State of Minnesota, Appellant, vs. Jason Leonard Molacek, Respondent.

State of Minnesota, Appellant, vs. Jason Leonard Molacek, Respondent. A05-499, Court of Appeals Unpublished, October 4, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-499

 

 

State of Minnesota,

Appellant,

 

vs.

 

Jason Leonard Molacek,

Respondent.

 

 

Filed October 4, 2005

Affirmed

Lansing, Judge

Dissenting, Dietzen, Judge

 

Hennepin County District Court

File No. 03040197

 

 

Mike Hatch, Attorney General, Suite 1800, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for appellant)

 

Leonardo Castro, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The state appeals the district court's sentence for Jason Molacek's conviction of second-degree murder.  Between the first and second sentencing hearing, the Hennepin County District Court, Mental Health Division, committed Molacek to the Minnesota security hospital at St. Peter, indefinitely, as mentally ill and dangerous.  At the second sentencing hearing, the district court imposed the presumptive sentence of 306 months and stayed execution for 30 years on specific probationary conditions.  The state contends that the dispositional departure does not adequately address public protection or punishment for the offense.  We conclude that the district court did not abuse its discretion, and we affirm.

F A C T S

On stipulated facts, the district court found Jason Molacek guilty of second-degree murder for the shooting death of his mother in June 2003.  Molacek has a lengthy history of severe and persistent mental illness.   He first experienced mental-health problems at the age of six and began mental-health treatment when he was seven.  He was nineteen when he broke into his father's gun cabinet, removed a hunting rifle, and shot his mother.  Responding to his mother's pleas for help, Molacek called 911 and, when the police arrived, he was outside the residence with the gun pointed at his head.  About ten weeks later, Molacek's mother died.

Molacek willingly participated in the police investigation of the shooting.  He complied with police direction to put down the gun, and he submitted to custody without incident.  In his interview following arrest, he told police that he had planned the shooting throughout the day and had packed his bags to leave home.  But he also said that he did not know how it happened, he did not really want to do it, and he did not know why he did it.  During a subsequent psychiatric evaluation, Molacek reported that all he could remember about the day was "hearing screaming voices" repetitively saying "do it." 

The state initially charged Molacek with one count of first-degree murder but  amended the charge to second-degree murder in violation of Minn. Stat. § 609.19, subd. 1 (2002).  In October 2003 Molacek waived his right to a jury trial and submitted the case to the court on stipulated facts.  The district court found Molacek guilty of second-degree murder.

Under the Minnesota Sentencing Guidelines, second-degree murder is a severity level XI offense.  Minn. Sent. Guidelines IV.  Because Molacek had a criminal-history score of zero, the presumptive sentence was 306 months in prison.  Id.  Defense counsel moved for a downward dispositional departure and, alternatively, for a downward durational departure.  The state opposed the departure requests. 

In December 2003, at the first of two sentencing hearings, defense counsel presented testimony from a psychiatrist who reviewed Molacek's medical records and twice met personally with Molacek.  The psychiatrist's testimony and written report provided a detailed account of Molacek's long history of mental illness.

Molacek first experienced auditory hallucinations at age thirteen.  In April 1999, at age fifteen, he was admitted to St. Joseph's Hospital because he had threatened to kill himself and shoot two teachers, and he had also made statements that he was going to break into his father's gun cabinet and shoot his parents.  During the spring of 2000, Molacek was hospitalized twice due to psychosis with command hallucinations to kill his parents.  Before the hospitalization, he told a healthcare provider that he had visions of killing his parents with a machete and that voices told him to do this.  In a separate incident that also preceded hospitalization, Molacek's mother found him on the kitchen floor, crying and holding two knives because voices told him to kill his parents while they were sleeping.  At a later time, when he experienced visions of killing his parents, he informed his father and also called 911 to report it to police.

Molacek reported to mental-health evaluators that he regularly used marijuana starting in approximately 1999 and that he had also experimented with other drugs.  He said that when he used marijuana "the voices would go away but the whispers would increase."  He also experienced impulses to "draw blood" and would cut himself with knives to relieve his symptoms.

In April 2001 Molacek was again hospitalized after having suicidal and homicidal thoughts and taking his parents' cars without permission. Upon release, Molacek attempted unsuccessfully to live in a group home and then at various shelters.  In January 2002 he was admitted to Bar None, a residential treatment program. 

