State of Minnesota, Respondent, vs. Kelly Scott Paradee, Appellant.

State of Minnesota, Respondent, vs. Kelly Scott Paradee, Appellant. A05-419, Court of Appeals Unpublished, May 9, 2006.

This opinion will be unpublished and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

A05-419    

 

State of Minnesota,

Respondent,

 

vs.

 

Kelly Scott Paradee,

Appellant.

 

Filed May 9, 2006

Affirmed

Randall, Judge

 

CarverCounty District Court

File No. K7-02-2195

 

 

Richard L. Swanson, Attorney at Law, 207 Chestnut Street, Suite 235, P.O. Box 117, Chaska, Minnesota, 55318 (for appellant); and

 

Michael A. Hatch, State Attorney General, John B. Galus, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, Minnesota 55101; and

 

Michael A. Fahey, Carver County Attorney, Michael D. Wentzell, Assistant Carver County Attorney, Carver County Attorney's Office, 604 East Fourth Street, Chaska, Minnesota, 55318 (for respondent).

 

 

            Considered and decided by Minge, Presiding Judge, Toussaint, Chief Judge, and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

This is an appeal from a sentence imposed for first-degree criminal sexual conduct.  Appellant argues that the trial court abused its discretion in declining to grant appellant a downward dispositional departure.  Appellant argues that his lack of a history of sex offenses, his amenability to treatment, and the victim impact statement all supported a downward departure.  We affirm.

FACTS

            In 2002, appellant Kelly Paradee sexually assaulted his girlfriend's 12-year-old daughter after giving her a can of Mountain Dew spiked with an unknown substance.  In August 2004, appellant pleaded guilty to first-degree criminal sexual conduct.  A presentence investigation, an adult sex-offender assessment, and a psycho-sexual evaluation were conducted. 

            During sentencing, a victim impact statement prepared by the victim and her mother was read into the record.  The statement was favorable to appellant by asking the court not to send him to confinement but instead to counseling for emotional turmoil and drug and alcohol treatment.   

            The presentence investigation report recommended that appellant be sentenced according to the Minnesota Sentencing Guidelines, which call for a presumptive sentence of 144 months with 96 months of that time served inside a correctional facility and 48 months served on supervised release.  The report also recommended that appellant have no contact with the victim or any other children under the age of 18.   

As part of the presentence investigation, Barb Kraemer, a licensed psychologist, conducted an adult sex-offender assessment and recommended that appellant be sentenced according to the sentencing guidelines.  Kraemer opined that while incarcerated, appellant attend sex-offender specific psychotherapy, chemical dependency treatment, and be evaluated by a psychiatrist.  Kraemer also recommended that appellant have no contact with the victim or her family.   

In his psychological and psychosexual evaluation, Dr. Peter Marston stated that appellant presented an ongoing risk to the community and of recidivism.  Based on his evaluation, Marston felt that appellant's interest in pedophilic behavior "will not diminish or go away" and stated appellant is not likely to comply with an outpatient sex-offender treatment program.  Marston believed that if appellant is not treated correctly he would essentially fall through the cracks of justice and become an unregistered sex offender with unknown whereabouts.     

The district court accepted the recommendations of the presentence investigation report, adult sex-offender assessment, and the psycho-sexual evaluation and sentenced appellant to the presumptive sentence of 144 months incarceration.  During sentencing, the district court noted that the record showed that appellant premeditated the assault by providing the victim with a substance in order to subdue her.  The district court further justified its decision by finding that appellant had a paternal role in the victim's life because of his relationship with the victim's mother and that he violated this perception of authority by threatening the victim after the assault.  The district court credited the victim's own words that appellant told her that he had an interest in further criminal sexual conduct with her.  Appellant's lack of remorse also factored into the district court's decision.  Finally, the district court noted that appellant showed an interest in continuing a relationship with the victim's mother even after the rape.  The court concluded appellant totally failed to consider the difficulty that this could create for the victim's recovery and therapy.  

The district court carefully considered whether appellant was amenable to probation.  In finding appellant not amenable to probation, the court cited Martson's psycho-sexual evaluation, in which he opined that "[i]t cannot be concluded or recommended that [appellant] is an acceptable risk for community supervision.  Accordingly, and in addition, sentencing for [appellant] should take into account his likely failure in inpatient, prison-based, sex offender specific treatment, and the fact that he will continue to present a risk for pedophile offenses indefinitely and will resist efforts by the government to track his whereabouts or otherwise supervise his behavior."  The district court buttressed its finding that appellant was not amenable to probation by pointing out that in her report, Kraemer stated that appellant avoids responsibilities of
adulthood, focuses on immediate desires and impulses, and is an alcoholic who is not interested in treatment.     

Appellant argues that the district court abused its discretion by not granting his motion for a downward dispositional departure.  He argues that several mitigating factors existed which the district court failed to acknowledge that show he is amenable to probation.  This appeal follows.

