Opinion
No. C1-02-1957.
Filed July 22, 2003.
Appeal from the District Court, Chisago County, File No. K7011343.
Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, and Katherine M. Johnson, Chisago County Attorney, (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, (for appellant)
Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Shaun Kenneth Robinson challenges his conviction and sentence for first-degree criminal sexual conduct, arguing that (1) the district court abused its discretion by imposing the presumptive guidelines sentence, and (2) he is entitled to withdraw his guilty plea because the prosecutor's presentation of victim-impact statements at the sentencing hearing violated a plea-agreement provision that he would remain silent at the hearing. We affirm.
FACTS
Robinson was charged with four counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a), (e)(i), (e)(ii) (2000), for various acts involving his six-year-old stepsister, whose father is married to Robinson's mother. The acts occurred when Robinson's stepsister was visiting the home Robinson shared with his mother and stepfather.
Robinson entered into a plea agreement with the state whereby he pleaded guilty to one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g) (2000), which prohibits an actor from engaging in sexual penetration with another person where "the actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration." In Robinson's case, the presumptive sentence for the offense was 144 months, executed. Minn. Stat. § 609.342, subd. 2(b) (2000). The sentencing court may stay execution of a sentence if it finds the offender has been accepted to a treatment program, is amenable to treatment, and a stay is in the best interest of the complainant or the family unit. Minn. Stat. § 609.342, subd. 3 (2000). Pursuant to the agreement, the state dropped the other charges and the prosecutor agreed "to stand silent" at the sentencing hearing.
The district court ordered a presentence investigation, which recommended imposing the presumptive sentence. The presentence investigation found that (1) as an untreated sex offender, Robinson remained at a risk to reoffend in the community; (2) although Robinson was amenable to treatment, a stay of execution was not in the best interest of his stepsister or the rest of the family unit; and (3) Robinson's family would provide an inadequate support system while Robinson was in outpatient sex offender treatment.
Before sentencing, Robinson submitted a psychosexual evaluation prepared by a doctor who stated Robinson was amenable to outpatient treatment and a sentencing memorandum prepared by a dispositional advisor who recommend the district court stay the sentence because (1) Robinson was not likely to reoffend if given access to available outpatient treatment, to which he was amenable; (2) Robinson had no prior arrest record; and (3) Robinson had the support of family and friends. Robinson also submitted letters from himself and various friends and family members urging the court to stay the sentence.
At the sentencing hearing, members of the victim's family her mother and both grandmothers presented victim-impact statements. The district court imposed the presumptive sentence, stating a stay was not in the best interests of Robinson's victim or the family unit and Robinson had not shown sufficient evidence to justify a downward dispositional departure for any other reason.
DECISION
1. Robinson argues that the district court abused its discretion by refusing to grant his request for a downward dispositional sentencing departure. We disagree.
The decision to depart from sentencing guidelines rests within the district court's discretion, and this court will not reverse absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996); State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (stating that "it would be a rare case which would warrant reversal of the refusal to depart"). "[E]ven if there are grounds that would justify departure," this court generally will not interfere with the district court's decision to impose the presumptive sentence. State v. Abeyta, 336 N.W.2d 264, 265 (Minn. 1983).
Here, the district court might have stayed Robinson's sentence by reliance on either Minn. Stat. § 609.342, subd. 3 (2000), or Minn. Sent. Guidelines II.D. Minn. Stat. § 609.342, subd. 3, permits the district court to stay the sentence for a person convicted under Minn. Stat. § 609.342, subd. 1(g) (2002), if the court finds a stay is in the best interests of the complainant or the family unit and a professional assessment indicates the offender has been accepted to a program and is amenable to treatment. If a district court finds a defendant has met these statutory conditions, it may stay the sentence without considering the criteria provided in Minn. Sent. Guidelines II.D. State v. Hamacher, 511 N.W.2d 458, 461 (Minn.App. 1994)
It is undisputed Robinson was amenable to treatment and had been accepted into a program. But the district court did not abuse its discretion by concluding the best interests of the complainant (Robinson's stepsister) and the family unit would not be served by Robinson's continued presence in the home inhabited by his stepfather and visited regularly by his stepsister. See id. at 461-62 (affirming district court's refusal to stay sentence under Minn. Stat. § 609.342, subd. 3, where stay would put defendant into regular contact with complainant family member).
