State of Minnesota, Respondent, vs. John Thompson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-1298

 

State of Minnesota,

Respondent,

 

vs.

 

John Thompson,

Appellant.

 

Filed June 17, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Clay County District Court

File No. K9001763

 

 

Mike Hatch, Attorney General, 102 Capitol Building, St. Paul, MN 55155; and

 

Lisa N. Borgen, Clay County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56560 (for respondent)

 

Daniel S. Adkins, Richard Sand, Richard Sand & Associates, 168 Nina Street, St. Paul, MN 55102 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge, and Anderson, Judge.

U N P U B L I S H E D  O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant John Thompson challenges the district court's sentencing departures because it did not make findings of substantial and compelling circumstances, but rather adopted the state's proposed departure reasons.  Because the district court properly based its departures on substantial and compelling circumstances, we affirm.

FACTS

            Four times in August 2000, appellant John Thompson had oral sex and sexual intercourse with F.A., a vulnerable adult, at F.A.'s mother's house.  F.A.'s mother and stepfather arranged these sexual encounters, and Thompson paid the mother $20 after each. 

            Thompson pleaded guilty to criminal sexual conduct in the fourth degree under Minn. Stat. § 609.345, subd. 1(d) (2000).  He admitted that he knew, or should have known, that F.A. was "mentally impaired."  In his plea agreement Thompson stipulated and agreed "to a durational and dispositional departure which will result in a commitment to the Commissioner of Corrections for a period of 25 months."  He also agreed to a conditional-release period of five years. 

On May 14, 2001, the district court sentenced Thompson to 25 months in prison.  His presumptive sentence was 21 months.  The district court did not make written or oral findings on the record of substantial and compelling circumstances to support the sentencing departures, but rather requested the state to provide departure reasons.  The state's reasons included the victim's vulnerability and multiple sexual encounters:

[U]nder the sentencing guidelines aggravating factors for this type of offense and to depart, one would be the particular vulnerability of the victim.  Another would be the particular   - - I don't know if cruelty would be the exact word, but the circumstances in which she was taken advantage of.  The fact that the defendant had an agreement with the mother of the victim clearly shows her vulnerability as well as the situation that she was in being taken advantage of.  I believe that as well as multiple times that Mr. Thompson did visit with this particular victim would satisfy the statute in the departure ground.

 

Then while sentencing Thompson, the district court stated:

           

The court notes that this is a dispositional and durational departure from the sentencing guidelines for the reasons set forth by the prosecution here today.

 

            Thompson later challenged the district court's sentencing departures under Minn. R. Crim. P. 27.03, subd. 9, alleging the departure was improper because the court failed to make any written or oral findings to support it.  The court denied Thompson's motion for a reduced sentence and found that the sentencing departures were supported by substantial and compelling circumstances.  Thompson appeals the district court's denial of his motion for a reduced sentence.

D E C I S I O N

            On appeal, we review a district court's departure from sentencing guidelines for abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  The Minnesota Sentencing Guidelines govern those instances when the district court can depart from the presumptive sentence, stating that "[t]he judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstance."  Minn. Sent. Guidelines II.D.  The guidelines also require the district court to articulate the substantial and compelling circumstances in writing.  Id.

Thompson argues that the district court abused its discretion when it did not make any written or oral findings of substantial and compelling circumstances to support its sentencing departures, but instead adopted the state's reasons.  At sentencing, the district court specifically asked the state to provide a basis for the dispositional and durational departures.  The state argued that the departures were supported by the vulnerability of F.A., the circumstances involving Thompson's arrangement with F.A.'s mother, and the multiple times Thompson had sexual encounters with F.A.  The district court then stated:

The court notes that this is a dispositional and durational departure from the sentencing guidelines for the reasons set forth by the prosecution here today.

 

We conclude that the district court adopted the state's proposed bases for the departures and that such adoption satisfies the requirement that the court articulate the substantial and compelling circumstances justifying the departures.  See State v. Bale, 493 N.W.2d 123, 125 (Minn. App. 1992) (stating that the district court does not need to make written findings when it makes oral findings on the record), review denied (Minn. Jan. 28, 1993); cf. State v. Synnes, 454 N.W.2d 646, 647 (Minn. App. 1990) (providing that the district court can adopt the state's reasons justifying departure if the district court states that it is using the state's reasons as a basis for its sentencing departure), review denied (June 26, 1990).

Thompson further predicates his challenge on the assumption that the court failed to find proper reasons for departure and therefore departed solely because of the plea agreement.  He cites in support of this argument State v. Misquadace, 644 N.W.2d 65 (Minn. 2002).  That case held that a sentencing departure cannot be based solely on a plea agreement, but that there must also be substantial and compelling reasons for the departure.  Id. at 72. 

Thompson's reliance on Misquadace is misplaced for three reasons.  First, as we have noted, the court did rely on substantial and compelling circumstances for the departures, the articulation of which the court adopted on the record.  Thus, the court did not depart on the basis of the plea agreement alone.

Second, the supreme court made Misquadace applicable only to cases pending on and arising after May 9, 2002, the date of the opinion.  Id.  The time for Thompson's direct appeal expired before that date and his case was not pending on, nor did it arise after, May 9, 2002; thus, Misquadace does not apply here.

Third, when Thompson entered the plea agreement, the applicable law as stated in Givens appeared to allow a sentencing departure on the basis of a plea agreement alone.  See Givens, 544 N.W.2d at 776-77.  Thus, even if Thompson were correct in his assumption that the court failed to find substantial and compelling circumstances for the departures, he did agree to the departures in his plea agreement, and the controlling law allowed departures on plea agreements.

Finally, Thompson challenges the adequacy of the bases for the departures.  The sentencing guidelines provide a nonexclusive list of aggravating factors that supports upward dispositional and durational departures.  Minn. Sent. Guidelines II.D.2. 

There is sufficient aggravation to support an upward departure if the conduct is "significantly more * * * serious than that typically involved in the commission of the crime in question."  State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984).  The departure reasons offered by the state were the victim's vulnerability, the exploitation by the victim's own mother, and the multiple acts of sexual abuse. 

Thompson argues that the vulnerability of the victim cannot be a basis for departure because it is an element of the crime of which he was convicted.  Criminal sexual conduct in the fourth degree under Minn. Stat. § 609.345, subd. 1(d) (2000), requires that the defendant knows or has reason to know that the "complainant is mentally impaired."  Thompson is correct that the court cannot rely on an element of the offense as a reason for departure.  State v. Yanez, 469 N.W.2d 452, 457 (Minn. App. 1991), review denied (Minn. June 19, 1991).  But the vulnerability of the victim was not the sole reason for the departures.  The victim was not only vulnerable, but also was exploited by her mother who directed her to engage in multiple sexual acts for the mother's pecuniary gain in the mother's home.  A parent's home, which should be a safe haven for vulnerable offspring, was transformed into a situs of criminal conduct.  And a mother, upon whom vulnerable offspring should be able to rely for reasonable protection, instead permitted, and actively promoted, the exploitative criminal conduct for the mother's own financial gain.  These circumstances make Thompson's crime atypical, aggravate it, and provide an adequate basis for upward departures.

Affirmed.