While at Bar None, Molacek received continuous treatment and medication and completed his high school degree.  He indicated that, although he had occasional episodes at Bar None, he had settled down while living there and liked the structure and definiteness of the program's policies.  When Molacek turned nineteen, county funds were no longer available to pay for his residential treatment.  He was discharged and returned to his parents' residence in March 2003.  At the time of his discharge, reports from treating physicians at Bar None stated that Molacek was "in no condition to be discharged from a structured setting" and was "clearly quite a disturbed boy, both from the standpoint of his emerging character disorder and obvious mood disorder." 

Molacek's behavior began to deteriorate almost immediately upon return to his parents' residence:  about $140 in cash disappeared from the house, Molacek did not honor his 9:00 p.m. curfew, and he began using marijuana daily.  The family sought the help of a counselor who recommended stress reduction techniques and another physician who referred Molacek to chemical-dependency group treatment.  Approximately four months after leaving Bar None, Molacek shot his mother.

The defense psychiatrist testified that Molacek has bipolar disorder, manifesting in mood swings, mood disturbance, impulse control problems, auditory hallucinations, and delusional thinking.  He further testified that Molacek, at the time of shooting his mother, suffered from a simultaneous cannabis or marijuana problem.  He referred to this as a "dual diagnosis" where each condition is "feeding on [the] other, so to speak.  The mental condition keeps reoccurring and the marijuana use comes in and aids and abets the other condition."  In his evaluation of Molacek, the psychiatrist concluded that Molacek "depersonalize[ed]" his psychotic episodes, and "could never understand what [they were] all about or why they had to occur, but rather experienced matters as though [he was] some type of robotized agen[t] . . . or [was] observing himself doing these acts." 

The defense psychiatrist testified that Molacek's mental illness was in remission while he remained on medication during his presentence incarceration but that he needed further intensive treatment.  He testified that Molacek would be better treated in the mental-health system than in the corrections system, and that Molacek would be vulnerable to physical abuse if imprisoned. 

The court also received a report from a state psychologist who reviewed Molacek's medical records and met with Molacek.  The state psychologist similarly concluded that Molacek has a bipolar disorder that manifests in psychotic symptoms.  He concluded that Molacek's action of shooting his mother "could only be motivated by a need to respond to an immediate emotional crisis" and that Molacek was prematurely discharged from Bar None.

Between the first and second hearings, Hennepin County District Court Mental Health Division committed Molacek to the Minnesota security hospital at St. Peter for an indefinite period, as mentally ill and dangerous to the public.  Treatment reports from this commitment were submitted to the sentencing court.  In part, the reports showed that Molacek was voluntarily taking mood stabilizing, antidepressant, and antipsychotic medications.  The reports also stated that Molacek "appears to be stable and is not evidencing pronounced mood swings or behavioral manifestations or disturbances" and that he had been regularly attending and participating in meetings with his primary nurse, mental-health groups, and chemical-dependency groups. 

At the second sentencing hearing, in December 2004, the Director of Behavioral Health of the Minnesota Department of Corrections provided detailed testimony on the mental-health services available to Minnesota inmates.  She testified that inmates with mental illness are treated in a mental-health unit at the Oak Park Heights prison.  In the mental-health unit, inmates are assessed, receive medication, attend group- and individual-therapy sessions, and receive life-skills training prior to being returned to the general population of inmates.  The average length of stay is "two to three months."  In a small number of cases, inmates are transferred, on a temporary basis, to a state hospital for specialized treatment or stay in the mental-health unit for more than three months when the mental-health-care needs are severe.  If an inmate is acutely mentally ill and the mental-health unit is full, an inmate who is considered able to manage in the general population is moved out of the mental-health unit. 

The probation officer who prepared the presentence-investigation report testified at the second sentencing hearing.  He acknowledged that his report had been prepared a year earlier, before Molacek's commitment, and that he had not reviewed any current reports on Molacek's condition.  But relying primarily on "the offense behavior and those circumstances surrounding [it]," he recommended that Molacek should not receive a downward sentencing departure. 

Molacek's father and his deceased mother's sister testified at both sentencing hearings.  Each strongly supported retaining Molacek in a security hospital instead of prison, stating that they believed Molacek would be vulnerable in prison and needed to be treated in a place where he could not hurt himself or others.  Molacek wrote a letter to the court stating that he wanted to be put in a place where trained professionals could look after him and monitor his medications, that he was "very sorry," and that he had "done the worst possible thing to a loved one" and had to "face the consequ[en]ces of something [he could] bar[e]ly remember."

