations, the district court found that Riedel is amenable to treatment.  But the court concluded that Riedel’s amenability to outpatient treatment is not substantial and compelling enough to outweigh the severity of the offense and warrant a downward dispositional departure.  When there are both mitigating and aggravating factors, the decision whether to depart is entirely within the district court’s discretion.  See State v. Shattuck, 704 N.W.2d 131, 140 (Minn. 2005) (stating that the district court has discretion to depart only when aggravating or mitigating circumstances are present).  We find no abuse of discretion in the district court’s determination that the aggravating factors in this case outweighed the mitigating factors.

            Riedel next argues that the district court incorrectly focused on the severity of the offense in deciding not to depart dispositionally.  According to Riedel, the decision to depart dispositionally must focus on the defendant’s amenability to treatment and probation rather than on the severity of the offense.  But under Minnesota law, offense-related aggravating factors may be used to support both dispositional and durational departures.  State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995) (stating that “offense-related aggravating factors may be used to support not only such a dispositional departure but, alternatively, an upward durational departure”).  Furthermore, Riedel’s claim is irrelevant because the district court did not rely on offense-related factors to support a departure; it imposed the presumptive sentence.

            Riedel also argues that the district court improperly considered elements of the underlying offense as aggravating factors.  But while a sentencing court may not base an upward durational departure on factors that the legislature has already taken into account in determining the degree or seriousness of the offense, the court may consider the conduct underlying the offense and the presence of aggravating factors when imposing the presumptive sentence.  See Taylor v. State, 670 N.W.2d 584, 589 (Minn. 2003); State v. McIntosh, 641 N.W.2d 3, 11 (Minn. 2002); State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984).

            Riedel also argues that the district court violated Blakely by finding aggravating factors.  See Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004) (requiring a jury to find aggravating factors for an upward sentencing departure).  But Blakely applies only to sentence departures and enhancements, not to the imposition of the presumptive sentence.  See State v. Shattuck,704 N.W.2d at 141.  Riedel’s claim that the district court’s failure to depart dispositionally was the equivalent of an upward departure that required jury findings is unsupported by any citation to authority and without merit.

II.

            Riedel also argues that he is entitled to a downward dispositional departure because he was subjected to selective prosecution and disparate gender-based treatment in sentencing that undermines the rationality of his sentence.  Riedel specifically argues that he is entitled to a dispositional departure because the state manipulated the victims’ wishes by charging Simbeck with only criminal sexual conduct against one daughter, who did not want Simbeck prosecuted. 

            To establish a claim of selective discriminatory prosecution, a defendant has the burden of proving that others similarly situated were not prosecuted and that the defendant was singled out for prosecution based on race, religion, or other improper considerations.  See State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984).  Although the conduct underlying the charges against Riedel and Simbeck was similar, Riedel cannot meet his burden of establishing that Simbeck was not prosecuted.  Simbeck was charged with and pleaded guilty to first-degree criminal sexual conduct, and she was sentenced to a stayed 86-month sentence with conditions.  Riedel also fails to meet his burden of establishing that Simbeck’s charge or sentence was based on impermissible considerations such as gender.  The record shows only that the prosecutor considered the victims’ wishes and the impact that an executed sentence would have had on the family unit in charging and in negotiating a plea with Simbeck.  As long as the state had probable cause to charge Simbeck and Riedel as it did and there is no evidence that it discriminated against Riedel because of his sex, the decision regarding what charges to bring rested entirely within the prosecutor’s discretion.  See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668 (1978) (stating that prosecutors must have considerable discretion in the charging decision); State v. Herme, 298 N.W.2d 454, 455 (Minn. 1980) (stating that “[a]s a general rule, the prosecutor's decision whom to prosecute and what charge to file is a discretionary matter which is not subject to judicial review absent proof by defendant of deliberate discrimination based on some unjustifiable standard such as race, sex, or religion”).  The record in this case does not support Riedel’s claim of discriminatory enforcement.

Similarly, Riedel is not entitled to a stayed sentence simply because Simbeck received a stayed sentence.  See State v. Vazquez, 330 N.W.2d 110, 112 (Minn. 1983) (stating that a defendant must argue that his sentence was too harsh, not that his co-defendant’s sentence was too lenient).  In this case, Simbeck’s family relationship with the victims distinguishes her situation from Riedel’s, and the sentence imposed on Simbeck is specifically allowed by statute.  There is no merit in Riedel’s assertion that the sentences had to be identical.

III.

The state moved to strike portions of Riedel’s brief, appendix, and supplemental record, arguing that they contained matters outside the record on appeal and should not, therefore, be considered.  The challenged documents relate to Simbeck’s case.  Although not part of the record in Riedel’s case, the documents are public records and may therefore be submitted for consideration in this case.  See In re Estate of Turner, 391 N.W.2d 767, 771 (Minn.1986) (stating that “we see no reason why a party may not submit . . . a [public] report to us as part of its brief when we could refer to such a report in the course of our own research, if we were so inclined”).  Accordingly, the state’s motion is denied.

            Affirmed; motion denied.