State of Minnesota, Respondent, vs. Ramona R. Dobbins, Appellant.

State of Minnesota, Respondent, vs. Ramona R. Dobbins, Appellant. A05-1373, Court of Appeals Unpublished, May 16, 2006.

This opinion will be unpublished and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

A05-1373

 

State of Minnesota,
Respondent,
 
vs.
 
Ramona R. Dobbins,
Appellant.

 

Filed May 16, 2006

Affirmed

Wright, Judge

 

St. Louis County District Court

File No. K6-04-101100

 

 

John M. Stuart, State Public Defender, G. Tony Atwal, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

 

Alan Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Street, Duluth, MN  55802 (for respondent)

 

 

            Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this sentencing appeal, appellant argues that the district court abused its discretion when it denied her motion for a downward dispositional departure and imposed the 43-month presumptive guidelines sentence for second-degree burglary because her mental impairment and the alternative treatment available to her supported a downward dispositional departure.  Appellant also argues that the sentence is disproportional to the severity of the offense and her criminal history.  We affirm.

FACTS

 

On January 29, 2004, appellant Ramona Dobbins approached 91-year-old John Postudensek at his home and asked him to help her start her car, which was nearby.  While Postudensek was working on the vehicle, Dobbins left for a period of time.  After approximately 20 minutes, Postudensek began walking back to his residence and saw Dobbins walking toward him with a battery charger.  When Postudensek returned home, he discovered that his wallet containing approximately $49 in cash, along with money from his dresser and his battery charger, were missing from his residence.  The following day, when Postudensek reported the incident to police, he advised that he suspected Dobbins had taken the items while he was working on her vehicle. 

Police investigated the matter and charged Dobbins with second-degree burglary, a violation of Minn. Stat. § 609.582, subd. 2(a) (2002).  Dobbins subsequently pleaded guilty to the charged offense.  Dobbins moved for a downward dispositional departure from the presumptive guidelines sentence, citing her mental impairment and the opportunity to participate in a mental-health program if a probationary sentence were imposed.  The district court denied the motion and sentenced Dobbins to the presumptive guidelines sentence of 43 months' imprisonment.  This appeal followed. 

D E C I S I O N

 

An appellate court "may review the sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court."  Minn. Stat. § 244.11, subd. 2(b) (2004).  The decision whether to depart from the sentencing guidelines rests within the district court's discretion, and we will not disturb the district court's decision "absent a clear abuse of that discretion."  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  The district court's decision to impose the presumptive guidelines sentence rarely will be reversed on appeal.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). 

I.

Dobbins argues that the district court abused its discretion in denying her motion for a downward dispositional departure because she suffers from a mental impairment, mental-health treatment was available to her through an alternative placement, and she expressed a strong desire to rehabilitate herself.  In support of her argument, Dobbins relies on the presentence investigation report (PSI) and the psychological evaluation, which establish a history of mental-health issues. 

Under the Minnesota Sentencing Guidelines, the district court must order the presumptive guidelines sentence unless "substantial[] and compelling circumstances" warrant a downward departure.  Minn. Sent. Guidelines II.D.  A district court may depart if "[t]he offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed."  Minn. Sent. Guidelines II.D.2(a)(3).  The district court also may depart from the presumptive sentence when an alternative placement exists for an offender with "serious and persistent mental illness."  Minn. Sent. Guidelines II.D.2(a)(6). 

             When considering a dispositional departure, the district court "can focus more on the defendant as an individual and on whether the presumptive sentence would be best for [the defendant] and for society."  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).  The district court may impose a downward dispositional departure and place a defendant on probation if the defendant is particularly amenable to probation or if mitigating circumstances regarding the offense are present.  State v. Donnay, 600 N.W.2d 471, 473-74 (Minn. App. 1999), review denied (Minn. Nov. 17, 1999).

