Estate of Blanche S. Gile, Deceased.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

IN COURT OF APPEALS

CX-00-124

State of Minnesota,

Appellant,

vs.

Joel Leroy Lorenzen,

Respondent.

Pipestone County District Court

File No. K9-99-0181

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

James E. O'Neill, Pipestone County Attorney, Damain D. Sandy, Assistant County Attorney, 114 North Hiawatha Avenue, Pipestone, MN 56164 (for appellant)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for respondent)

            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Huspeni, Judge.

HUSPENI, Judge

            The state appeals from the district court's dispositional departure in sentencing respondent for first-degree criminal sexual conduct.  Because we conclude that the district court did not abuse its broad discretion in sentencing, but note the necessity of making an implicit condition of probation explicit, we affirm in part and remand.

FACTS

            Respondent Joel Leroy Lorenzen pleaded guilty to one count of first-degree criminal sexual conduct, admitting to sexually abusing his stepdaughter, including several incidents of sexual penetration, over the course of eight years.  Twice during the course of the abuse, Lorenzen's daughter attempted suicide. 

            The Department of Corrections' agent who completed a pre-sentence investigation (PSI), recommended that the court impose the 86-month guidelines sentence.  In addition to the PSI, psychologist Frank Weber, Ph.D., prepared an adult sex-offender assessment.  Dr. Weber interviewed Lorenzen, reviewed available documents, and administered various tests to form the bases for his opinion and alternative recommendations.  He recommended either incarceration or outpatient sex-offender treatment if Lorenzen would agree to abide by certain additional restrictions.  Those restrictions included refraining from the use of drugs and alcohol, no contact with the victim or family until approved by his therapist, and no contact with females under the age of 18.  In addition to these alternative recommendations, Dr. Weber concluded:

Since I have been asked to render an opinion, I will state that my professional opinion is that [Lorenzen] will not be able to refrain from initiating contact with his family if he remains in the community, leaving prison incarceration as the best treatment choice.

            Lorenzen's attorney provided the court with 18 letters from Lorenzen's family and friends.  The letters generally describe Lorenzen as a hard worker, a good father, and a good husband.  A majority of them ask the court to impose a sentence that requires treatment but not prison.  Among the letters were ones from the victim and Lorenzen's wife asking the court to order treatment and requesting that Lorenzen not receive executed prison time.

            At the sentencing hearing, the state requested that the court impose a guideline sentence of 86 months.  Lorenzen's attorney urged that probation was more appropriate.  The district court, indicating that it had spent a significant amount of time attempting to determine the appropriate sentence in this difficult case, imposed an 86-month stayed prison sentence with the conditions recommended by Dr. Weber.  Terms of the stayed sentence included a requirement that Lorenzen serve one year in the county jail with release for work and sex-offender treatment, and 15 years of supervised probation.

The state contends that the district court abused its discretion by departing from the guidelines without sufficient justification.

D E C I S I O N

            A court may dispositionally depart from the sentencing guidelines if the defendant is "particularly amenable to probation or if offense-related mitigating circumstances are present."  State v. Love, 350 N.W.2d 359, 361 (Minn. 1984).  Decisions to depart from the sentencing guidelines rest within the trial court's discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  As a reviewing court, we will not "substitute our own judgment for that of the district court" regarding sentencing matters.  State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994).

            The district court's dispositional departure in this case is based on its conclusion that Lorenzen is amenable to probation.  Although Dr. Weber's opinion was that incarceration was the better alternative in this case, he also recommended outpatient treatment as an alternative to incarceration.  Dr. Weber stated that his opinion favoring incarceration was based on his belief that Lorenzen would have a difficult time avoiding contact with his family.  In light of this, his alternative recommendation called for outpatient sex-offender treatment coupled with significant restrictions on Lorenzen's contact with the victim and his family to provide them with an opportunity to heal, and to provide Lorenzen with an opportunity to appreciate the significance of his crime.  After receiving the PSI and Dr. Weber's report, "[i]t became the grave responsibility of the sentencing court to sort out the conflicting recommendations and make a determination" regarding the most appropriate sentence.  State v. Dokken, 487 N.W.2d 914, 919-20 (Minn. App. 1992) (Harten, J. concurring specially), review denied (Minn. Sept. 30, 1992).

Dr. Weber's report supports the district court's sentencing decision in this case.  We recognize that there is also evidence that would support a guideline sentence.  But we decline the state's invitation to substitute our "distant judgment for that of the sentencing court, particularly where, as here, there is evidence to support the sentencing court's discretion."  Id. at 920.  The conditions of Lorenzen's probation include substantial restrictions; if he fails to comply with those conditions, he faces the real possibility of having his probation revoked and being sent to prison. 

An issue remains; one upon which the state and Lorenzen agree.  Lorenzen's entry into, satisfactory progress, and successful completion of sex-offender treatment must be included as an express condition of his probation.  (This condition of probation is already clearly implied in the sentence imposed by the district court.)  Thus, we remand for an amended sentencing order making entry into, satisfactory progress, and successful completion of sexual-offender treatment an express condition of Lorenzen's probation.  See Sejnoha, 512 N.W.2d at 601 (remanding to make implied requirement of successful completion of sex-offender treatment an explicit condition of probation).

Affirmed in part and remanded.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.