State of Minnesota, Respondent, vs. Bradley Scott McDowell, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat § 480 A. 08, subd. 3 (1998)

State of Minnesota,
Respondent,

vs.

Bradley Scott McDowell,
Appellant.

Hennepin County District Court
File No. 98381133

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

William G. Peterson, Peterson Law Office, P.A., 3601 Minnesota Drive, Suite 880, Bloomington, MN 55435 (for appellant)

Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

Bradley McDowell pleaded guilty to two counts of second-degree criminal sexual conduct. The district court imposed a prison term of 50 years, which is more than eight times the length of the presumptive sentence. On appeal, McDowell challenges the district court's denial of a dispositional departure, its upward durational departure, and its restrictive conditions of release. We affirm the denial of the dispositional departure, modify the durational departure, and defer to the Commissioner of Corrections for conditions of release.

In 1989, Bradley Scott McDowell, then 30 years old, befriended the families of two eight-year-old children. Unbeknownst to the families, McDowell was at that time on probation for a 1987 criminal-sexual-penetration conviction. Between 1989 and 1994, McDowell several times fondled the children's buttocks and genitals, both through and under their clothes. When taken into custody, McDowell admitted the conduct and said that he needed help. McDowell further admitted that, although he had not threatened or coerced the children, he had evaded resistance by building a trust relationship that he exploited.

The presentence report included statements from two psychologists. The state's psychologist concluded that McDowell was not amenable to treatment and that incarceration was necessary to control his behavior. McDowell's psychologist positively evaluated McDowell's prognosis for controlled change. The psychologist concluded that McDowell is not dangerous except to children who get to know him through family or friends. The psychologist recommended a workhouse sentence and treatment.

The district court, stating that it was relying on its own medical-school background, determined that no available treatment could be effective and imposed the statutory-maximum sentence of 25 years for each count. The court ordered that the sentences be served consecutively and conditioned release on McDowell's "never [having] any contact with children again." The district court did not prepare a written departure report, but stated on the record that the departure was justified because the offenses involved multiple acts, resulted in psychological harm to the victims, violated a position of trust and confidence, and presented an "ongoing threat to all children's safety."

McDowell appeals (1) the denial of a dispositional departure; (2) the imposition of consecutive statutory-maximum sentences; and (3) the conditions imposed on his release.

McDowell pleaded guilty to two counts of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (1988). Because he has a previous conviction for a sex crime within the past 15 years, the sentence is presumptively executed. Minn. Stat. § 609.346 (1988) (repealed and recodified at 609.109). The court may stay the execution of the sentence only if it finds that the offender is accepted by and can respond to treatment at a long-term inpatient program that exclusively treats sex offenders. Id. Despite this presumption, McDowell contends that the district court erred by refusing to depart dispositionally and order treatment and workhouse time.

The decision to depart in sentencing rests within the district court's discretion, and we will not reverse that decision absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Only in a rare case will the reviewing court reverse a district court's imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

The district court was not obligated to accept McDowell's psychologist's opinion that McDowell was amenable to treatment, particularly when the presentence report contained an opposing evaluation. The district court acted well within its discretion in making a credibility determination that the state's psychologist presented a more persuasive analysis. It is also within the court's discretion to consider that McDowell was already on probation for first-degree criminal sexual conduct when he committed the current offense. The district court did not abuse its discretion in finding the state's psychologist more persuasive, applying the presumptive disposition, and refusing to grant McDowell a dispositional departure.

McDowell challenges the district court's imposition of a 50-year sentence on two grounds. First, he argues that the court impermissibly imposed consecutive sentences, and, second, that the upward durational departure is not warranted by the facts underlying the conviction.

We disagree with McDowell's contention that consecutive sentences are impermissible. When multiple victims are involved, the district court may impose one sentence for each victim so long as the multiple sentences do not unfairly exaggerate the criminality of the defendant's conduct. State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999). The decision to impose a consecutive sentence for each victim is permissive and does not constitute a departure. Minn. Sent. Guidelines II.F. Provided the sentence is not disproportionate to the offense, we will not disturb the district court's discretion. State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998). Because McDowell's criminal sexual conduct involved two separate victims, we find no error in ordering the sentences be served consecutively. Further, given our durational modification, consecutive sentencing does not result in a disproportionate sentence.

Absent circumstances indicating a departure is warranted, the district court should impose the presumptive sentence. Givens, 544 N.W.2d at 776. "Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the Sentencing Guidelines maximum presumptive sentence duration." State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988). Severe aggravating factors, however, may justify a sentence greater than double the presumptive sentence. Id.; Rairdon v. State, 557 N.W.2d 318, 327 (Minn. 1996).