Typically, the factors relevant to the district court in deciding whether to depart downward dispositionally are the defendant's age, prior record, remorse, cooperation, attitude while in court, and support from family or friends.  See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (holding that stay of execution of presumptive sentence may be justified when these factors indicate amenability to treatment in probationary setting).  But even if the district court is presented with evidence of a defendant's mental impairment or amenability to probation, the district court is not required to grant a downward dispositional departure.  See State v. Wilson, 539 N.W.2d 241, 247 (Minn. 1995) (affirming consecutive sentences because defendant failed to establish extreme impairment or that his mental condition deprived him of control over his actions); State v. Evenson, 554 N.W.2d 409, 412-13 (Minn. App. 1996) (holding that district court did not abuse its discretion in deciding against downward departure because even if defendant were amenable to treatment, that did not dictate result), review denied (Minn. Oct. 29, 1996); State v. Stephani, 369 N.W.2d 540, 550 (Minn. App. 1985) (affirming upward departure in sentencing because evidence of mental impairment did not outweigh aggravating factors), review denied (Minn. Aug. 20, 1985). 

The Minnesota Supreme Court has determined that "only extreme mental impairment justifies a mitigation of sentence."  Wilson, 539 N.W.2d at 247.  And only rarely will an appellate court reduce a sentence because of a defendant's mental impairment.  See State v. Hennum, 441 N.W.2d 793, 801 (Minn. 1989) (reducing presumptive guidelines sentence based on evidence of battered-woman syndrome and severe physical and mental abuse that victim had inflicted on defendant); State v. Wall, 343 N.W.2d 22, 25-26 (Minn. 1984) (reducing upward departure in sentence to presumptive guidelines sentence because evidence of mental impairment was present and could not be ignored).  As long as the record demonstrates that the district court considered all of the information presented before making its sentencing decision, we will not interfere with the district court's exercise of discretion.  State v. Van Ruler, 378 N.W.2d 77, 80-81 (Minn. App. 1985). 

Here, the record establishes that, before imposing the sentence, the district court carefully considered the evidence and arguments presented regarding Dobbins's mental health and her request for treatment.  The district court reviewed a psychological evaluation and the PSI report.  These documents indicated that Dobbins had been diagnosed with bipolar disorder and antisocial personality disorder by a psychiatrist and that Dobbins was taking medication for the disorder.  The district court also considered Dobbins's testimony in support of her motion. 

The district court, however, was not persuaded that the evidence justified a downward dispositional departure.  Specifically, the district court stated:

I've had a chance to look at [the psychological evaluation], and I can't say that I necessarily take issue with anything in the report.  It deals more with your employability, but it does also talk about the psychological struggles that you have had, but there is nothing in the report that tells me thatthat in any way suggests why you're continually perpetrating offenses against many times vulnerable people.

 

             . . . . 

 

[Y]ou have regularly [taken] advantage of people and stolen from them.  And maybe it is somewhat related to your mental illness, although I don't think there is anything in [the] report that would suggest that whatever you do is related to your criminal conduct or whatever you have in any way causes you to steal from people.  And you choose to do it again and again and again while you have been having these charges pending, and I guess I'm just not willing to subject the community to that and give you that chance that you have asked for.

 

As the district court noted, the psychological evaluation did not address how Dobbins's mental health affects her criminal behavior or choice of victim.  And Dobbins presented no evidence that the Trog factorsher age, criminal record, remorse, cooperation, attitude, or support systemmake her particularly amenable to treatment.  Indeed, there is no evidence that any of these factors supports a determination that Dobbins is amenable to probation.  Rather, Dobbins relies heavily on her testimony in support of her contention that she is amenable to treatment.  But her testimony is contradicted by the PSI report, which concluded that Dobbins was not amenable to probation and recommended the presumptive guidelines sentence.  Moreover, even if the district court credited the evidence of Dobbins's mental impairment and amenability to treatment, the district court would not be compelled to grant the motion for a downward dispositional departure.  Van Ruler, 378 N.W.2d at 80-81.  The district court is required only to consider all the information presented.  Id.

Mindful of Dobbins's circumstances, the district court acknowledged that she was "struggling" with mental health, poverty, and family issues, and stated: "[T]hat's what makes this so difficult."  In its careful consideration, however, the district court determined that, when weighed against public-safety concerns, Dobbins's mental health did not compel a downward dispositional departure.  Based on this analysis, the district court determined that the presumptive guidelines sentence was appropriate.  In doing so, the district court did not abuse its discretion in denying the motion for a downward dispositional departure. 

II.

Dobbins next contends that, due to the nature of the offense and her criminal history, we should vacate the executed sentence of 43 months' imprisonment and modify it to a sentence more "proportional to the severity of the crime for which the sentence is imposed and [her] criminal history."  Minn. Sent. Guidelines II.D. 