At the close of the December 2004 hearing, the district court imposed the presumptive sentence of 306 months with a credit of 559 days of jail time.  The court then stayed execution of the sentence and placed Molacek on probation for 30 years subject to a number of conditions.  Specifically, the district court required Molacek to comply with all treatment conditions, doctors' orders, and medication prescriptions.  He must also remain law abiding, abstain from the use of drugs and alcohol, and may not possess firearms, knives, or any other weapon.  Additionally, the court mandated that the probation officer submit progress reports to the court every six months and inform the court and the county attorney of any potential for discharge from the commitment program before the expiration of Molacek's 30-year probationary period.  The terms of probation expressly provided that, in the event of a possible release, the district court would hold a hearing to review the existing probationary conditions and impose any new conditions warranted by the changed circumstances.  The district court explicitly advised Molacek that a violation of any of the conditions, even if it did not constitute a crime, could result in imprisonment.

In the departure report accompanying the sentencing order, the district court provided, as reasons for departure, Molacek's extreme mental impairment, his remorse, his attitude, his amenability to probation, and the victim statements provided by Molacek's father and maternal aunt.  In comments at the sentencing hearing, the district court also cited, as a basis for departure, Molacek's age and immaturity, the support of Molacek's family, the absence of any previous criminal conviction, the fact that Molacek's extreme mental illness might have constituted a defense to the charge, and Minn. Stat. § 609.1055 (2004), which authorizes alternative placement for offenders with serious and persistent mental illness.  The state appeals the dispositional departure.

D E C I S I O N

            The Minnesota Sentencing Guidelines establish presumptive sentences that specify  both the duration and the type of disposition.  Minn. Sent. Guidelines cmt. II.C.01.  The guidelines direct the sentencing judge to use the presumptive sentence "unless the individual case involves substantial and compelling circumstances."  Id. II.D.  When these circumstances are present, the sentencing judge "may depart from the presumptive sentence and stay or impose any sentence authorized by law."  Id.  Thus, the starting point for review of all departures is the sentencing judge's determination that the individual case involves substantial and compelling circumstances.

            The guidelines provide a list of mitigating and aggravating factors that may constitute substantial and compelling circumstances.  Id. II.D.2.  This nonexclusive list includes three mitigating factors that the district court referenced in the sentencing hearings and in his departure report:  extreme mental impairment, circumstances that do not amount to a defense but mitigate culpability, and availability of an alternative placement for an offender with serious and persistent mental illness.  Id. II.D.2.a.(3), (5), (6).  We turn to the record to determine whether it provides support for these three factors.   

            The record contains ample, unrebutted evidence that Molacek suffers from an extreme mental impairment originating in early childhood and continuing through the time of the offense.  The order for Molacek's commitment as mentally ill and dangerous states that his bipolar disorder with psychotic features is a substantial disorder of his thought, mood, and perception, which grossly impairs his judgment, behavior, capacity to recognize reality, and capacity to reason or understand.  Starting in 1999 and continuing through 2003, his bipolar disorder manifested itself in command hallucinations that he should kill his parents.  The psychiatric evaluations also refer to Molacek's repeated use of marijuana and his occasional use of other drugs.  The district court specifically stated that the voluntary use of marijuana or other drugs does not support a downward departure.  The psychiatric reports establish, however, that Molacek's extreme mental impairment operates in conjunction with and also independently of the drug abuse.  Because Molacek is an offender who has been diagnosed with an extreme mental illness that persisted before, during, and after the offense, a substantial and compelling factor exists that permits the district court to depart from the guidelines presumptive sentence.  See, e.g., State v. Martinson, 671 N.W.2d 887, 891-92 (Minn. App. 2003) (concluding that mental illness of paranoia and schizophrenia existing before, during, and after offense constitutes mitigating factor). 

