State v. Pegel

795 N.W.2d 251, 2011 Minn. App. LEXIS 20, 2011 WL 781078
CourtCourt of Appeals of Minnesota
DecidedMarch 8, 2011
DocketNo. A10-583
StatusPublished
Cited by77 cases

This text of 795 N.W.2d 251 (State v. Pegel) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pegel, 795 N.W.2d 251, 2011 Minn. App. LEXIS 20, 2011 WL 781078 (Mich. Ct. App. 2011).

Opinion

OPINION

PETERSON, Judge.

In this appeal from a 144-month presumptive sentence for first-degree criminal sexual conduct, appellant argues that the district court abused its discretion when it denied his motion for a dispositional departure without making a ruling on the record addressing all of the Trog factors. We affirm.

FACTS

Appellant Jasper Allen Pegel was charged by complaint with four counts of first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subd. 1(g) (2008) (sexual penetration with another when actor has significant relationship to complainant and complainant was under 16 years of age at time of penetration); and one count of first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subd. l(h)(ii) (2008) (sexual penetration with another who was under 16 years of age at time of penetration by actor who has significant relationship to complainant and complainant suffered personal injury). The complaint alleged that appellant sexually abused his 14-year-old niece on multiple occasions between January 2008 and May 2009 and that he had her perform oral sex on him approximately 15 to 20 times. According to the complaint, appellant acknowledged that he had his niece perform oral sex on him four times and “admitted that he began touching his niece during January 2008. He explained that initially it was on top of her clothing and that he thought it occurred about 5 or 6 times.” The complaint also alleged that appellant digitally penetrated the victim’s vagina and tried to have sexual intercourse with her, but appellant claimed that he did not recall either of these incidents.

Appellant pleaded guilty to one count of first-degree criminal sexual conduct for sexually abusing the victim in exchange for the state’s dismissal of the other charges. The district court accepted appellant’s guilty plea and ordered a presentence investigation (PSI) and sentencing worksheet and a sex-offender assessment.

Appellant filed a motion and supporting documents requesting a downward disposi-tional departure. At the sentencing hearing, the district court learned that these [253]*253documents had not been placed in the case file. Consequently, the court continued the sentencing to allow full consideration of these materials.

At the continued sentencing hearing, the district court noted that it had carefully considered and reviewed all of the information submitted by the Department of Corrections, along with the attachments, and all of the information submitted by appellant’s attorney. After hearing testimony from the corrections agent who prepared the PSI report and arguments from counsel, the district court denied appellant’s motion for a downward dispositional departure and sentenced appellant to the presumptive sentence, an executed 144-month prison term. This appeal followed.

ISSUE

Did the district court abuse its discretion by denying appellant’s motion for a downward dispositional departure without addressing all of the Trog factors on the record?

ANALYSIS

The district court must order the presumptive sentence provided in the sentencing guidelines unless “substantial and compelling circumstances” warrant a departure. State v. Cameron, 370 N.W.2d 486, 487 (Minn.App.1985), review denied (Minn. Aug. 29, 1985); see also Minn. Sent. Guidelines II.D (2008) (stating that court has discretion to depart from presumptive sentence only when “substantial and compelling circumstances” are present). Whether to depart from the sentencing guidelines rests within the district court’s discretion, and the district court will not be reversed absent an abuse of that discretion. State v. Spain, 590 N.W.2d 85, 88 (Minn.1999). Only in a rare case will a reviewing court reverse the imposition of a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981)

In State v. Trog, the supreme court stated that “the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family” are all factors that are relevant to a determination whether a dispositional departure is justified. 323 N.W.2d 28, 31 (Minn.1982). Appellant argues that because the issue of a disposi-tional departure was before the district court, the district court should have considered all relevant departure factors, and because the district court denied the request for a departure without addressing all of the Trog factors, the “district court abused its discretion by failing to properly exercise its discretion.”

Appellant’s argument blurs the distinction between a district court’s failure to exercise its discretion to depart from a presumptive sentence and a district court’s abuse of its discretion when determining whether to depart from a presumptive sentence. “If the district court has discretion to depart from a presumptive sentence, it must exercise that discretion by deliberately considering circumstances for and against departure.” State v. Mendoza, 638 N.W.2d 480, 483 (Minn.App.2002), review denied (Minn. Apr. 16, 2002); see also State v. Curtiss, 353 N.W.2d 262, 264 (Minn.App.1984) (noting that record suggested factors for departure that should be deliberately considered). When the record demonstrates that an exercise of discretion has not occurred, the case must be remanded for a hearing on sentencing and for consideration of the departure issue. Curtiss, 353 N.W.2d at 264. But the mere fact that a mitigating factor is present in a particular case does “not obligate the court to place defendant on probation or impose a shorter term than [254]*254the presumptive term.” State v. Wall, 343 N.W.2d 22, 25 (Minn.1984).

Appellant accurately asserts that the district court did not discuss all of the Trog factors before it imposed the presumptive sentence. But there is no requirement that the district court must do so. See State v. Van Ruler, 378 N.W.2d 77, 80 (Minn.App.1985) (stating that if district court “considers reasons for departure but elects to impose the presumptive sentence,” an explanation for denying departure is not required). Also, the record demonstrates that the district court deliberately considered circumstances for and against departure and exercised its discretion.

Before imposing sentence, the district court stated:

In considering sentencing in this matter, again, I have reviewed the information submitted by the Department of Corrections along with the attachments. I’ve considered the information submitted by the public defender’s office. I’ve carefully considered all of that information. In this particular case, [appellant], I have the — the discretion to impose a sentence under the guidelines of 173 months. I also, if I find that there are mitigating factors, could stay execution of that sentence and place you on probation supervision.

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Cite This Page — Counsel Stack

Bluebook (online)
795 N.W.2d 251, 2011 Minn. App. LEXIS 20, 2011 WL 781078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pegel-minnctapp-2011.