We also conclude that the district court did not abuse its discretion by denying a stay under the standard mandated by the sentencing guidelines, which provide that for felony sentences, the
judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances. When such circumstances are present, the judge may depart from the presumptive sentence and stay or impose any sentence authorized by law.
Minn. Sent. Guidelines II.D. Even if grounds exist that may justify a dispositional departure, this court generally will not interfere with the imposition of the presumptive sentence. State v. Evanson, 554 N.W.2d 409, 412 (Minn.App. 1996), review denied (Minn. Oct. 29, 1996).
A "defendant's particular amenability to individualized treatment in a probationary setting" is considered a substantial and compelling circumstance. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). In determining an individual's particular suitability to such treatment, the district court may consider the defendant's age, prior record, remorse, cooperation, attitude in court, and the support of friends and family. Id. After both sides presented arguments at the sentencing hearing, the court concluded Robinson had not made a sufficient showing of substantial and compelling circumstances to support a downward dispositional departure under the sentencing guidelines.
Robinson cites State v. Curtiss, 353 N.W.2d 262, 264 (Minn.App. 1984), for the proposition that the district court failed to exercise its discretion by not considering on the record the reasons justifying its refusal to depart from the presumptive sentence. But Curtiss specifically holds "a written explanation is not required when the court considers reasons for departure but elects to impose the presumptive sentence." Id. at 263. The district court did not abuse its discretion by imposing the presumptive sentence.
2. Robinson argues the state breached the provision of the plea agreement requiring it to remain silent during sentencing when it presented the victim's grandmothers and mother at sentencing to read victim-impact statements. Robinson contends he is consequently entitled to withdraw his guilty plea. See State v. Wolske, 280 Minn. 465, 472, 160 N.W.2d 146, 151 (1968) (stating defendant must be allowed to withdraw guilty plea where state has violated term of plea agreement relied upon by defendant).
Robinson concedes the state did not violate the letter of the plea agreement, which provided only that the prosecutor himself would remain silent as to the sentence. It is undisputed the prosecutor made no statement at the sentencing hearing concerning the sentence. Robinson argues instead the state violated the spirit of the agreement by presenting victim-impact statements at sentencing. We disagree.
Robinson did not object to the victim-impact statements at the sentencing hearing or otherwise bring the matter to the district court's attention and has therefore waived the issue on appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But even were we to consider its merits, Robinson's claim fails. First, the victim's right to present an impact statement at sentencing is statutorily authorized. See Minn. Stat. § 611A.038 (a) (2002) (providing "victim has the right to submit an impact statement to the court at the time of sentencing or disposition hearing"). That right is therefore not susceptible to waiver by the prosecutor or related to the state's obligation to remain silent during sentencing pursuant to the plea agreement.
Second, Robinson presents no evidence that he entered into the plea agreement in reliance upon the promise that victim-impact statements would not be presented at the sentencing hearing. See State v. Ferraro, 403 N.W.2d 845, 848 (Minn.App. 1987) (stating withdrawal of guilty is generally authorized where prosecutor violated essential element or inducement in plea agreement).
Finally, Robinson presents no evidence that he was prejudiced by the presentation of the victim-impact statements or that the statements were a dispositive factor in the district court's conclusion. See id. (refusing to grant downward dispositional even after prosecutor violated plea agreement's silence provision at sentencing where defendant presented no compelling reasons to depart).
The district court did not abuse its discretion by concluding appellant failed to present any compelling reason for a downward departure from the presumptive sentence.