State of Minnesota v. Gary Michael Veesenmeyer-Trojanowski ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1680
State of Minnesota,
Respondent,
vs.
Gary Michael Veesenmeyer-Trojanowski,
Appellant
Filed July 7, 2014
Affirmed
Worke, Judge
Ramsey County District Court
File No. 62-CR-13-290
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Chelsie M. Willett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Worke, Judge; and Stauber,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges the district court’s denial of his motion for a dispositional
departure, arguing that the district court failed to consider mitigating factors before
denying the motion and imposing the presumptive sentence. We affirm.
DECISION
Appellant Gary Michael Veesenmeyer-Trojanowski entered a Norgaard plea1 to
first-degree assault (great bodily harm), claiming that he could not recall assaulting his
girlfriend, L.H., because he was intoxicated. The district court denied Veesenmeyer-
Trojanowski’s motion for a probationary sentence and imposed the presumptive sentence
of 110 months in prison. Veesenmeyer-Trojanowski argues that the district court failed
to consider factors that weigh in favor of probation.
The district court must order the presumptive sentence unless “identifiable,
substantial, and compelling circumstances” justify a downward departure. State v.
Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013) (quotation omitted), review denied
(Minn. Sept. 17, 2013). We review a district court’s decision to deny a departure from
the presumptive sentence for an abuse of discretion. State v. Geller, 665 N.W.2d 514,
516 (Minn. 2003). We will reverse imposition of the presumptive sentence only in rare
cases. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); State v. Delk, 781 N.W.2d 426,
428 (Minn. App. 2010) (stating that this court will modify a presumptive sentence only in
a “rare case” with “compelling circumstances”), review denied (Minn. July 20, 2010).
When a district court contemplates the appropriateness of a probationary sentence
it considers the defendant as an individual and “whether the presumptive sentence would
be best for him and for society.” State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).
1
In a Norgaard plea, a “defendant asserts an absence of memory on the essential
elements of the offense but pleads guilty because the record establishes, and the
defendant reasonably believes, that the state has sufficient evidence to obtain a
conviction.” Williams v. State, 760 N.W.2d 8, 12 (Minn. App. 2009), review denied
(Minn. Apr. 21, 2009).
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Factors that may show that a defendant is amenable to probation include: “the
defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court,
and the support of friends and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn.
1982). But amenability to probation is not dispositive, and we generally will not reverse
a district court’s decision to deny probation to even an “exceptionally amenable”
defendant. State v. Evenson, 554 N.W.2d 409, 412 (Minn. App. 1996), review denied
(Minn. Oct. 29, 1996). Further, a district court is not required to address the Trog factors
in detail or explain its reasons before imposing the presumptive sentence. State v. Pegel,
795 N.W.2d 251, 254 (Minn. App. 2011); State v. Van Ruler, 378 N.W.2d 77, 80 (Minn.
App. 1985) (stating that the district court is not required to explain its decision to deny a
departure request or its reasons for imposing the presumptive sentence, provided it
considers the factors that weigh in favor of a departure).
Thus, a district court is not obligated to depart from the presumptive sentence even
if mitigating factors are present. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984); see
State v. Jackson, 749 N.W.2d 353, 360 (Minn. 2008) (stating that if mitigating factors are
shown, district court may, but is not required to, depart); State v. Bertsch, 707 N.W.2d
660, 668 (Minn. 2006) (affirming denial of a request for departure despite defendant’s
argument that Trog factors were present); Pegel, 795 N.W.2d at 253-54 (stating that the
mere existence of mitigating factors does not require the district court to place a defendant
on probation). But a district court must “deliberately consider[] circumstances for and
against departure.” State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002), review
denied (Minn. Apr. 16, 2002). We will “not interfere with the [district] court’s exercise
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of discretion, as long as the record shows the [district] court carefully evaluated all the
testimony and information presented before making a determination.” Pegel, 795 N.W.2d
at 255 (quoting Van Ruler, 378 N.W.2d at 80-81). We will remand if the district court
failed to exercise its discretion by not deliberately considering any factors that may
support departure. State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984).
Veesenmeyer-Trojanowski argues that he should have been sentenced to probation
because: (1) he was 24 years old at the time of the offense; (2) he has no prior felonies;
(3) he can succeed in community chemical-dependency and anger-management
programs; (4) he was too intoxicated to recall the incident, but has taken steps to maintain
sobriety; (5) the conduct was less serious than a typical first-degree assault; (6) he was
“profoundly remorseful”; (7) he cooperated throughout the process; and (8) he has
support from his family, friends, and coworkers. But even if these facts would generally
weigh in favor of probation, they do not mandate it. See Wall, 343 N.W.2d at 25 (holding
that mitigating factors do not require departure); see also Bertsch, 707 N.W.2d at 668
(affirming denial of a departure motion despite defendant’s argument that Trog factors
were present). More importantly, Veesenmeyer-Trojanowski’s argument does not
present the entire picture.
