State v. Staten

390 N.W.2d 914, 1986 Minn. App. LEXIS 4598

• Court: Court of Appeals of Minnesota
• Decided: August 5, 1986
• Docket: CX-86-486
• Status: Published

Opinions

OPINION

NIERENGARTEN, Judge.

This is an appeal by the State from a sentence imposed on respondent Randolph Staten. The trial court departed downward durationally from a one year and one day presumptive sentence and imposed 90 days. Finding no substantial and compelling circumstances to justify the departure, we reverse and remand for resentencing.

FACTS

From June to August 1985 Staten wrote 76 checks on a closed account in the Minneapolis area, totaling over $8,000. Staten pleaded guilty to an amended charge of theft over $250. The presumptive sentence, based on a severity II offense and a criminal history of 0 was a stayed sentence of 12 months and one day.

At sentencing the trial court departed downward durationally by sentencing Staten to 90 days in the Hennepin County Workhouse, staying execution of sentence. Staten was placed on probation for one year and was ordered to continue chemical dependency treatment and to refrain from using any controlled substance.

The State appealed the sentence, challenging the downward, durational departure.

ISSUE

Does the record establish mitigating factors constituting “substantial and compelling circumstances” to justify the trial court’s downward, durational departure?

ANALYSIS

The issue is whether there were mitigating circumstances present which constituted substantial and compelling circumstances justifying the departure. State v. Cizl, 304 N.W.2d 632, 634 (Minn.1981); Minnesota Sentencing Guidelines II.D.

Just as an upward durational departure is justified if the defendant’s conduct is significantly more serious than that typically associated with the commission of the offense, a downward, durational departure is justified if the defendant’s conduct is significantly less serious than that typically involved in the commission of the offense.

State v. Mattson, 376 N.W.2d 413, 415 (Minn.1985). See generally State v. Nelson, 329 N.W.2d 827 (Minn.1983) (reversing downward, durational departure because of absence of mitigating factors).

To be a basis for a downward departure a factor must tend to excuse or mitigate the offender’s culpability for the offense. See State v. Wall, 343 N.W.2d 22, 25 (Minn.1984); State v. Esparza, 367 N.W.2d 619, 621 (Minn.Ct.App.1985). The following factors were cited by the trial court at sentencing and in its departure report.

1. Extensive Publicity. The trial court concluded that Staten, a member of the Minnesota House of Representatives, has suffered because this case was well publicized in the news media. This is an employment factor (occupation or impact of sentence on profession or occupation), that should not be used as a reason for departure. Sentencing under the guidelines is to be neutral with respect to race, gender, employment, social or economic status. Minnesota Sentencing Guidelines I and II.D.l.

The dissent suggests defendant has suffered extensive publicity, implying that fact should act as a mitigating agent in sentencing. Judge Frankel in United States v. Bergman, 416 F.Supp. 496, 502-03 (S.D.N.Y.1976) answered that argument as follows:

“Defendant’s second point about his public humiliation is the frequently heard contention that he should not be incarcerated because he ‘has been punished enough.’ The thought is not without some initial appeal. If punishment were wholly or mainly retributive, it might be a weighty factor. In the end, however, it must be a matter of little or no force. Defendant’s notoriety should not in the last analysis serve to lighten, any more than it may be permitted to aggravate, his sentence.”

2. Confinement. The trial court devoted a considerable amount of time, in sentencing, on the philosophy of confinement and concluded that confinement was not necessary as a means of punishment in this case. However, since the presumptive sentence was not imprisonment, discussion of confinement was irrelevant to a dura-tional departure.

3. Restitution. The trial court referred to matters which “do not appear of record”. One was Staten’s allegedly making full restitution prior to the date set for sentencing. Making a finding in support of departure without adequate record foundation is itself rather perilous. Even if such relaxed conduct were permissible, restitution is not a mitigating factor either identifiable in the guidelines or recognized by case law.

4. Prior Check-Writing Incidents. Again, admittedly without record foundation, the court’s finding that Staten had previously written bad checks under similar circumstances which had been covered by his wife is not a factor identifiable either in the guidelines or recognized by case law. It certainly is not a substantial ground tending to excuse or mitigate Staten’s culpability. Minnesota Sentencing Guideline II.D.2.a.(4).

5. Likelihood of Completing Probation. The trial court was aware that if Staten were given a stay of imposition and successfully completed probation, under Minn.Stat. § 609.13, subd. 1 (1984) the conviction, although a felony, would be deemed a misdemeanor. The trial court believed the offense would eventually be reduced to a misdemeanor and thus felt it more desirable to immediately treat Staten’s offense as a misdemeanor.

In State v. Cizl, 304 N.W.2d 632 (Minn.1981) the supreme court reversed the trial court’s downward departure in imposing a gross misdemeanor sentence, rather than the presumptive felony sentence of one year and one day. Chief Justice Sheran, recognizing the attempt by the trial court to reach a result it desired by short-cutting the sentencing guidelines, discussed the identical factor relied on by this trial court as follows:

Finally, the trial court’s belief that it was not in the public interest or in defendant’s interest that defendant have a felony record was merely a restatement of the result which the trial court desired.

The purpose of the trial judge’s departure, which was to avoid burdening the defendant with a felony criminal record, could be substantially accomplished by staying the imposition of sentence. * *

Id. at 634.

We conclude that the record does not establish substantial and compelling circumstances to justify the downward, dura-tional departure.

DECISION

The record does not demonstrate mitigating factors which constitute substantial and compelling circumstances to justify a downward, durational departure in this case. We vacate the sentence imposed and remand the case to the district court for resentencing.

Reversed and remanded for resentenc-ing.