State of Minnesota,
Respondent,

vs.

Dean Francis Manypenny,
Appellant.

Ramsey County District Court
File No. KX984054

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Gary R. Bryant-Wolf, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Foley, Judge.[*]

SCHUMACHER, Judge

Dean Francis Manypenny appeals the revocation of his probation, arguing that the district court abused its discretion in not hearing or considering his argument for a downward durational departure. We affirm.

Manypenny pleaded guilty to first-degree sale of cocaine. The district court granted his motion for dispositional departure and stayed execution of the 86-month presumptive sentence to probation for ten years. As a condition of probation he was required to serve a six-month sentence.

One month after sentencing, Manypenny walked away from the correctional facility while on a work crew. A warrant for his arrest was issued, and he was apprehended approximately two months later.

At his probation revocation hearing, Manypenny admitted violating his probation and argued for a downward durational departure in his sentence. The court refused to durationally depart from the guideline sentence, revoked probation, and executed the sentence. Manypenny appeals.

Once an offender has admitted to violating a condition of probation, the trial court may either continue that person on probation or revoke probation and execute a previously imposed sentence.[1]   Minn. R. Crim. P. 27.04, subd. 3(3)(b).

The trial court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.

State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). On appeal, this court may review the sentence executed to determine if it is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or unwarranted by the findings of fact issued by the district court. Minn. R. Crim. P. 28.05, subd. 2.

Manypenny argues that the district court abused its discretion in refusing to hear and summarily dismissing his argument for a downward durational departure. The record shows that his counsel argued for a durational departure based on the fact that Manypenny played only a minor role in the crime, is a first-time offender, assisted the federal government in another case, was successful at the correctional facility, and walked away only because he missed his children. The record also shows that, contrary to Manypenny’s argument, the court did not interrupt counsel’s argument and that the court considered counsel’s argument when executing the sentence.

Manypenny next argues that the district court abused its discretion in not durationally departing from the presumptive sentence because he played a minor role in the crime and because he is a first-time offender. The decision to depart rests within the district court’s discretion and will not be reversed absent an abuse of that discretion. State v. Evenson, 554 N.W.2d 409, 412 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). Manypenny argues that the sentencing guidelines recognize a defendant’s role in a crime as a mitigating factor. The district court may consider a defendant’s passivity, but the determination of whether or not to depart is a discretionary decision. State v. Sherwood, 341 N.W.2d 574, 577-78 (Minn. App. 1983). "Even where grounds exist justifying departure, an appellate court will not ordinarily interfere with the imposition of the presumptive sentence." Evenson, 554 N.W.2d at 412. Manypenny admitted when he pleaded guilty that his participation was vital to the crime taking place.

Furthermore, lack of a felony record is considered in determining a presumptive sentence, under the criminal history score, and is not grounds for departure. State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). We find no abuse of discretion in the revocation of probation and execution of the guideline sentence.

[1] The state argues that Minn. R. Crim. P. 27.04, subd. 3(3)(b) does not provide for resentencing in a probation revocation proceeding, as requested by Manypenny. This argument has been rejected by the Minnesota Supreme Court. See State v. Hockensmith, 417 N.W.2d 630, 633 (Minn. 1988) (district court has discretion to reduce defendant's sentence before or simultaneously with revoking stay of execution).