The distinction between "aggravating" and "severe aggravating" circumstances is based on an assessment of "collective collegial experience in reviewing a large number of criminal appeals." State v. Norton, 328 N.W.2d 142, 146 (Minn. 1982). Although there is no "bright-line rule" to mark this boundary, "circumstances warranting a greater-than-double departure are extremely rare." State v. Spain, 590 N.W.2d 85, 89 (Minn. 1999) (citation omitted); Perkins v. State, 559 N.W.2d 678, 692 (Minn. 1997). Written departure reports greatly assist appellate review of sentencing departures. See Perkins, 559 N.W.2d at 691 (referencing Minn. Sent. Guidelines II.D. requirement of written findings setting forth reasons for departure). But, when reasons for the departure have been orally stated, the reviewing court will "examine the record to determine if the reasons given justify the departure." Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

McDowell's presumptive sentence for each offense is the statutory minimum of three years, or 36 months. Minn. Stat. § 609.109, subd. 2; Minn. Sent. Guidelines II.E. (explaining when mandatory-minimum-sentencing statute displaces presumptive guidelines sentence). Because McDowell's convictions involved two victims, the permissible consecutive sentence results in a presumptive sentence that is twice the statutory minimum, or 72 months (six years). The district court imposed the statutory maximum of 25 years for each count for a total of 600 monthsgreater than eight times the presumptive sentence.

The district court orally listed the factors for the durational departure: the children's mental and emotional trauma, the commission of multiple acts, the abuse of trust and confidence, and the threat to "all children" if McDowell were not incarcerated. McDowell argues that none of these reasons constitutes an aggravating factor that would justify an upward departure. We disagree. Abuse of a trust relationship justifies imposing a sentence greater than the guidelines. Minn. Sent. Guidelines II.B.d.; State v. Skinner, 540 N.W.2d 648, 654 (Minn. App. 1990). In addition, the ongoing nature of the abuse also justifies departure. Minn. Sent. Guidelines II.B.a.; Kilcoyne v. State, 344 N.W.2d 394, 397 (Minn. 1984).

To provide a basis for a greater-than-double departure, however, McDowell's conduct must involve severe aggravating factors. Glaraton, 425 N.W.2d at 834; Rairdon, 557 N.W.2d at 327. McDowell's violation of trust and repeated sexual misconduct (estimated to be three times with one victim and five with the other) do not constitute the severe aggravating circumstances that have justified greater-than-double departures. Cf. Perkins, 559 N.W.2d at 692 (particular cruelty including death threats, asphyxiating victim causing loss of consciousness, and sexually assaulting victim when defendant knew of his full-blown HIV infection); Rairdon, 557 N.W.2d at 327 (multiple forms of habitual sexual abuse, findings of particular victim cruelty and vulnerability, abuse ended when victim resisted and was murdered); Glaraton, 425 N.W.2d at 835 (severe psychological trauma resulting from gratuitous physical violence, permanent physical injury, death threats, and multifaceted sexual assaults); State v. Butterfield, 555 N.W.2d 526, 531-32 (Minn. App. 1996) (multiple types of penetration repeated 12 to 15 times over two-hour period while victim lay unclothed on ground in 45-degree weather), review denied (Minn. Dec. 17, 1996).

Because severe aggravating circumstances are not present, a greater-than-double departure is not justified. See State v. Stirens, 506 N.W.2d 302, 304-05 (Minn. 1993) (in reducing sentence, supreme court stated, "[w]e have never approved an eight-fold departure"); State v. Weaver, 474 N.W.2d 341, 343 (Minn. 1991) (only rare cases justify greater-than-double durational departure). We modify McDowell's sentence from 600 months to twice the 72-month presumptive sentence, a total of 144 months. See Minn. Stat. § 244.11, subd. 2(b) (1998) (reviewing court may modify sentence if unreasonable or inappropriate).

Finally, McDowell argues that the district court abused its discretion by conditioning release on the restriction that McDowell is "never to have any contact with children again." The conditions for release are at this point hypothetical rather than justiciable. See State v. Murphy, 545 N.W.2d 909, 917 (Minn. 1996) (holding that challenge to release conditions was premature because defendant was not eligible for release for several years). Equally significant, it is the Commissioner of Corrections who has the authority to impose terms of conditional or supervised release. See Minn. Stat. § 609.12, subd. 1 (1998) (inmate may be released on conditions imposed by the commissioner); see also Johnson v. State, 553 N.W.2d 40, 44 (Minn. 1996) (terms of supervised release controlled by Minnesota Department of Corrections).