Dakota County District Court File No. K202714
Considered and decided by Schumacher , Presiding Judge, Randall , Judge,
and Kalitowski , Judge.
A sentencing court may grant a dispositional departure based on a finding of particular amenability to probation despite the defendant's failure to take full responsibility for the offense.
The opinion of the court was delivered by: Robert H. Schumacher, Judge
This appeal is from a sentence imposed for five counts of tax evasion under Minn. Stat. § 289.63, subd. 1(a) (1998). The state argues that the district court abused its discretion in granting respondent Geoffrey Hickman a downward dispositional departure. We affirm.
Hickman was charged in March 2002 with five counts of felony tax evasion for failing to file Minnesota state tax returns for the 1996, 1997, 1998, 1999, and 2000 tax years. The complaint alleged that Hickman was a Northwest Airlines pilot, had flown out of the Minneapolis-St. Paul International Airport since 1989, had built a home in Mendota Heights on which he claimed a homestead exemption, and had claimed a Florida residence during those tax years. The complaint alleged that Hickman listed Florida as his residence on his payroll withholding forms at Northwest, although there was no evidence that he lived in Florida or maintained more than minimal contacts with that state. His ex-wife and children lived in Florida.
On November 13, 2001, investigators for the Minnesota Department of Revenue obtained and executed a search warrant at Hickman's Mendota Heights residence. The officers, with Hickman's cooperation, seized a number of records regarding his residency status and his personal income for the relevant tax years. Hickman's W-2 forms disclosed that he earned $78,681 in 1996, $110,962 in 1997, $173,699 in 1998, $203,394 in 1999, and $185,578 in 2000. Hickman did not file a Minnesota tax return for any of those years. His total state tax liability was about $49,000.
The complaint alleged that although Hickman maintained a post office box in Carabelle, Florida, that box bore no relationship to any real property, and police in that small community knew nothing of Hickman. Hickman had applied for, and received, a Florida driver's license, and had registered to vote in Florida but had been removed from Florida voting rolls after never having voted there. The complaint alleged that Hickman's Mendota Heights home was well furnished and contained a plethora of personal records, personal property, and personal mail addressed to that residence. The complaint alleged that Hickman admitted to investigators that he resided there since 1995 and that he had not filed a Minnesota tax return since 1994, when he won $100,000 in the state lottery.
Hickman waived his right to a trial by jury, and the case was tried to the court. The district court issued an order finding that Hickman"knew of his obligation to file Minnesota individual income tax returns for all relevant years and willfully failed to file the required returns." The court found Hickman guilty and ordered a presentence investigation.
The presentence investigation detailed Hickman's explanation for his conduct, including Hickman's statement that he had claimed Florida as his state of residence since the 1960's when he was in the Air Force. Hickman also claimed that he did not read the homestead exemption application form and that he believed he could validly claim Florida residency because he owned a home there, his children were in school there, and he planned eventually to live there. The presentence investigation noted that Hickman also stated that he tried to change his residency status in Northwest's payroll computer system in October 2001, the month before the search warrant was executed, but was unable to correct it until December. The presentence investigation noted that Hickman had paid the taxes due for 1996-2000, plus penalties and interest, and that Hickman was a low risk to reoffend. Noting there were both aggravating and mitigating factors, the presentence investigation stated that"incarceration is appropriate for such offense behavior."
The district court, stating it was departing from the guidelines, stayed imposition on all five counts. The court imposed two-year probationary periods on each count, with two being consecutive to the first probationary period, making a total of six years of probation. In support of its dispositional departure, the court cited Hickman's amenability to probation, his acceptance of responsibility for his acts, his"lifetime pattern of law-abiding behavior," and the fact that he had accrued all his criminal history points at one sentencing. The court then justified the consecutive service of ...