The record also supports the district court's reference to the existence of substantial grounds that, although not amounting to a defense, excuse or mitigate the defendant's culpability.  Molacek reported that he heard voices telling him to "do it" the day before the shooting and that those voices continued with a screaming quality through the next day.  Both the defense psychiatrist and state psychologist agreed that Molacek was experiencing manifestations of his bipolar disorder at the time of the shooting.  The district court stated at the second sentencing hearing, that there is "no doubt in my mind that his [Molacek's] act was a product of his mental illness."  The court further stated that "in my experience in criminal law, which began in 1968 . . . this is the most seriously mentally ill defendant I have seen, other than those who were actually found to be not guilty by reason of mental illness."  The record supports the factor that allows a departure for substantial grounds that excuse or mitigate culpability, although not amounting to a defense.

On the third factor, the alternative placement for an offender with serious and persistent mental illness, the district court noted that Minn. Stat. § 609.1055 (2004) expressly permits the imposed dispositional departure and the probationary conditions: 

When a court intends to commit an offender with a serious and persistent mental illness . . . to the custody of the commissioner of corrections for imprisonment at a state correctional facility . . . , the court, when consistent with public safety, may instead place the offender on probation . . . and require as a condition of the probation that the offender successfully complete an appropriate supervised alternative living program having a mental health treatment component.

 

For purposes of section 609.1055, "mental illness" specifically includes "bipolar disorder."  Minn. Stat. § 245.462, subd. 1(c) (2004).  Thus, this third factor also provides a basis for the district court's dispositional departure.

In addition to the nonexclusive list of departure factors specifically provided in the guidelines text, cases interpreting the guidelines have developed a supplemental category of reasons that support dispositional departures.  See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (holding that defendant's particular amenability to probation or treatment will justify dispositional departure).  These factors differ from the fixed determinate-sentencing factors that generally apply to durational departures and focus instead on assessments of an offender's personal characteristics to determine whether a dispositional departure is appropriate.  See State v. Hanf, 687 N.W.2d 659, 662 (distinguishing between durational departures based on fixed determinate-sentencing factors and dispositional departures based on assessments of offender characteristics), review granted (Minn. Dec. 14, 2004).  In the sentencing hearings and in the departure report, the district court took into account factors that caselaw has identified as criteria to determine whether a defendant is particularly amenable to probation or treatment.

            These amenability-to-probation criteria 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," Trog, 323 N.W.2d at 31; the defendant's acceptance of responsibility, cooperation with the investigation, and positive attitude in court, State v. Hickman, 666 N.W.2d 729, 732 (Minn. App. 2003); the availability of probationary treatment that is tailored to the defendant, State v. Hennessy, 328 N.W.2d 442, 443 (Minn. 1983); the possibility that treatment and other probationary conditions will reduce recidivism, State v. Dokken, 487 N.W.2d 914, 917 (Minn. App. 1992), review denied (Minn. Sept. 30, 1992); State v. Larson, 473 N.W.2d 907, 910 (Minn. App. 1991); the availability of probationary conditions that can assure the defendant's supervision and protect the public safety, State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994); and a defendant's particular "unamenability" to prison because there is reason to believe that the defendant will be victimized in prison.  Trog, 323 N.W.2d at 31; State v. Wright, 310 N.W.2d 461, 462 (Minn. 1981).

The record provides specific evidence to support the caselaw criteria that the court relied on as a basis for the dispositional departure.  Molacek was nineteen at the time of the offense, had a criminal-history score of zero, was consistently remorseful, fully cooperated with investigating police officers and with the ordered psychological evaluations, and had the support of his family, which included his father and his mother's sister.  The defense psychologist's recommendation that Molacek could be treated in a residential treatment program was not contested.  The district court specifically observed that Molacek's progress at Bar None and during the initial months of his commitment to the state security hospital further demonstrated that he is willing to participate in treatment and that treatment can be successful.  See Trog, 323 N.W.2d at 31 (finding no abuse of discretion by granting dispositional departure when "defendant is particularly suitable to individualized treatment in a probationary setting"). 

The state does not specifically contend that the district court imposed a sentence unauthorized by law or that the sentencing factors on which the court relied are not a sufficient basis for a dispositional departure.  Instead, the state argues that the sentence represents an abuse of discretion because "the stayed 306-month sentence simply does not address" the concerns of "protecting the public and punishing the defendant."  The state also argues the district court did not properly consider the presentence investigation, which recommended no departure.

