Opinion
No. C4-00-1429
Filed January 16, 2001
Appeal from the District Court, Dakota County, File No. K900155.
Mike Hatch, Attorney General, and James C. Backstrom, Dakota County Attorney, Shirley A. Leko, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, (for appellant)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant argues that the district court abused its discretion by imposing the presumptive mandatory sentence for second-degree aggravated robbery because appellant had no prior record, his gun was unloaded, and his accomplice received a stayed sentence. Because nothing in the record persuades us that the district court abused its discretion, we affirm.
DECISION
On January 14, 2000, appellant John Richard Wright attended a gathering at a friend's house in Rosemount. M.G.M., a juvenile male, also attended the gathering. Sometime around 12:30 a.m., M.G.M. left the residence. Wright and an accomplice were waiting for him outside. The two surprised M.G.M. and told him to "freeze." Wright held a gun on M.G.M. and told him not to move. Both Wright and his accomplice punched and kicked M.G.M. repeatedly and ripped M.G.M.'s wallet from his back pocket. After taking M.G.M.'s wallet, Wright's accomplice fled to a nearby vehicle while Wright held M.G.M. down and pointed the gun at his head.
Wright pleaded guilty to Second Degree Aggravated Robbery (Aiding and Abetting), in violation of Minn. Stat. § 609.245, subd. 2 (1998). The district court sentenced Wright to the presumptive minimum term of 36 months under Minn. Stat. § 609.11, subd. 5(a) (1998). Wright appeals, claiming that the district court abused its discretion by denying his request for a downward departure to probation.
Absent a clear abuse of discretion, we will not disturb the district court's sentence. State v. Lundberg, 575 N.W.2d 589, 591 (Minn.App. 1998), review denied (Minn. May 20, 1998). Generally, the district court must order the presumptive sentence provided in the sentencing guidelines unless "substantial and compelling circumstances" warrant a departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); see State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (noting district courts have "no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present"); see also State v. Morris, 609 N.W.2d 242, 245 (Minn.App. 2000) (indicating substantial and compelling circumstances are "those that make the facts of a particular case significantly more or less serious than a typical case involving the same crime") (citation omitted)), review denied (Minn. May 23, 2000). The district court's decision to impose the presumptive sentence will be reversed only in a rare case. State v. Hopkins, 486 N.W.2d 809, 812 (Minn.App. 1992) (citing Kindem, 313 N.W.2d at 7); see, e.g., State v. Abeyta, 336 N.W.2d 264, 265 (Minn. 1983) (refraining from disturbing sentences within presumptive range, even if there are grounds justifying departure); State v. Lonergan, 381 N.W.2d 51, 52 (Minn.App. 1986) (stating this court generally will not mandate departure).
After Wright pleaded guilty, the district court sentenced him to the presumptive mandatory minimum term of 36 months imprisonment under Minnesota Sentencing Guidelines II.E. See Minn. Stat. § 609.11, subd. 5(a) (establishing mandatory minimum sentence for firearm-related offenses). Before sentencing Wright, the district court ordered that a Pre-Sentence Investigation (PSI) be completed. The PSI recommended that Wright serve the presumptive 36-month term. The PSI indicated there were no compelling reasons to support a downward departure.
Wright argues that the district court should have granted a dispositional departure because he is particularly amenable to probation. Wright cites State v. Trog, 323 N.W.2d 28 (Minn. 1982), in support of his argument. In Trog, the supreme court articulated a non-exclusive list of factors to consider whether a defendant is amenable to probation. Id. at 31. These factors include "the defendant's age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family * * * ." Id. (emphasis added). Here, Wright's PSI indicated that he had "very little empathy" for M.G.M. and that he showed little remorse for his crime because Wright stated that M.G.M. had "something coming to him." See, e.g., State v. Champion, 413 N.W.2d 161, 164 (Minn.App. 1987) (upholding district court's denial of dispositional departure where, among other things, defendant showed no remorse). In addition, Wright's attitude in court was less than exemplary: After the district court sentenced Wright to prison, Wright responded by telling the judge "Thanks a lot you f---ing asshole." Wright's lack of empathy and poor attitude in court weigh against his amenability to probation. The district court did not abuse its discretion in imposing the presumptive sentence.
Wright argues that the disparity in sentencing between himself and his accomplice constitutes an abuse of discretion. Wright's assertion is unpersuasive. First, a different judge sentenced Wright's accomplice and the state argued against probation for his accomplice instead of a prison term. Second, we are aware of no controlling case law that entitles Wright to the identical sentence received by his accomplice. Cf. State v. Vazquez, 330 N.W.2d 110, 112-13 (Minn. 1983) (refusing to reduce appellant's sentence to that received by his accomplice); Lonergan, 381 N.W.2d at 53 (concluding that probationary "sentence chosen for a co-defendant does not mandate a more lenient sentence for appellant") (citing Vazquez, 330 N.W.2d at 112-13)). In addition, Wright's sentence is consistent with the recommendation of imprisonment made in his PSI, whereas the PSI for Wright's accomplice recommended probation. Those recommendations reflect the fact that only Wright displayed the firearm during the robbery.
Wright fails to demonstrate any compelling circumstances that mandate a downward departure. The district court acted within its discretion in refusing to depart.