It is true that Veesenmeyer-Trojanowski was 24 years old at the time of the
offense and that he has no prior felony convictions. However, a presentence
investigation (PSI) noted that, while no mitigating factors existed, this offense was
aggravated because Veesenmeyer-Trojanowski has two domestic-assault convictions
involving the same victim. The PSI detailed Veesenmeyer-Trojanowski’s conduct in
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those two incidents. During the first assault, he “threw” L.H. around her apartment;
slapped her, causing a cut on her mouth; strangled her, leaving red marks on her neck and
shoulders; and punched her in the eye, causing bruising and swelling. During the second
assault, Veesenmeyer-Trojanowski pushed L.H. to the ground; pushed her into a wall;
grabbed the back of her neck and pretended to push her over a balcony; tackled her into a
wall, cracking the sheetrock; and struck her face numerous times. The prosecutor argued
that Veesenmeyer-Trojanowski’s aggression was “accelerating and increasing to an
extremely dangerous level.” The district court stated: “[T]hat’s what it comes down to
for me in making my decision here. I don’t find that you’re particularly amenable to
probation at this point. But more importantly, I think you’re a public safety risk.”
Veesenmeyer-Trojanowski argues that he is capable of succeeding in community
programs and has taken steps to maintain sobriety. The district court acknowledged
Veesenmeyer-Trojanowski’s success in treating his chemical dependency, but stated:
“[I]t’s not just the drinking problem here, sir. It’s something else. Something that turns
you into a violent person.” And the PSI indicated that Veesenmeyer-Trojanowski had
previously been on probation, but it was revoked when he failed to complete chemical-
dependency and domestic-abuse programming.
Veesenmeyer-Trojanowski also claims that the conduct was less serious than a
typical first-degree assault. But the record shows that Veesenmeyer-Trojanowski
diminishes the severity of his conduct. This is especially true because L.H. is a
vulnerable adult, which the PSI noted aggravated this offense. Veesenmeyer-Trojanowski
repeatedly punched L.H. in the face and kicked her face and ribs. L.H. suffered
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permanent damage to two of her front teeth, had a laceration on her ear, and suffered a
concussion. She had surgery on her mouth that cost thousands of dollars. And she told
the district court in her victim-impact statement that her mouth and appearance are
forever changed. She has to wear false teeth on a retainer, which restricts her ability to
talk and hinders her ability to eat. The district court did not consider this to be a “less
serious” assault when stating:
I was particularly struck by [L.H.’s] statement . . . that ‘the
fact that someone I loved left me on the ground bleeding and
unconscious could say that to me baffles me. And he shows
me he learned nothing from the last time he went through
this.’
....
I don’t think that you’ve come to grips with what it is
about you that causes you to act the way you act towards
people that you supposedly care about. The fact that you
were able to accomplish this. To kick her, knock her teeth
out the way you did. It’s not just the alcohol, it’s something
else.
Veesenmeyer-Trojanowski claims that he was “profoundly remorseful.” But he
stated: “I can’t say sorry. That ain’t going to change anything that’s happened. I go
every day not remembering the incident, but feeling just terribly bad about it.” The
district court did not find his remorse to be genuine, stating: “[S]orry would have been a
good first step. Apologizing to [L.H.] for what happened to her would have been a good
step.”
The record supports Veesenmeyer-Trojanowski’s claims that he cooperated with
the PSI and has a network of support.
Veesenmeyer-Trojanowski argues that the district court abused its discretion by
failing to compare reasons for and against departure before summarily denying the
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motion. Even though the district court is not required to explain its decision to deny a
request for a departure, the record shows that the district court understood its obligation
to consider the circumstances for and against a departure and exercised its discretion in
denying the motion. The district court reviewed all of the materials and arguments
relevant to deciding the issue. The district court stated: “[Y]our attorney’s done a fine
job in making a case to support the motion. . . . But she probably told you that it’s tough
to obtain a departure from the guidelines absent some real significant mitigating factors.”
The district court considered the evidence and arguments and acted within its
discretion when it denied the motion for a downward departure and imposed the
presumptive sentence.
Affirmed.
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