            We address, first, the divergence of the sentence from the recommendation in the presentence-report recommendation.  A presentence-investigation recommendation does not obligate the district court to impose a particular sentence or affect its responsibility or discretion in sentencing.  See State v. Park, 305 N.W.2d 775, 776 (Minn. 1981) (instructing sentencing courts to consider each case on its merits and not accept presentence-investigation report as definitive).  Consequently, the failure to follow the recommendation does not support a reversal or establish an abuse of discretion, particularly in light of the limitations of Molacek's presentence report, which was completed a year before sentencing; did not take into account his commitment or postcommitment circumstances; and focused on offense-related rather than offender-related characteristics.

            The state's second and primary argument is that the district court failed to address the concerns of punishing the defendant and protecting the public.  The record demonstrates that the district court considered public safety, the gravity of Molacek's conduct, and his obvious mental illness.  The court paid particularly close attention to the danger Molacek posed to the public and himself if left untreated.  At the first sentencing hearing, the court specifically referred to its obligation to protect the public, indicating that it intended to structure a sentence that would assure that "Molacek would be in a custodial treatment setting for a length[y] period . . . as long as it takes to enable doctors to arrive at an opinion to a fairly confident degree of medical certainty that if released, he would be no danger to himself or to others."

            The state's argument suggests that the commitment to St. Peter provides less protection for the public, and, therefore, we should determine that the district court abused its discretion by not committing Molacek to prison.  The record does not support this argument. 

            The commitment law provides a special procedure for granting full or partial release to any person committed as mentally ill and dangerous.  See Minn. Stat. § 253B.18, subds. 4b-15 (2002) (explaining, in detail, requirements for transfer or discharge).  Whenever either the patient or the treatment facility seeks to have the patient discharged, provisionally discharged, or transferred out of the state security hospital, the applicant must petition a three-member "special review board," which then holds a hearing on the petition.  Id., subd. 5.  The requested relief can be granted only with the concurrence of the special review board and the commissioner of human services.  Id., subds. 6, 7, 15.  Following the commissioner's decision, either the patient or the county attorney may petition a specially appointed three-judge district court panel to conduct a de novo hearing and issue a decision that supersedes the commissioner's decision.  Minn. Stat. § 253B.19, subds. 1-3 (2002).  The Minnesota Supreme Court has described the graduated-release process, which includes transfer to a less-secure facility, provisional discharge, and full discharge, as an important part of the overall commitment process that assures that the patient can demonstrate that he has gained sufficient control over his actions to be released into the public with reasonable safety.  In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994) (describing release procedures for mentally-ill-and-dangerous commitments including psychopathic-personality commitments).

            The state's witness, the current Director of Behavioral Health for the Minnesota Department of Corrections, testified that the procedure for release from St. Peter is a very conservative release structure.  This conservative release structure permits provisional discharge only if the patient is no longer in need of inpatient treatment and supervision and the patient is no longer dangerous to the public.  Minn. Stat. § 253B.18, subd. 7.  This provisional discharge is supervised and subject to revocation.  Id. The prosecutor, in his closing statement, referred to the "in-chambers discussions about the likelihood that Mr. Molacek would be at the state hospital for a time comparable to the commitment for second degree murder." 

Regardless of whether Molacek remains at the security hospital for the full 306 months that equates to the presumptive sentence, the sentence continues as a potential disposition for the duration of the 30-year stay of execution.  As conditions of this stay, the district court ordered that Molacek comply with all treatment conditions, doctors' orders and medication prescriptions; remain law abiding; abstain from use of alcohol, marijuana, and controlled substances; and possess no firearms, knives, or any other real or replicated weapon.  The court also ordered that the probation officer report to the court every six months and provide notice to the county attorney and the court in the event that Molacek was to be considered for discharge from the mentally-ill-and-dangerous commitment before expiration of the 30-year probationary period.  Finally, the court stated that, upon notice of a potential or impending release from Molacek's current high-security, high-intensity treatment program, the district court would review all of the probationary conditions and impose any new conditions that would be appropriate. 

The district court emphasized that any failure to follow the probationary conditions would constitute a violation that would result in executing the prison sentence.  The court retains the authority to revoke probation if Molacek violates the conditions, which include full participation in treatment.  Caselaw establishes that probation may be revoked when treatment has failed.  State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980); State v. Hemmings, 371 N.W.2d 44, 47 (Minn. App. 1985) (finding district court properly revoked defendant's probation when his response to sex-offender treatment program was poor and experts recommended termination of treatment).

