Opinion
No. A04-2322.
Filed January 31, 2006.
Appeal from the District Court, Polk County, File No. K9-03-995.
Mike Hatch, Attorney General, and Gregory A. Widseth, Polk County Attorney, (for respondent).
John M. Stuart, State Public Defender, F. Richard Gallo, Jr., Assistant Public Defender, (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Appellant challenges her sentences on two counts of second-degree criminal sexual conduct, arguing that the district court abused its discretion by denying appellant's request for a downward dispositional departure, despite the presence of mitigating factors. Because a district court is not required to depart downwardly even when mitigating factors are present and because appellant's claimed mitigating factors do not make this the rare case that warrants the reversal of the district court's refusal to depart, we affirm.
FACTS
Appellant Jean Marie Solmon and her husband, Arnold Solmon ("Solmon"), sexually abused appellant's minor child, J.L.S., on numerous occasions between March 1995 and July 1995. Solmon is J.L.S.'s step-father. J.L.S. reported Solmon's sexual abuse, and in October 1995, Solmon pleaded guilty to first-degree criminal sexual conduct and was sentenced to 91 months in prison. J.L.S. did not notify anyone of appellant's participation in the sexual abuse until June 1996, when she disclosed it to her counselor during a therapy session. Both appellant and Solmon denied such participation, and no charges were brought against appellant at that time based on J.L.S.'s allegations.
In January 2003, another minor child of appellant, T.A.S., reported that appellant had sexually abused her and also substantiated J.L.S.'s earlier reports of appellant's sexual abuse of J.L.S. During the state's investigation of these allegations, appellant admitted to sexual contact with J.L.S. but stated that Solmon forced her to participate in the abuse. Still incarcerated, Solmon denied in an interview that he forced appellant to participate in the sexual abuse of J.L.S. and stated that appellant acted voluntarily. Solmon also provided the state with letters that he had received from appellant in which she admitted to having sexual contact with T.A.S.
In June 2003, the state charged appellant with three counts of first-degree criminal sexual conduct and four counts of second-degree criminal sexual conduct for the sexual abuse of J.L.S. and T.A.S. Under a plea agreement with the state, appellant entered an Alford plea to second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a) (2000), for sexually abusing T.A.S., which was count five of the complaint, and to second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (1994), for sexually abusing J.L.S., which was count six of the complaint. The state dismissed the remaining counts.
The presumptive guidelines sentence for count six was 48 months executed because it was a severity-level-seven offense and appellant had a criminal-history score of zero. See Minn. Sent. Guidelines IV V (1994). The presumptive guidelines sentence for count five was 27 months stayed because it was a severity-level-six offense and, because count five is based on conduct that occurred after the conduct that was the basis for count six, appellant had a criminal-history score of one. See Minn. Sent. Guidelines IV V (1998). At the sentencing hearing, appellant requested that the district court stay the 48-month sentence on count six and, if it declined to do so, asked that the district court execute the 27-month sentence on count five, to be served concurrently with the sentence on count six. The district court denied appellant's request regarding count six, finding that there were no substantial mitigating factors that justified a downward dispositional departure. The district court imposed a 48-month executed sentence for count six and a 27-month sentence, executed at appellant's request, for count five, to be served concurrently. Appellant requests that this court reverse her sentences and remand the matter to the district court for imposition of a 48-month stayed sentence for count six and a 27-month stayed sentence for count five.
DECISION
This court will not reverse a district court's sentencing decision absent a clear abuse of discretion. State v. Oberg, 627 N.W.2d 721, 724 (Minn.App. 2001), review denied (Minn. Aug. 22, 2001).
Appellant argues that the district court abused its discretion by declining to grant a downward dispositional departure from the presumptive guidelines sentence of 48 months executed on count six and by disregarding, without explanation, the following mitigating factors that appellant argues support such a departure: (1) appellant "has been sexually victimized her entire life"; (2) appellant "has been frequently physically and mentally abused"; (3) appellant is no longer permitted to have contact with her minor children; (4) appellant "has struggled with chemical dependency throughout her entire life"; (5) appellant has a history of mental illness and has limited intellectual abilities; and (6) Solmon forced appellant to participate in the sexual abuse of J.L.S. Appellant also argues that she is capable of benefiting from sex-offender therapy and that she has maintained steady employment.
Generally, a district court must impose the presumptive guidelines sentence. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). A district court has the discretion to depart from the presumptive guidelines sentence when "substantial and compelling circumstances are present." State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); accord Minn. Sent. Guidelines II.D. But a district court is not required to depart downwardly merely because mitigating factors are present. Oberg, 627 N.W.2d at 724. As long as the record shows that the district court considered all of the information presented before making its determination, this court will not interfere with the district court's exercise of discretion. State v. Van Ruler, 378 N.W.2d 77, 80-81 (Minn.App. 1985). Only a "rare case" would warrant the reversal of the district court's refusal to depart from the guidelines. Kindem, 313 N.W.2d at 7.
Here, the district court declined to depart from the presumptive guidelines sentence of 48 months executed on count six, stating that it did "not find there [to be] substantial mitigating factors." The record shows that the district court reviewed the pre-sentence investigation report, a psychological evaluation, a victim-impact statement, the certificate of restitution, and the memorandum in support of appellant's petition for a downward dispositional departure, and considered the testimony at the sentencing hearing, including that of J.L.S., before making its sentencing decision. The district court is not required to explain why it elected to impose a presumptive sentence after it has considered the proposed reasons for departure. Van Ruler, 378 N.W.2d at 80. We conclude that the district court did not abuse its discretion in ordering the presumptive guidelines sentence for count six or in executing the sentence for count five, at appellant's request, and that appellant's claimed mitigating factors do not make this the "rare case" that warrants reversal of the district court's refusal to depart from the guidelines.