This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1786

 

State of Minnesota,

Appellant,

 

vs.

 

Jason Marque Sole,

Respondent.

 

Filed June 19, 2007

Affirmed

Parker, Judge*

 

Washington County District Court

File No. K7-05-7305

 

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

 

Doug Johnson, Washington County Attorney, Robert J. Molstad, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082 (for appellant)

 

Charles A. Ramsay, Sharon R. Osborn, Ramsay & Devore, P.A., 450 Rosedale Towers, 1700 West Highway 36, Roseville, MN 55113 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Worke, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

 

PARKER, Judge

 

            Appellant State of Minnesota challenges respondent’s sentence for first-degree controlled-substance crime, under Minn. Stat. § 152.021, subd. 1(1) (2004), arguing that the district court abused discretion in granting a downward dispositional departure.  Because we find that the district court’s decision was supported by the record, we affirm.

D E C I S I O N

            Appellant State of Minnesota argues that the district court abused discretion by departing downward from the sentencing guidelines and that the record does not support a finding that mitigating factors support the departure.  On appeal, a departure from the sentencing guidelines is reviewed for abuse of discretion.  State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).  A 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).  “[I]n exercising the discretion to depart from a presumptive sentence, the judge must disclose in writing or on the record the particular substantial and compelling circumstances that make the departure more appropriate than the presumptive sentence.”  Minn. Sent. Guidelines II.D.

This court reviews a sentencing departure to determine whether the district court has stated proper grounds for the departure, or whether such grounds appear in the record.
State v. Carter, 424 N.W.2d 821, 823 (Minn. App. 1988).  The reviewing court must examine the record to determine whether it supports the district court’s stated reasons for a departure.  State v. Sebasky, 547 N.W.2d 93, 100 (Minn. App. 1996), review denied (Minn. June 19, 1996).

The Minnesota Sentencing Guidelines provide a list of nonexclusive factors that support granting a downward departure.  Minn. Sent. Guidelines II.D.2.  Amenability to probation is not listed among the factors, but a district court may impose probation “in lieu of an executed sentence when the defendant is particularly amenable to probation.”  State v. Gebeck, 635 N.W.2d 385, 389 (Minn. App. 2001).  In determining a defendant’s amenability to probation, the district court may consider the defendant’s age, prior record, remorse, cooperation, attitude while in court, and the support of friends or family.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).   The district court may focus on the defendant as an individual and determine whether the presumptive sentence would be best for the defendant and society.  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).

Here, respondent Jason Sole, a college student, was supported at sentencing by a number of his fellow students and professors.  Prior to his arrest, Sole was involved with student and community groups, and had been elected “Student of the Year” at his university.  Letters were submitted on Sole’s behalf to the court from his mother, his former employer, and from the university president.  A vice president of the school and a professor testified on his behalf at sentencing, and spoke of Sole’s community involvement and his potential, and their commitment to helping Sole.  The professor testified:

[Sole’s promise] is a promise I trust.  This is a promise I sincerely trust.  In this particular case, a dispositional departure makes one hundred percent sense to me, and anything I can do over the rest of my life to support this young man’s well-being and integrity, I will support his responsibility, and I will support surrounding him with a network of supports and opportunities so that he does in fact stay on the right track.

 

The district court sentenced Sole to the presumptive sentence, but made a downward dispositional departure by staying the sentence and imposing one year in a work-release program, a 400-hour community-service requirement, and 20 years of probation, with conditions.  In departing, the district court stated that Sole is amenable to probation and that it would adopt the arguments in Sole’s motion for departure as the reasons for the downward departure.  The district court stated on the record that “the amount of support, the amount of good you’re capable of doing does offset what the prison sentence would do.  I can see that, you know, the potential for good is here, and I’m willing to give you a chance, but chance it is.”

Given the evidence of strong support for Sole, we conclude that the district court did not abuse discretion by finding Sole amenable to probation.  Sole’s remorse, cooperation, and attitude also support his amenability to probation.  Cf. Trog, 323 N.W.2d at 31.  And amenability to probation is a permissible reason to dispositionally depart from a presumptive sentence.  Gebeck, 635 N.W.2d at 389.  The district court has focused on Sole as an individual, and concluded that departing from the presumptive sentence is “best for him and society.”  Heywood, 338 N.W.2d at 244.  The district court’s decision to depart is supported by the record.

            Affirmed.