Opinion
No. C5-00-760.
Filed August 29, 2000.
Appeal from the District Court, Carlton County, File No. K2981503.
Marvin Ketola, Carlton County Attorney, Dennis Genereau, Jr. Assistant County Attorney, and Mike Hatch, Attorney General, (for respondent)
Rochelle R. Winn, Assistant State Public Defender, (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant alleges that the evidence was insufficient as a matter of law to support his sentence as a patterned sex offender. We affirm.
DECISION
Richard Johnson pleaded guilty to two separate offenses of criminal sexual conduct in the third degree, in violation of Minn. Stat. § 609.344, subds. 1(b), 1(g)(iii) (1998). Before sentencing, the state moved to have Johnson sentenced as a patterned sex offender pursuant to Minn. Stat. § 609.108 (1998). The court granted the motion. The district court calculated Johnson's criminal history score at six (6) points. Based on this score, the district court determined Johnson's presumptive term of imprisonment to be 108 months for violation of Minn. Stat. § 609.344, subd. 1(g)(iii).
Johnson disputes his criminal history calculation in a footnote. The court correctly included a juvenile point in computing the criminal history score because Johnson's juvenile offenses were committed after he was 14 and after 1995. Minn. Sent. Guidelines II.B.4. The district court did not err in calculating the presumptive sentence.
Johnson argues the district court's determination that he is a patterned sex offender is not based on a professional assessment, as required by the statute. The patterned sex offender statute requires, among other things, that the court find that the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment. Minn. Stat. § 609.108, subd. 1(3); State v. Stirens, 506 N.W.2d 302, 305 n. 6 (Minn. 1993). In reaching this determination, "a court must also rely on an assessment by an examiner experienced in evaluating sex offenders concluding that the offender is a patterned sex offender." Stirens, 506 N.W.2d at 305 n. 6; see State v. Christie, 506 N.W.2d 293, 298 (Minn. 1993) (noting "offender's need for long-term treatment or supervision must be based upon a professional evaluation, the details of which are delineated thoroughly in the statute.").
Sentencing Johnson under the patterned sex offender statute constitutes a departure from the sentencing guidelines. Minn. Stat. § 609.108, subd. 5. A departure from the sentencing guidelines rests within the district court's discretion, and this court will not reverse the district court's departure, absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
The statute defines a "patterned sex offender" as "one whose criminal sexual behavior is so engrained that the risk of reoffending is great without intensive psychotherapeutic intervention or other long-term controls." Minn. Stat. § 609.108, subd. 1(3).
Johnson argues that the psychologist who performed the assessment under Minn. Stat. § 609.108, subd. 1(3), did not conclude that Johnson was a patterned sex offender. The record, however, is replete with evidence supporting the district court's determination. On November 30, 1999, psychologist Christos Petsoulis evaluated Johnson pursuant to subdivision 1(3) of the patterned sex offender statute. In his report, Petsoulis noted that Johnson engaged in "minimizations" of the sexual contact he had with his half-sisters, and that Johnson "was adamant that he is not willing to do inpatient treatment in Minnesota," and that
[t]his is another example of Mr. Johnson's difficulty in conforming and inability to accept consequences and responsibility as it is very much needed to progress in the reduction of risk factors for reoffending.
Petsoulis testified:
I see [Johnson] as someone that has little regard for another human being, and if he's horny, he is going to get what he needs, vis-a-vis sex, whether that would be forced or not. And that makes him dangerous. Now, but, however, he's not a pattern sex offender in my opinion, but, then again, I may have a different definition. (emphasis added).
When asked to distinguish between his definition of a patterned sex offender and that of the statute's, Petsoulis responded:
[M]aybe I should say this: I don't know enough about him whether he's a pattern or not because of his unreliability of his — the unreliability of his reports to me about his sexual interactions.
Petsoulis further stated:
Petsoulis: I don't see [Johnson] as a pattern sex offender in the sense that he will hide behind the bushes and go attack somebody. However, I see Mr. Johnson as very dangerous with regards to his sexual acting behavior.
State: Do you feel that he is at risk for reoffending — —
Petsoulis: Very much so.
State: — without some intensive type of intervention or long-term role?
Petsoulis: Very much so. I'm very clear about that.
* * *
Petsoulis: [Johnson's] sexual behavior, is really impulsive in my opinion, and that makes him dangerous; that whether you want to classify it as pattern or not, I don't know. But I do know that it is dangerous.
Petsoulis stated that "the longer [Johnson]'s in there, the more chances he has of turning it around." Petsoulis also warned that "[Johnson's] denial is so big, his resistance is so big, that with his history [it] makes him a very high risk [of reoffending]." Petsoulis testified that he felt Johnson would not be responsive to treatment in prison during the presumptive 108-month sentence and that Johnson was "most likely going to refuse treatment because he's so greatly invested in not being called the baby raper * * * ." Petsoulis opined that Johnson would not be amenable to treatment based on Johnson's attitude and the information Petsoulis had been given.
The district court found that the "conclusion and opinion by Mr. Petsoulis fits the definition of a pattern sex offender within the statute." We agree. Petsoulis's testimony, based upon his examination of Johnson, the facts of the crimes committed and what Johnson had shared of his history, supports the district court's conclusion that Johnson is one whose criminal sexual behavior is so engrained that the risk of reoffending is great without intensive psycholtherapeutic intervention or other long-term controls. Petsoulis's testimony also supports the district court's finding that Johnson needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised released.
The district court did not err in concluding that Johnson is a patterned sex offender or in sentencing him to 216 months — twice Johnson's presumptive sentence, as mandated by Minn. Stat. § 609.108, subd. 1. See State v. Lonergan, 505 N.W.2d 349, 357 (Minn.App. 1993) (recognizing patterned sex offender statute mandates minimum double presumptive sentence, and it is not abuse of discretion to impose such sentence if evidence supports application of the statute), review denied (Minn. Oct. 19, 1993).
The district court later reduced Johnson's sentence to 180 months, the statutory maximum sentence under Minn. Stat. § 609.344, subd. 2. Subdivision 1 of the patterned sex offender statute directs the district court to sentence a patterned sex offender to
not less than double the presumptive sentence * * * and not more than the statutory maximum, or if the statutory maximum is less than double the presumptive sentence, for a period of time that is equal to the statutory maximum * * *.
Minn. Stat. § 609.108, subd. 1. Subdivision 2 of the statute directs that if the court is "imposing a sentence under subdivision 1, the statutory maximum imprisonment penalty * * * is 40 years, notwithstanding the statutory maximum imprisonment penalty otherwise provided for the offense." Minn.Stat. § 609.108, subd. 2 (emphasis added). The appropriateness of the reduction to 180 months is not challenged on appeal.