Ramsey County District Court File Nos. 62-CR-11-6256, 62-CR-11-6495.
Lori Swanson, Attorney General, St. Paul, Minnesota; and John Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St. Paul, Minnesota (for respondent).
David W. Merchant, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant).
Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Larkin, Judge.
Appellant challenges the district court's denial of his request for a downward dispositional sentencing departure for his conviction of aiding and abetting second-degree burglary. We affirm.
In August 2011, appellant Dustin Klein was on probation for criminal damage to property. By separate complaints in August 2011, respondent State of Minnesota charged Klein with aiding and abetting second-degree burglary between April 27, 2011, and May 9, 2011, and aiding and abetting second-degree burglary on May 19, 2011. Klein pleaded guilty to both charges with no sentencing agreement with the state, except that Klein reserved the right to move the district court for a downward dispositional departure. For Klein's conviction of the first burglary, the district court imposed the presumptive guidelines sentence of 28 months' imprisonment stayed. For the second burglary, the sentencing guidelines called for an executed prison sentence, and Klein moved for a downward dispositional sentencing departure.
The district court denied Klein's motion for a downward dispositional sentencing departure for the second burglary and sentenced Klein to a presumptive guidelines sentence of 29 months' imprisonment. At Klein's request, the district court then executed his 28-month stayed sentence for the first burglary, to be served concurrently with his 29-month sentence for the second burglary.
This appeal follows.
The district court must order the presumptive sentence provided by the sentencing guidelines "unless there exist identifiable, substantial, and compelling circumstances" that warrant a departure. Minn. Sent. Guidelines II.D (2010). Appellate courts apply the abuse-of-discretion standard to a sentencing court's decision to deny a motion for a downward dispositional sentencing departure. State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). "Departures from the presumptive sentence are justified only when substantial and compelling circumstances are present in the record." State v. Jackson, 749 N.W.2d 353, 360 (Minn. 2008). Only a rare case warrants reversal of the refusal to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Claiming that he is amenable to probation, Klein argues that the district court abused its discretion by denying his motion for a downward dispositional sentencing departure. He argues that the court erred by not considering the Trog factors when it denied his motion and that if the court had applied the appropriate Trog factors, it would have granted his motion. 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 some of the factors relevant to a determination of whether a defendant is amenable to treatment in a probationary setting. 323 N.W.2d 28, 31 (Minn. 1982). Klein argues that the district court should have considered his cooperation with the court and probation, his admission of guilt, his remorse, and his attitude in court. But the law does not require that the district court discuss all of the Trog factors on the record. State v. Pegel, 795 N.W.2d 251, 254 (Minn.App. 2011). As long as the "record demonstrates that the district court carefully considered circumstances for and against departure and ...