This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-780

State of Minnesota,

Respondent,

vs.

Katherine Josephine Neubarth,

Appellant.

Filed February 18, 1997

Affirmed

Willis, Judge

St. Louis County District Court

File No. K195600605

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Alan L. Mitchell, St. Louis County Attorney, Gary W. Bjorklund, Assistant County Attorney, 100 North Fifth Avenue West, Duluth, MN 55802 (for Respondent)

Lawrence W. Pry, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Forsberg, Judge.[*]

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant challenges the district court's refusal to depart dispositionally or durationally from the presumptive 48-month sentence for her conviction of aggravated robbery in the first degree. We affirm.

FACTS

On September 8, 1995, Shawn Gilbert entered a store, pointed a revolver at a store employee, and demanded that she give him the money from the cash register and her purse. The employee complied and Gilbert ordered her to lie on the floor, threatening to shoot her if she got up. Appellant Katherine Neubarth planned the robbery with Gilbert, drove him to the store, entered the store before Gilbert to see if anyone was inside, and waited in the car for him during the robbery.

D E C I S I O N

Where an "individual case involves substantial and compelling circumstances" a court may depart from the sentencing guidelines. Minn. Sent. Guidelines II.D; State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). District courts have broad discretion in deciding whether to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). It is only in a "rare case" that a reviewing court will reverse a district court's decision to impose the presumptive sentence. Id.

Neubarth argues that the district court should not have imposed the presumptive sentence because substantial and compelling circumstances for departure were present. Specifically, she argues that (1) a downward durational departure is justified because her impaired psychological and emotional condition led to a diminished capacity for judgment and (2) a dispositional departure is justified because she is particularly amenable to individualized treatment in a probationary setting.

The sentencing guidelines authorize a downward durational departure when "[t]he offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed." Minn. Sent. Guidelines II.D.2.a(3). Neubarth asserts that because she was raped two months before the robbery and was under treatment for depression, she lacked substantial capacity for judgment.

A trial court may depart dispositionally if the offender is "particularly amenab[le] to individualized treatment in a probationary setting." State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Neubarth argues that her lack of a prior criminal record, her youth, her remorse for her actions, and the support of her family and pastor are adequate grounds for a dispositional departure.

Neubarth argues that the district court wrongly concluded there were no mitigating factors and that the case must therefore be remanded, citing State v. Curtiss, 353 N.W.2d 262 (Minn. App. 1984). In Curtiss, this court concluded there were circumstances for departure that the trial court failed to consider and remanded for consideration of those circumstances. Id. at 264.

Here, there is no indication in the record that the district court failed to consider facts favorable to departure. On the contrary, the court delayed the conclusion of the sentencing hearing to consider Neubarth's arguments for departure, as well as to consider the state's arguments for imposing the presumptive sentence. The district court's conclusions that there were no substantial and compelling reasons to depart and its imposition of the presumptive sentence were not improper.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.