This opinion will be unpublished and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

C2-96-1438

State of Minnesota,

Respondent,

vs.

Peter Henry Jennings,

Appellant.

Filed March 11, 1997

Affirmed

Mulally, Judge

[*]

Hennepin County District Court

File No. 95023910

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Gary R. Leistico, Rinke-Noonan, 700 Norwest Center, Post Office Box 1497, St. Cloud, MN 56302 (for Appellant)

Considered and decided by Huspeni, Presiding Judge, Parker, Judge, and Mulally, Judge.

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

MULALLY, Judge

Peter H. Jennings appeals from his sentence for second-degree criminal sexual conduct, arguing the trial court improperly refused to downward depart on the sentence because Jennings chose to exercise his right to trial and did not plead guilty. We affirm.

FACTS

In November 1992, Jennings's daughter accused him of sexually abusing her for two-and-a-half years while she lived with him in Minnesota. In August 1993, Jennings was interviewed by the Douglas County Sheriff's Department and he admitted he inappropriately touched his daughter. Jennings, however, refused to participate in sex offender treatment programs.

On January 13, 1996, Jennings was convicted of second-degree criminal sexual conduct. Throughout trial, Jennings denied that he sexually abused his daughter.

The presentence investigation report, conducted by court-appointed psychologist Dr. Mary Kenning, indicated that while there were some positive factors that made Jennings "a good candidate for probation," "his apparent self-centeredness, lack of insight and defensiveness give caution about his amenability to treatment." Dr. Kenning also noted that Jennings was "unlikely to cooperate fully with treatment." Dr. Kenning concluded that "[t]here do not appear to be any compelling risk or treatment amenability factors that would recommend departure."

Two other evaluations were completed before sentencing that indicated Jennings felt sorry for his actions and was amenable to probation. The probation officer recommended a stay of execution and ten years probation.

At sentencing, the trial court found Jennings's proclaimed amenability not credible because Jennings had previously rejected counseling and continued to deny the charges during trial. The court indicated that it was only after he was convicted that he expressed a willingness to enter treatment. The trial court refused to depart downward and sentenced Jennings to the presumptive 48-month term. Jennings appeals.

D E C I S I O N

The trial 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). A decision to depart from the sentencing guidelines rests within the trial court's broad discretion and will not be reversed absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), overruled on other grounds by State v. Givens, 544 N.W.2d 774, 777 n.4 (Minn. 1996); see also Kindem, 313 N.W.2d at 7 (holding that only "rare" cases warrant reversal of refusal to depart).

1. During sentencing, the trial court said:

It's harder for me to accept that you are totally amenable to treatment when that comes instead after a decision of let's see if the girl will come from California; if she comes, let's see if she can face me in court and testify against me. If she does that, let's see if the jury believes her, and if not, let's see if the jury believes me, and having lost all of those, now I am ready for treatment * * *. * * * I think it's possible that you could successfully complete some sort of appropriate treatment here, but it's not a strong position to be arguing from where it comes out of a * * * desire to simply stay out of jail.

Jennings argues the court's comments indicate it improperly based its refusal to depart on Jennings's decision to exercise his right to stand trial. See State v. Mollberg, 310 Minn. 376, 388, 246 N.W.2d 463, 471 (1976) (exercising right to trial by jury must have no bearing on sentence imposed). We disagree.

A sentencing court may dispositionally depart and place a defendant on probation if the defendant is "particularly amenable to probation or if offense-related mitigating circumstances are present." State v. Love, 350 N.W.2d 359, 361 (Minn. 1984). The appropriate factors to consider 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). The trial court is in the best position to evaluate the defendant's credibility. See State v. Sejnoha, 512 N.W.2d 597, 600 (Minn. App. 1994) (trial court in best position to assess sincerity and depth of remorse), review denied (Minn. Apr. 21, 1994).

Here, the sentencing transcript shows that the trial court was comparing Jennings's attitude before, during, and after trial in order to evaluate his desire to participate in treatment, whether he understood the impact of his offense on the victim, and his remorsefulness. The trial court's questioning of Jennings's decision to proceed with trial merely indicates the trial court was assessing Jennings's credibility. The trial court, therefore, did not use Jennings's decision to proceed with trial to justify the presumptive sentence; it used the attitude implicit in that decision to determine his amenability to probation. Based on the overall context of the sentencing transcript, the trial court did not base its refusal to depart on Jennings's decision to proceed with trial.

2. Jennings argues the trial court abused its discretion by refusing to depart downward on the sentence. The record shows Jennings confessed to the inappropriate touching, failed to participate in sex-offender programs, denied abusing his daughter at trial even when confronted with his confession, and had inappropriately touched another daughter. While the record does indicate some facts that favor a departure, the record does not show "substantial and compelling circumstances" to justify a departure. The trial court did not abuse its discretion in refusing to depart downward.

Affirmed.

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