Finally, the state, citing State v. Law, 620 N.W.2d 562 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000), claims that Molacek's sentence does not sufficiently punish his actions or protect the public.  The state's reliance on this case is not well founded.  First, the punishment of offenders is taken into account in the development of the guidelines structure.  See Minn. Sent. Guidelines I, II (addressing purpose and principles of guidelines and determining presumptive sentences); see also State v. Shattuck, ___N.W.2d__ (Minn. Aug. 18, 2005) (describing function and purpose of sentencing guidelines), petition for reh'g filed (Minn. Aug. 29, 2005).  Second, the reversal in Law was not based on failure to protect the public, but on the district court's failure to provide a sufficient basis for departure.  The district court in Law based its departure solely on the defendant's alleged rehabilitation between the date of the arrest and sentencing.  Law, 620 N.W.2d at 565.  It was undisputed that the district court stated exacting conditions for the probation.  Id. 

Unlike the departure in Law, the district court's dispositional departure for Molacek's sentence is squarely based on three departure reasons listed in the text of the sentencing guidelines and a number of additional factors identified by caselaw.  The state has not demonstrated an abuse of discretion in the district court's sentence of Molacek.

            Affirmed.

 

 

DIETZEN, Judge (dissenting)

Following his conviction of second-degree murder of his mother, respondent was committed, pursuant to a petition by his family, to the St. Peter Regional Treatment Center (St. Peter RTC), on the basis that he is mentally ill and dangerous.  The issue before us on appeal is not whether respondent should continue his treatment for mental illness at St. Peter RTC.  Both parties agree that he should.  But rather the issue is whether the district court abused its discretion by departing dispositionally from the presumptive executed sentence of 306 months in favor of probation with no provision for additional jail time or imprisonment.[1]  In doing so, the district court rejected the state's objection to a dispositional departure and its recommendation for a dual commitment, i.e., that respondent be committed to St. Peter RTC for treatment; and following his release, that he serve the remainder of his prison sentence.  In short, the majority affirms the district court order that respondent only serve 276 days of jail time for second-degree murder.  Because respondent should be required to serve the remainder of his prison sentence following his release from St. Peter RTC, I respectfully dissent.  Two reasons support this conclusion.  First, the sentence improperly denigrates the serious nature of the crime.  Second, respondent's amenability to probation is neither substantial nor compelling.               

I.

We review a district court's departure from a presumptive sentence for an abuse of discretion.  State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).  "The district court has broad discretion to depart if substantial and compelling circumstances exist, and this court generally will not interfere with the exercise of that discretion."  State v. Martinson, 671 N.W.2d 887, 891 (Minn. App. 2003).

The district court's departure under these circumstances denigrates the serious nature of the crime.  The sentencing guidelines specifically require that departures from the presumptive sentence be made only in exceptional cases where substantial and compelling circumstances exist. Minn. Sent. Guidelines I.4.  The supreme court has stated that "[w]hen a sentencing court departs from the presumptive sentence, it must still strive to determine a sentence that is proportional to the severity of the offense."  State v. Spain, 590 N.W.2d 85, 89 (Minn. 1999).  Indeed, the purpose of the sentencing guidelines is to "ensure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction . . . ."  Minn. Sent. Guidelines I (emphasis added).  The sentencing guidelines further recognize that beyond punishment, sanctions proportional to the severity of the crime serve the important penal objectives of retribution, public protection, deterrence, and public condemnation of criminal conduct.  Minn. Sent. Guidelines III.A.2.

Here, respondent was convicted of second-degree murder for the intentional, premeditated, and unprovoked fatal shooting of his mother.[2]  At trial, respondent raised no defenses to mitigate the gravity and seriousness of his violent actions.  Society has construed murder as the ultimate offense and, accordingly, has demanded the most severe punishment for such violent actsa mandate reflected in our sentencing guidelines.  The district court's denial of prison time ignores the severity of this crime and disregards critical penal objectives creating a level of disproportionality that this court has previously rejected.

The stay of sentence under the circumstances of this case tends to defeat the rule of law, offending the maxim attributed to Oliver Wendell Holmes, Jr., that "the law must keep its promises."  While we view rehabilitation as one of the primary purposes of criminal justice, we cannot disregard the equally important goals of deterrence of the individual, of others, and even retribution.

 

State v. Law, 620 N.W.2d 562, 565-66 (Minn. App. 2000) (citations omitted.)

