This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Brett Allen Goulet,
Filed April 29, 2008
Polk County District Court
File No. K3-06-375
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul,
MN 55101; and
Gregory A. Widseth, Polk County Attorney, 223 East Seventh Street, Suite 101,
Crookston, MN 56716 (for respondent)
Lawrence Hammerling, Chief Appellate Public Defender, Philip Marron, Assistant Public
Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104
Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and
Retired judge of the district court, serving as judge of the Minnesota Court of Appeals
by appointment pursuant to Minn. Const. art. VI, § 10.
Appellant challenges the denial of his motion for a downward dispositional
departure on his sentence, arguing: (1) that the district court erred by failing to make any
findings regarding the reason for denial; and (2) that the district court erred by concluding
that there were no compelling circumstances warranting departure. We affirm.
On November 11, 2005, appellant Brett Goulet got into a loud argument with Julia
Smith, his live-in girlfriend. After Smith slapped him, Goulet decided to leave for the
night, and he was in the process of loading up his car when two police officers arrived,
responding to a reported domestic assault. Officer Arnold Andring noticed a gun case on
the sidewalk and found a .30 caliber rifle and ammunition inside the case. Goulet stated
that it was his grandfather’s rifle, which Smith had borrowed to go hunting; this was
consistent with Smith’s later statements to officer Andring.
Goulet’s grandfather confirmed that the rifle was indeed his. But he also told
officer Andring that it was Goulet, not Smith, who had picked up the rifle to go deer
hunting. Goulet’s grandfather stated that he was unaware his grandson was on probation
and “never would have given . . . Goulet the rifle had he known that.” And although
Smith had told officer Andring that Goulet did not hunt, Minnesota Department of
Natural Resources records showed that Goulet had purchased a deer-hunting license on
November 7, 2005.
Because Goulet has an extensive criminal and juvenile record,1 including a
number of “crime[s] of violence” within the meaning of Minn. Stat. § 624.712, subd. 5
(2004), he was charged with unlawful possession of a firearm in violation of Minn. Stat.
§ 624.713, subds. 1(b), 2(b) (2004) (making it unlawful for a person convicted or
adjudicated delinquent for committing “crime of violence” to possess firearms).
Although this offense carries a mandatory-minimum sentence of five years, Minn. Stat.
§ 609.11, subd. 5(b) (2004), Goulet’s plea agreement permitted him to enter an Alford
plea and argue for a downward dispositional departure, as allowed by Minn. Stat.
§ 609.11, subd. 8(a) (2004). After hearing argument from both sides, the district court
imposed a five-year sentence but made no findings on the record. This appeal followed.
Goulet first argues that the district court erred when it failed to make findings of
fact on the record to justify its decision not to depart downward. He cites Minn. Stat.
§ 244.10, subd. 1 (2004) and Minn. R. Crim. P. 27.03, subd. 1(F) in support of his
position. The statute requires the court, at the conclusion of the sentencing hearing, to
“issue written findings of fact and conclusions of law regarding the issues submitted by
the parties, and . . . enter an appropriate order.” Minn. Stat. § 244.10, subd. 1. Similarly,
the rule requires the court to make findings of fact, conclusions of law, and an
While a juvenile, Goulet was adjudicated delinquent for second-degree assault and
possessing a dangerous weapon on school property. As an adult, he was convicted of
first-degree criminal damage to property, gross-misdemeanor theft, fifth-degree
controlled substance, and two counts of felony theft of motor vehicle.
appropriate order on the issues submitted by the parties, but allows the court either to
state them on the record or to make them in writing within 20 days after the conclusion of
the sentencing hearing. Minn. R. Crim. P. 27.03, subd 1(F). Goulet asks that this court
remand the matter to the district court to make the appropriate findings, conclusions, and
We find this argument unpersuasive. Initially, we note that neither side presented
any evidence at the sentencing hearing, so we are not sure what factual issues there were
to resolve or what legal conclusions there were to draw. Goulet did plead guilty, and, on
the basis of the plea, the district court found him guilty. The mandatory minimum
sentence for the offense is a commitment for five years, and the court imposed it. In light
of the fact that no evidence was presented at the sentencing hearing and that the
mandatory minimum sentence was five years, the court’s finding of guilty and imposition
of the mandatory minimum sentence were sufficient findings of fact, conclusions of law
and order, as required by both the statute and the rule upon which Goulet relies.
