Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent),

John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant).

Considered and decided by Amundson, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

Appellant Jack Henry Cable argues that the district court abused its discretion in sentencing him to an executed 120-month sentence, instead of the presumptive 30-month stayed sentence. We affirm as modified.

Cable has a history of psychiatric problems and was committed to the Cambridge Regional Treatment Center. After Cable was released from Cambridge, he was placed in an assisted living home. A female human services worker, B.R., supervised the home during the night shift.

One night, Cable came downstairs, sat in a chair in the living room, and masturbated. B.R. told him that this was not appropriate and that he should go back to his room. When B.R. later went upstairs to use the bathroom, she found Cable standing on the stairs naked. Cable grabbed B.R. by the arms, pushed her to the floor, and choked her. He told B.R. that he was going to stick himself inside her and pulled her into a bedroom next to the bathroom. Cable lay on top of B.R. fondling her breasts and crotch as he masturbated. At one point, Cable grabbed B.R.'s hand, put it on his penis, and told her to masturbate him.

B.R. convinced Cable to let her use the bathroom, but he followed her into the bathroom, locked the door, and began masturbating again. Cable kept B.R. in the bathroom for more than an hour. When Cable went back to his room, B.R. ran outside, flagged down a taxicab, and called the police. When the police arrived, Cable had fled.

Cable entered an Alford guilty plea to one count of fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(c) (1996).[1] Cable's two criminal history points made the presumptive sentence a stayed term of 30 months. The district court granted the state's motion for a durational and dispositional departure and sentenced Cable to an executed 120-month sentence, the statutory maximum for fourth-degree criminal sexual conduct. Minn. Stat. § 609.345, subd. 2 (1996).

As a general rule, the offender-related factor of particular unamenability to treatment in a probationary setting may be used to justify a dispositional departure in the form of execution of a presumptively-stayed sentence but may not be used to support an upward durational departure. On the other hand, offense-related aggravating factors may be used to support not only such a dispositional departure but, alternatively, an upward durational departure.

State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995).

In Wright, the supreme court held that the district court did not abuse its discretion in departing from the presumptive sentence and sentencing the defendant to probation because the defendant was particularly unamenable to incarceration and particularly amenable to individualized treatment in a probationary setting. Id. at 462-63. This case is distinguishable from Wright because there is significant evidence in the record that Cable, unlike Wright, is not amenable to probationary supervision.

Unamenability to probation is grounds for a dispositional departure. State v. VanZee, 547 N.W.2d 387, 393 (Minn. App. 1996), review denied (Minn. July 10, 1996). The district court listed several reasons why a dispositional departure was appropriate. These reasons include that Cable has an antisocial personality and abused alcohol whenever he had the opportunity to do so; (2) Cable has a history of resisting medications, violating rules of treatment facilities, confronting authority, and running away from treatment facilities; (3) Cable has a history of hypersexuality, including exposing himself, masturbating before others, and making inappropriate sexual comments; and (4) no program is available that could reasonably contain Cable's aggressiveness and hypersexuality. Because the record supports the district court's findings that Cable is not amenable to probationary supervision, the district court did not abuse its discretion by ordering a dispositional departure from the sentencing guidelines.

When deciding whether to depart durationally, the district court must determine "whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984). The court should not analyze the egregiousness of the act in and of itself, but rather must analyze the act compared with other acts constituting the same offense. State v. Herrmann, 479 N.W.2d 724, 728 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). While the consequences of a defendant's act may be quite serious, if such serious consequences are required in the very commission of the act, they cannot be the grounds for a departure from the guidelines. Id. at 729-30.

Generally, a durational departure should not be greater than double the presumptive sentence. State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). The doubling limit does not apply when severe aggravating circumstances are present. State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988). In those circumstances, the only limit is the statutory maximum. Id. However, the departure must be proportional to the severity of the offense. Schantzen, 308 N.W.2d at 487.

The district court combined into a single list the findings that support its conclusion that substantial and compelling circumstances exist that warrant both a dispositional and a durational departure. It did not specify which findings supported which departure. Upon examination of the record as a whole, we conclude that the district court may improperly have considered Cable's unamenability to probation and potential for future violence in deciding to depart durationally from the sentencing guidelines. See Chaklos, 528 N.W.2d at 228 (unamenability to probation may only be used to support a dispositional, as opposed to a durational departure); State v. Cermak, 350 N.W.2d 328, 335 (Minn. 1984) (future likelihood of criminal behavior may not be relied on to support a durational departure). Nonetheless, the offense-related aggravating factors found by the court, by themselves, support a durational departure. If improper reasons are given to support a departure, we will affirm the departure if the evidence in the record is sufficient to support the departure. Chaklos, 528 N.W.2d at 228.

However, the aggravating factors that support a durational departure were not so severe as to justify a quadruple durational departure. See Perkins v. State, 559 N.W.2d 678, 692 (Minn. 1997) (criminal sexual conduct case addressing determination of whether severe aggravating circumstances are present). Therefore, we modify Cable's sentence to an executed term of five years, which is a double durational departure.

Affirmed as modified.

[1] See State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994) (defendant who maintains his innocence may plead guilty "if the defendant reasonably believes, and the record establishes, the state has sufficient evidence to obtain a conviction") (citing North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970).