A review of the motion for a downward departure and the sentencing transcript establishes that Dobbins failed to present her disproportionality argument to the district court.  Arguments that were not raised before the district court ordinarily are waived.  Perkins v. State, 559 N.W.2d 678, 691 (Minn. 1997). 

In deciding whether to grant a durational departure, the district court considers "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. Back, 341 N.W.2d 273, 276 (Minn. 1983).  "[G]enerally it is proper for the sentencing court to consider the course of conduct underlying the charge for which the defendant is being sentenced."  Id. 

Dobbins argues that the district court failed to consider the mitigating fact that the conduct underlying the burglary offense was only a misdemeanor-level theft.  See Minn. Stat. § 609.52, subd. 3(5) (2002) (providing that theft of property or services valued at $250 or less is misdemeanor); Herme v. State, 384 N.W.2d 205, 208-09 (Minn. App. 1986) (holding that defendant's claim that his actions were more like a thief than a fence of stolen goods did not constitute a substantial and compelling reason for downward departure), review denied (Minn. May 22, 1986); Back, 341 N.W.2d at 276-77 (holding that despite defendant's argument that underlying offense in felony murder was only property crime, circumstances of crime justified upward durational departure).  To the contrary, the record establishes that the district court considered the conduct underlying the burglary when imposing sentence and determined that the facts support imposing the presumptive guidelines sentence.  The district court specifically noted that the victim in this case is an elderly man and Dobbins's criminal history shows that she has victimized the elderly on numerous occasions and that her behavior makes her "very, very dangerous to the community."  See Minn. Sent. Guidelines II.D.2(b)(1) (providing that vulnerability of victim due to age is an aggravating factor that district court may consider as reason to depart); State v. Norton, 328 N.W.2d 142, 146 (Minn. 1982) (noting that under sentencing guidelines, vulnerability of victim due to age is aggravating factor).

Dobbins relies on State v. Curtiss, 353 N.W.2d 262 (Minn. App. 1984), in support of her argument that the misdemeanor nature of the burglary is a ground for downward departure.  Her reliance on Curtiss is misplaced.  We remanded for resentencing in Curtiss because the district court found no reasons to depart and failed to give any consideration to the legitimate reasons supporting departure.  Id. at 263.  We noted that we were not interfering with the district court's exercise of its discretion.  Id. at 264.  Rather, we were remanding because the district court had failed to exercise its discretion by considering both the valid reasons for departure and those against departure.  Id.  Unlike the district court in Curtiss, the district court exercised its discretion here.  It properly addressed the reasons for departure that Dobbins presentedher mental impairment and the availability of an alternative placementalong with the reasons for imposing the presumptive guidelines sentence. 

Dobbins also relies on our statement in State v. Herrmann that, when deciding whether to depart durationally, the district court "should not analyze the egregiousness of the act in and of itself, but must rather analyze the act as compared with other acts constituting the same offense."  479 N.W.2d 724, 728 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).  We held in Herrmann that the district court's reliance on the extent of the victim's injuries to justify an upward departure was improper because, with "great bodily harm" as an element of the offense, the seriousness of the victim's injuries was already factored into the presumptive sentence.  Id. at 729-30.  Thus, Herrmann also is inapposite here because the district court did not rely on elements of the burglary offense as a reason to depart from the presumptive sentence.  Indeed, the district court imposed the presumptive sentence because it did not find substantial and compelling reasons to depart.   

Dobbins also argues that the sentence imposed is disproportional to her     criminal-history score because two of her prior convictions were almost 15 years old and part of the same behavioral incident and the others were nonviolent, theft-related convictions.  But Dobbins does not challenge her criminal-history score under the sentencing guidelines.  And, in addition to the two 1990 offenses, Dobbins's criminal history includes theft by swindle in 2000, state lottery fraud in 1999, wrongfully obtaining public assistance in 1998, theft by swindle in 1997, and escape in 1994.  Our review of the record establishes that the district court properly considered Dobbins's criminal history, noting that Dobbins had been convicted of at least 16 theft-related offenses and had committed new offenses while the instant case was pending before the district court. 

After weighing the aggravating and mitigating factors, the district court imposed the presumptive guidelines sentence because public safety warranted this disposition.  In doing so, the district court's exercise of its discretion was sound.

            Affirmed.