Goulet cites State v. Austin, 295 N.W.2d 246 (Minn. 1980), arguing that remand is
necessary to ensure that the final disposition of his case is legitimate and to enable proper
appellate review. But Goulet’s reliance on Austin is unpersuasive. Sentencing for an
offense is an entirely different matter from finding a probation violation. When an
individual pleads guilty to, or is found guilty of, an offense, the appellate court can
determine the individual’s misconduct by looking at the complaint and the statute that
was violated. Indeed, there must have been a violation of a statute in the first place. But
a probation violation may follow from conduct that does not violate a statute. In fact, it is
usual for the sentencing court to impose conditions of probation that do not involve
statutory violations, but are appropriate to the particular offender, such as meeting
regularly with a probation officer, completing a treatment program, refraining from
alcohol or drugs, and so forth. For the appellate court to meaningfully review a case of a
probation violation, it is necessary for the record to identify the particular condition
violated by the offender and to contain a finding that the violation was intentional or
inexcusable, both of which were articulated by the court in Austin. 295 N.W.2d at 250.
And when the court imposes a disposition for a probation violation, the sentencing
guidelines offer only general principles, as opposed to the operation of the guidelines at
sentencing. Compare Minn. Sent. Guidelines III.B (probation violation) with Minn. Sent.
Guidelines IV, IV (sentencing). For that reason, Austin requires the court to make a
finding that the need for confinement outweighs the policies favoring probation. 295
N.W.2d at 250.
It seems to us that Goulet is really arguing that the district court should have given
its reasons for declining to depart downward. Such an argument, if made, would be
equally unpersuasive. Where the legislature has provided a minimum sentence of a year
and a day or more, the presumptive sentence is commitment to the commissioner of
corrections. Minn. Sent. Guidelines II.E.
The court may depart downward from a
mandatory sentence, but in such a case, “the judge must provide written reasons which
specify the substantial and compelling nature of the circumstances.” Id.; see also State v.
Geller, 665 N.W.2d 514, 516 (Minn. 2003) (citing Minn. R. Crim. P. 27.03) (stating that
if the district court decides to depart, it must explain its reasons on the record). If, on the
other hand, the court “considers reasons for departure but elects to impose the
presumptive sentence,” no explanation is necessary. State v. Van Ruler, 378 N.W.2d 77,
80 (Minn. App. 1985). Consequently, we conclude that because no new evidence was
presented at the sentencing hearing, the district court was not required to make additional
findings of fact or conclusions of law before imposing the statutory minimum sentence.
Goulet next argues that the district court erred by not departing downward. The
court may depart downward from a mandatory minimum in an individual case, but only if
the court “finds substantial and compelling reasons to do so.” Minn. Stat. § 609.11, subd.
8(a) (2004). Substantial and compelling circumstances are “those circumstances that
make the facts of a particular case different from a typical case,” State v. Peake, 366
N.W.2d 299, 301 (Minn. 1985), and their existence is a threshold issue for departure,
State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).
A finding of such
circumstances is required before the district court may depart from the mandatory
minimum sentence. State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005). But even if
the individual case provides grounds for departure, the district court is not required to
actually depart. State v. Olson, 459 N.W.2d 711, 716 (Minn. App. 1990), review denied
(Minn. Oct. 25, 1990). Rather, the existence of compelling circumstances provides only
the foundation upon which the district court may exercise its broad discretion. Curtiss,
353 N.W.2d at 263.
This court does not ordinarily interfere with the district court’s discretion to
decline a request to depart from the presumptive sentence. Olson, 459 N.W.2d at 716.
Compelling reasons for departure may be counterbalanced by equally compelling reasons
against it. Id. Implicit in this deference, however, is the assumption that the district court
in fact “exercised its broad discretion, comparing reasons for and against departure.”
Curtiss, 353 N.W.2d at 263. When deciding whether a downward dispositional departure
is appropriate, the defendant’s amenability to probation is the “major factor to consider.”
