Tammy Jo Hofbauer, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-02-2098

 

 

Tammy Jo Hofbauer,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed June 17, 2003

Affirmed
Forsberg, Judge*

 

Olmsted County District Court

File No. C5023815

 

Bradford Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN  55105 (for appellant)

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, Courthouse, 151 Fourth St. SE, Rochester, MN  55904 (for respondent)

 

            Considered and decided by Willis, Presiding Judge, Huspeni, Judge,* and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            Appellant Tammy Jo Hofbauer challenges the district court's denial of her postconviction petition and seeks resentencing, arguing that the court incorrectly calculated her criminal history score and that it abused its discretion in failing to depart downward.  Because appellant was properly sentenced and the court did not abuse its discretion in sentencing her to the presumptive sentence, we affirm.

D E C I S I O N

            On November 30, 2000, officers executed a search warrant on appellant's residence where they found evidence of a suspected methamphetamine laboratory.  In appellant's bedroom, which she shared with Toby Bruce, the officers discovered a coffee grinder with ephedrine residue, a Tupperware container with methamphetamine residue, and a scale with methamphetamine residue.  The officers also found methamphetamine, Coleman fuel tanks, alcohol, lithium batteries, ground-up ephedrine tablets, used coffee filters with methamphetamine residue, a bucket of liquid chemicals, drug paraphernalia, plastic bottles with drug residue, and torches.  A search of appellant revealed a methamphetamine pipe in her pocket.

            Appellant was convicted of attempted controlled substance crime in the first degree and conspiracy to commit controlled substance crime in the first degree in violation of Minn. Stat. §§ 152.021, subd. 2, 152.096, subd. 1 (2000).  Appellant pleaded guilty and was sentenced to 93 months, the least presumptive sentence for a person with a criminal history score of one. 

I.

            The sentencing court's determination concerning a defendant's criminal history score will not be reversed absent an abuse of discretion.  See Bolstad v. State, 439 N.W.2d 50, 53 (Minn. App. 1989).  An offender's criminal history score is calculated by assigning points for prior convictions according to the severity level of the offense.  Minn. Sent. Guidelines II.B.1.a.  Appellant had two prior felony convictions.  Her criminal history score included 1.0 for possession of stolen property and .5 for wrongfully obtaining assistance; her criminal history score was rounded to 1.0.[1] 

            Appellant argues that her prior felony convictions for receiving stolen property and for wrongfully obtaining assistance should have been classified as gross misdemeanors and not felonies for purposes of her criminal history score.  In both cases, appellant received a stay of imposition and was placed on probation. 

            Appellant relies on a combination of Minn. Stat. § 609.135, subd. 2(c) (2000) and Minn. Sent. Guidelines II.B.1.d. to support her argument that her probationary period should dictate the classification of the criminal conduct.  She argues that because her probationary period was less than two years,[2] her conviction resulted in a gross misdemeanor sentence.  Minn. Stat. § 609.135, subd. 2(c) (gross misdemeanor conviction stay shall not be for more than two years).  Appellant then contends that under the sentencing guidelines, when a felony conviction results in a misdemeanor or gross misdemeanor sentence, the conviction shall be counted as a misdemeanor or gross misdemeanor for purposes of calculating a defendant's criminal history score.  Minn. Sent. Guidelines II.B.1.d.  We disagree. 

            In State v. Clipper, 429 N.W.2d 698, 701 (Minn. App. 1988), this court held that the sentencing guidelines and not Minn. Stat. § 609.13 dictate how points are allotted for criminal history scores.  The guidelines recognize that the

classification of criminal conduct as a felony, misdemeanor, or gross misdemeanor is determined, legally, by the sentence given rather than the conviction offense.

 

Minn. Sent. Guidelines cmt. II.B.104.  However, appellant was given stays of imposition of sentence on both convictions.  By definition, a stay of imposition has no sentence imposed; under the guidelines, a stay of imposition is treated as a conviction for purposes of computing a criminal history score.  Minn. Sent. Guidelines II.B.1; State v. Strom, 430 N.W.2d 860, 864 (Minn. App. 1988).  Under Minn. Sent. Guidelines II.B.1, "the offender is assigned a particular weight * * * for every felony conviction for which a stay of imposition of sentence was given * * * ."  The sentencing guidelines do not make an exception for probation.  As the state points out, there is no definition of felony, statutory or otherwise, that defines a felony as a crime with a period of probation of more than two years.  Cf. Minn. Stat. § 609.135, subd. 2(a) (2000) (providing maximum period of four years, or statutory maximum sentence if greater, for felony probation).

            Moreover, the sentencing court does not look at the probationary period to determine a criminal history score.  In State v. Dyer, 438 N.W.2d 716, 720 (Minn. App. 1989), review denied (Minn. June 9, 1989), this court specifically noted that "[t]he length of the probationary period does not change the nature of the conviction."  The district court did not err in determining appellant's criminal history score.

II.

            The decision to depart from the sentencing guidelines rests within the district 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).  Guideline sentences are presumed to be appropriate for every case.  Minn. Sent. Guidelines II.D.  Therefore, only in a "rare" case will a reviewing court reverse a district court's imposition of the presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Only where substantial and compelling mitigating factors are present may the district court depart downward from the presumptive sentence.  Id.

            Appellant argues that she played a minor role in the crime and because mitigating factors were present, the district court abused its discretion in failing to grant her motion for a downward departure.  The guidelines provide a nonexclusive list of factors that may be used to mitigate a sentence.  Minn. Sent. Guidelines II.D.2.a; State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  The presence of a mitigating factor does not automatically require a downward departure.  The sentences provided in the guidelines are presumed to be appropriate and the sentencing court "shall utilize the presumptive sentence * * * unless the individual case involves substantial and compelling circumstances."  Minnesota Sent. Guidelines II.D; see also II.D.03 cmt. (purposes of guidelines cannot be achieved unless presumptive sentences are applied with high degree of regularity).  Playing a minor role in the commission of an offense is a valid reason for a departure, but it does not mandate a departure.  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (stating that mitigating factor does not obligate court to depart from presumptive sentence).  The presence of this factor alone does not establish that the district court abused its discretion.

            Appellant also argues that she should have received a downward departure in her sentence because the "vast majority of sentences imposed for manufacturing methamphetamine are downward departures."  This argument is without merit.  Appellant fails to consider the number of convictions that involve a plea bargain.  Given the number of factors that bear on sentencing, the sentences imposed in other cases are not persuasive.  The district court imposed the presumptive sentence under the sentencing guidelines and this was not an abuse of discretion. 

            The district court did not abuse its discretion in denying appellant's postconviction petition.

            Affirmed.

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

[1] Appellant argues that the single point for receiving stolen property should have been 0.5 and the state agrees.  The postconviction court concluded that because the district court rounded the 1.5 down to 1.0, appellant was properly given a criminal history score of one point.  We agree and thus do not address the issue here.

[2] Appellant served less than two years' probation for her possession of stolen property conviction, and was placed on two years' probation for her wrongfully obtaining assistance conviction, but actually served longer.