            Here, no substantial and compelling circumstances exist in the record that demonstrate respondent should not be required to serve any prison time.  Upon his release from St. Peter's RTC, respondent should be required to serve the remainder of his sentence.

II.

The district court concluded that respondent was amenable to probation based on his age and immaturity, lack of a criminal record, family support, and mental illness.  It reasoned that respondent was amenable to probation because he would do better in a treatment setting at St. Peter RTC than the state prison.  But neither the expert testimony nor the district court concluded that treatment at St. Peter RTC will result in a permanent improvement in respondent's mental illness or that he will be rendered less dangerous.  In essence, the district court merely concluded that St. Peter RTC would provide better treatment opportunities, i.e., that respondent would be more comfortable. 

But the purpose of probation is not that respondent be more comfortable.  Rather, its purpose is to "produce a law-abiding citizen and at the same time to protect the public against continued criminal or antisocial behavior."  State v. Haynes, 423 N.W.2d 102, 104 (Minn. App. 1988) (citation and emphasis omitted).  Probation is appropriate for those offenders that pose a low risk of reoffending and, correspondingly, do not pose a substantial risk to self or others.  Because of his serious mental illness, respondent was, at the time of sentencing, an offender that posed a high risk of reoffending.  Nothing in the record supports the conclusion that treatment will eliminate that risk.

Respondent has been continuously yet unsuccessfully treated for his mental health issues since a young age.  The psychiatrist retained to examine respondent testified that he was uncertain regarding respondent's ability to function outside of a controlled-treatment setting.  In fact, the record reveals that any periods of remission of respondent's mental illness have been short-lived and were followed by more serious symptoms, particularly during the transition from a controlled-treatment setting into the community.  The murder of respondent's mother occurred mere months after release from Bar None treatment facility.

The record also fails to support a finding that respondent would be particularly vulnerable if incarcerated.  The psychiatrist conceded that respondent is no more immature than most prison inmates in respondent's age range.  A Department of Corrections official testified that approximately 25% of Minnesota's prison population have been diagnosed with mental illness and receive psychiatric medications, indicating that the mere existence of mental illness does not equate with vulnerability in prison.

In short, respondent's amenability to probation is neither substantial nor compelling.  At the time of sentencing, respondent posed a high risk of reoffending, and treatment will not eliminate this risk. 

The defense argued, and the district court agreed, that Minn. Stat. § 609.1055 (2004) justifies probation for respondent.  The statute does allow the district court to order probation instead of an executed sentence for offenders with a mental illness provided that the offender meets the traditional requirements of probation and that public safety be protected.  See id.

Here, the record does not support either conclusion.  Respondent does not meet the traditional requirements of probation for the reasons previously stated.  As to public safety, the district court recognized the risk that respondent could undergo a relatively rapid recovery and be released from St. Peter's RTC, but failed to provide for public safety upon his release.  Clearly, the potential exists that respondent will be released within one year and have no probationary conditions that protect the public. 

While it is true that the district court could conduct a hearing upon respondent's release to determine other conditions of probation, the court may not have the authority to order additional jail time or imprisonment.  Minnesota Rule of Criminal Procedure 27.03, subd. 9, allows a court to "modify a sentence during either a stay of imposition or stay of execution" but not to increase the "period of confinement."  But whether modifying the sentence by adding probationary prison time as a condition of probation would be an increase in the "period of confinement" does not appear to have been decided.  The cases that have dealt with increases in the "period of confinement" have involved increases in the prison sentence itself.  See, e.g., State v. Walsh, 456 N.W.2d 442 (Minn. App. 1990).

Consequently, the potential exists that respondent will undergo a rapid recovery and be released in less than one year.  At that time, it is uncertain whether the district court could add jail time or imprisonment as a condition to respondent's probation.  In that circumstance, respondent would have served no additional jail time or imprisonment, and the court may lack the ability to protect public safety.

III.

            Because of the serious nature of the crime, respondent's lack of amenability to probation, and the presence of considerable public safety concerns, I would reverse the district court's dispositional departure from the presumptive executed sentence of 306 months and remand for resentencing.

[1] At sentencing, the district court credited respondent with 559 days of jail time.  The record shows that at that time respondent had been in jail for 276 days and at the St. Peter RTC 273 days.

[2] Originally, the state intended to charge appellant with first-degree murder, but in acknowledgement of respondent's mental illness, reduced the charge to second-degree murder in a Lothenbach trial.