This opinion will be unpublished and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
A06-995


State of Minnesota,
Respondent,

vs.

Marco Lara Gomez,
Appellant.

 

Filed October 23, 2007

Affirmed

Klaphake, Judge

 

Stearns County District Court

File No. K6-05-2489

 

 

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

 

Janelle Prokopec Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, Room 448, Administration Center, 705 Courthouse Square, St. Cloud, MN  56303 (for respondent)

 

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

 

            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

 

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Marco Lara Gomez challenges his sentence for first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(b) (2004) (sexual penetration with victim aged 13 to 16 where defendant is 48 months older and in position of authority over victim), for sexually abusing his stepdaughter over several years.  Appellant argues that expert testimony showing his good prognosis for treatment and a low risk of recidivism, along with his willingness to take responsibility for the offense, supported a downward dispositional departure from the presumptive sentence.  Because the district court did not abuse its discretion in sentencing, we affirm.

D E C I S I O N

            The district court imposed a 108-month executed sentence, which constitutes a 36-month downward durational departure from the presumptive 144-month sentence.  “The purpose of the sentencing guidelines is 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.”  Minn. Sent.  Guidelines I.  Whether to depart from the guidelines rests within the district court’s discretion, and this court will not reverse the decision absent a clear abuse of discretion.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001.)

            Appellant claims that the court’s sentencing decision was an abuse of discretion because he provided substantial and compelling reasons for a downward dispositional departure that would have allowed him to enter an individualized treatment program instead of being sent to prison.  Factors for a sentencing court to consider in determining whether an offender’s particular amenability to treatment in a probationary setting will justify a dispositional departure include “the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family.”  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); see State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983) (noting that for dispositional departure, sentencing court “can focus more on the defendant as an individual and on whether the presumptive sentence would be best for him and for society”).  In Trog, all of these factors were present, and the supreme court affirmed a downward dispositional departure in a case involving an “outstanding citizen” who, while intoxicated, committed the offense of burglary with assault.  323 N.W.2dat 29. 

            Some of the Trog factors are present in this case.  Appellant has cooperated with authorities, demonstrated a good attitude in court, and appears to have the support of friends and family, with the exception of his nuclear family.  He also seems to be remorseful, having stated to his probation officer, “It was my fault[;] I sexually abused her[;] I have hurt my step-daughter.”  Further, a forensic psychologist who evaluated appellant as a sex offender gave him a low to medium risk of re-offending.   

            Some of the Trog factors, however, do not support appellant’s request for a downward dispositional departure. Appellant’s criminal record includes two misdemeanor offenses involving domestic abuse within his family:  a 1995 conviction for fifth-degree assault, and a 1995 conviction for violation of an order for protection.  For both of these offenses, appellant was ordered to participate in anger management counseling, but by his own admission, he did not complete this counseling.  See State v. Hickman, 666 N.W.2d 729, 732 (Minn. App. 2003) (noting amenability to probation “depends on an offender’s ability to comply with the conditions of probation and benefit from the opportunity for rehabilitation”).  Further, according to the victim and others within appellant’s immediate family, appellant has continued in a course of threatening and assaultive conduct toward them for many years.  When the victim attempted to report this offense, appellant punched her on the side of the face.  In addition, the Trog court warned of the danger that particular amenability to individualized treatment in a probationary setting could be “loosely applied.”  323 N.W.2d at 31 (quotation omitted).  As the state points out, almost every offender could argue that individualized treatment would be more beneficial than an executed prison sentence. 

            The district court was aware of all of these factors and noted that this was a “close call.”   Because appellant’s criminal history and past conduct do not show that he is particularly amenable to probation and because there were aggravating sentencing factors in this case, the district court properly exercised its discretion in declining to impose a downward dispositional departure from the presumptive sentence.

            Affirmed.