Michael S. Jesse, Benton County Attorney, Suzanne Bollman, Assistant Benton County Attorney, Benton County Courthouse, P.O. Box 129, Foley, MN 56329 (for Appellant)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue S.E., #600, Minneapolis, MN 55414 (for Respondent)

Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.

Appellant state argues that the district court clearly abused its discretion by departing downward durationally from the presumptive sentence for criminal sexual conduct. We affirm.

The longest presumptive sentence for the five counts was 54 months. The district court sentenced Harris to 36 months, plus a maximum supervised release term of 18 months, and an additional five-year conditional release. This appeal followed.

I feel that the defendant's own childhood time spent in foster care and victimization by siblings in his own family caused an impairment of judgment seriously affecting his ability to understand and appreciate his own conduct in this case.

The Minnesota Sentencing Guidelines prohibit social factors from being used as reasons for departure. Minn. Sent. Guidelines II.D.1.d. The supreme court has held that a defendant's childhood sexual abuse is a social factor that cannot be used as a ground for departing. State v. Brusven, 327 N.W.2d 591, 594 (Minn. 1982).

Harris argues that the district court was basing the downward departure not specifically on his childhood victimization, but on his psychological problems that resulted in his impaired judgment. While this may be true, the district court articulated the childhood sexual abuse as a reason for the departure. Moreover, the supreme court has held that in order to mitigate a sentence, a defendant's mental impairment must be extreme. See State v. Lee, 491 N.W.2d 895, 902 (Minn. 1992). There was no finding of extreme mental impairment in this case.

I feel that the defendant is particularly suitable to individualized treatment in a probationary setting. I considered the State v. Trog factors. I further considered the defendant's remorse and expressed desire for treatment and there appears to be moral support from the community and his family.

In State v. Trog, the supreme court held that the defendant's remorse, cooperation, attitude while in court, and the support of friends and/or family, were relevant in determining whether he was particularly suitable to individualized treatment in a probationary setting. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). It is true that Trog concerned a downward dispositional departure, rather than the durational departure that is at issue in this appeal. The rationale is still valid, however, since the district court concluded that the combination of 36 months commitment and probation would best ensure that Harris receive in-patient treatment. The district court's use of the Trog factors was not a clear abuse of discretion.

I considered the fact that B.K. in his statement to the Court indicated his primary concern for the defendant was treatment and I feel that the defendant will receive treatment in the setting that's probably the best option available for treatment.

The record supports the district court's assessment of the victim's concerns. Minnesota law requires that the presentence investigation include a statement by the victim of what he or she deems appropriate punishment for the defendant. Minn. Stat. § 611A.037, subd. 1(b) (1996). Given that statutory requirement, it is not a clear abuse of discretion that the district court used B.K.'s testimony as a basis for its departure.

Further, the district court reasonably decided that a reduced sentence and clearly limited probation was most likely to produce the means for the defendant to receive quality in-patient treatment. State v. Dokken, 487 N.W.2d 914, 918 (Minn. App. 1992) (a downward dispositional departure--a stayed sentence in favor of probation--was appropriate where "[t]he trial court correctly determined that greater leverage for treatment was available through strict terms of probation rather than executing a presumptive sentence."), review denied (Minn. Sept. 30, 1992).

Although the district court's use of Harris's childhood sexual abuse was an invalid ground for a sentencing departure, the district court's decision for the downward durational departure was well-founded on the Trog grounds and on the court's assessment that this would be the sentence most likely to result in in-patient treatment for Harris. We conclude that there was no clear abuse of discretion.

Affirmed.

HARTEN, Judge, concurring specially.

To the extent applicable, I reiterate the considerations set forth in my special concurrence in State v. Dokken, 487 N.W.2d 914, 919-20 (Minn. App. 1992), review denied (Minn. Sept. 30, 1992).