D E C I S I O N

            Appellant argues that mitigating factors exist that warrant a downward departure from the presumptive sentence and that the district court failed to consider these factors in its decision.  He argues that the district court was required to exercise its discretion by deliberately considering the factors in favor of departure and the factors against departure and that the district's failure to do so warrants a remand.  Based on he record, we conclude appellant is not persuasive. 

            A district court may depart from the guidelines only if "substantial and compelling circumstances" exist.  Minn. Sent. Guidelines II.D; see also State v. Best, 449 N.W.2d 426, 427 (Minn. 1989) (holding that "the [district] court has broad discretion to depart only if aggravating or mitigating circumstances are present").  A refusal to depart downwardly from a presumptive sentence is reviewed for an abuse of discretion.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  The presence of a mitigating factor does not require departing from the presumptive sentence.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  It is a "rare case" that warrants reversal of the district court's refusal to depart from the sentencing guidelines.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). 

            A district court may depart from the presumptive guidelines sentence by imposing probation instead of an executed sentence when a defendant is amenable to probation.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  Amenability to probation depends on numerous factors, including the defendant's age, prior record, remorse, cooperation, attitude while in court, and support of friends and/or family.  Id.  Although the facts may justify a downward departure, State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985), the presence of a mitigating factor does not require departure from the presumptive guidelines sentence.  Oberg, 627 N.W.2d at 724.           

  Appellant argues that the district court failed to consider the victim impact statement in its decision.  Contrary to appellant's argument, the record shows that district court considered the statement.  During the sentencing hearing, the victim impact statement was read into the record.  The district court was aware of the desires of the victim and her mother.  The presence of a mitigating factor does not mandate a departure from the presumptive sentence. 

Appellant argues that there is no factual basis for the conclusion that he will "not comply meaningfully with treatment recommendations."  We find there is factual support in the record for this conclusion.  The presentence investigation report states that appellant "was ordered to go to regular AA [Alcoholics Anonymous] meetings after a DUI in 1996, however, he did not continue going to AA and his probation was violated."  The report also states that appellant acknowledges that he has a long history of drug and alcohol abuse.  Despite the court order to attend AA classes, appellant has not attended any voluntary treatment programs even though he admits his drug and alcohol abuse.  The adult sex-offender assessment states that appellant "does not feel that AA has been particularity helpful to him because he recalls the meetings involving he and some other fellows basically remembering the ‘glory days' of past chemical abuse."  Appellant could not adapt to a military lifestyle; he went absent-without-leave (AWOL) just three months after joining the military.

Appellant displays an inability to comply with structure.  He failed to appear twice for appointments and failed to return telephone calls to Dr. Marston for his psychological and psycho-sexual evaluation.  He eventually completed the evaluation only after Dr. Marston reminded him that he was court ordered to undergo the evaluation. 

Appellant argues that the district court failed to "conduct an open-ended examination of [his] individual offender characteristics."  He argues that the district court gave little, if any, consideration to the fact that he has no history of breaking probation or that he continued to engage in criminal offenses.  Although appellant did not violate his probation for the current offense, the record is replete with appellant's propensity to engage in criminal conduct and violations of probation.  In 1996, appellant was ordered to attend AA classes as a result of driving under the influence.  The record shows he failed to comply with the order which resulted in a probation violation.  With regard to criminal conduct, the record shows that appellant has a long history of drug use, was arrested multiple times for driving under the influence, and served jail time for a conviction of possession of a controlled substance.  

Appellant argues that the presentence investigation failed to show that he was uncooperative and failed to show that he minimized his role in the incident.  Appellant claims he did not minimize his own culpability or see himself as a victim.  The record shows otherwise.  Appellant initially denied the rape, is unremorseful for his actions, and minimized his own role in the incident.  The record shows that appellant believes that the victim regrets reporting the offense and, in hindsight, that the victim feels it would have been wiser not to have reported the offense.  Appellant agreed that his actions affected the victim mentally, but not physically.  Appellant believed that he was at fault, but also stated that the victim was "coming on to him" and "egged him on."  Finally, appellant has the desire to continue a relationship with the victim's mother, stating that he and the victim's mother would still be together if he could find a stable place to live. 

Appellant relies on this court's decision in State v. Christopherson, in which it held that a district court may not base its decision to depart from sentencing recommendations "solely on the trial court's subjective determination that a defendant is unamenable to treatment."  500 N.W.2d 794, 797 (Minn. App. 1993). 

In Christopherson, the defendant was convicted of second-degree criminal sexual conduct and was evaluated by a psychologist and probation officer.  Id. at 796.  Both recommended probation for the defendant.  Id.  Contrary to the recommendations and the evidence, the district court sentenced defendant to the presumptive sentence.  Id. at 796-97.  This court held that the district court was wrong to disregard the recommendations and evidence and subjectively sentence defendant to the presumptive sentence.  Id. at 797. 

Appellant's argument does not track Christopherson.  Unlike the court in Christopherson, the district court's decision was supported by the evidence and the recommendations of the presentence investigation, the adult sex offender assessment, and the psychological and psychosexual evaluation. 

The district court properly considered all the evidence in finding appellant not amenable to probation. 

Affirmed.