Van Ruler, 378 N.W.2d at 80. Here, the district court could easily have concluded that
Goulet was not amenable to probation.
The presentence investigation report (PSI)
bluntly states that “Goulet is at high risk to re-offend”: he has been under court
supervision for the past seven years and “has violated the terms of [his] probation
multiple times.” In fact, Goulet was already on probation for three other felonies when
he committed the offense in this case. (We note that at the sentencing hearing, Goulet did
not find any errors or omissions in the PSI.)
Goulet claims that he is amenable to probation. The district court may also “focus
on the defendant as an individual and try to determine whether the presumptive sentence
would be best for him and for society,” taking into account factors including the
defendant’s age, prior record, remorse, cooperation, attitude in court, and the support of
friends or family. Id. But here, Goulet displays no remorse; according to the PSI he
“does not see his behavior as wrong or even see the [firearm-possession charge] as
valid,” describing the charge as “bullsh*t.”
Goulet further argues as a ground for departure that “[his] offense was atypical.”
Indeed, the district court should also consider “whether the defendant’s conduct was
significantly more or less serious than that typically involved in the commission of the
crime in question.” State v. Sanchez-Sanchez, 654 N.W.2d 690, 693-94 (Minn. App.
2002) (quotation omitted). Goulet suggests that “[a]side from the simple possession of
the firearm, there was no other crime or illegal use associated with the firearm,” which
“was only illegal because [he] was prohibited from possessing a firearm as a result of his
previous convictions.” But there did not need to be any other crime or illegal use
associated with the firearm beyond “simple possession” because simple possession was
itself the crime. Minn. Stat. § 624.713, subd. 1(b) (2004). Moreover, Goulet was not
prohibited from possessing firearms merely because of his prior convictions; he was
prohibited from possessing firearms because of the violent nature of the offenses. See
State v. Weber, 741 N.W.2d 402, 403 (Minn. App. 2007) (discussing “the legislature’s
obvious desire to restrict firearms from those convicted of violent crimes”).
Goulet offers his National Guard service, during which he regularly carried a
loaded M-16, as a mitigating factor. He states that he “had been in the military service
and successfully completed that.” But we do not read the record to show that his military
service was “successfully completed”. According to the PSI, Goulet received a general—
rather than honorable—discharge.
Although the “stigma imposed by this form of
discharge . . . is significantly less than that associated with a dishonorable discharge,”
United States v. Rice, 109 F.3d 151, 156 (3d Cir. 1997), it does suggest that Goulet was a
less-than-model soldier.2 But whether Goulet could carry a firearm under the auspices of
A general discharge is not given to soldiers who are discharged for completing their
service obligations with the National Guard. Army Reg. 135-178, § 2-9.b(2) (2007).
Rather, it is an administrative separation for soldiers “who do not conform to required
standards of conduct and performance . . . [or] demonstrate potential for further military
federal law while on active duty is irrelevant to whether he was eligible to possess one in
his civilian life. Under Federal law, persons who might otherwise be prohibited from
possessing firearms may carry firearms as part of their military service. Cf. U.S. Const.
art. VI (Supremacy Clause); United States v. Baker, 438 F.3d 749, 758 (7th Cir. 2006)
(observing that 18 U.S.C. § 925(a)(1) effectively permits “members of the armed services
and law enforcement agencies [i.e., not civilians] who might otherwise be prohibited
from carrying firearms to do so in connection with their public responsibilities”
(alteration in original)). In any event, that Goulet may have handled a firearm while in
the service, under military command and subject to military discipline, does not mitigate
the offense of illegally possessing a firearm in the relative freedom of civilian life.
In short, the district court was well within its broad discretion when it declined to
find compelling circumstances warranting a downward dispositional departure.
service.” Army Reg. 135-178, § 1-1.b(3) (2007); see Rice, 109 F.3d at 156 (discussing
reasons for general discharge). Although the record does not reflect the specific reason
for Goulet’s separation, a general discharge from the National Guard signifies that a
soldier’s service “has been honest and faithful,” but that “significant negative aspects of
the [s]oldier’s conduct or performance of duty outweigh positive aspects of the [s]oldier’s
military record.” Army Reg. 135-178, § 2-9.b (2007).