State of Minnesota, Respondent, vs. Daniel D. Ojanen, Appellant.

State of Minnesota, Respondent, vs. Daniel D. Ojanen, Appellant. A05-2198, Court of Appeals Unpublished, January 16, 2007.

This opinion will be unpublished and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

A05-2198

 

State of Minnesota,

Respondent,

 

vs.

 

Daniel D. Ojanen,

Appellant.

 

Filed January 16, 2007 Affirmed Ross, Judge

 

St. Louis County District Court

File Nos. CR-05-116; CR-05-2066

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Melanie Ford, St. Louis County Attorney, Mark S. Rubin, Assistant County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802-1298 (for respondent)

 

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

 

            Considered and decided by Worke, Presiding Judge; Ross, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

This appeal concerns the sentence imposed on appellant Daniel Ojanen, who pleaded guilty after he wrote 64 bad checks and twice sold methamphetamine to a police informant.  On appeal from sentences for theft by false representation and sale of a controlled substance, Ojanen argues that the district court abused its discretion by imposing the presumptive sentences for the offenses without placing on the record its reasons for denying his motion for a dispositional departure.  Because the district court is not required to make on-the-record findings when imposing a presumptive sentence, and the record demonstrates that the district court carefully considered Ojanen's motion and exercised its discretion to deny it, we affirm.

FACTS

In April 2005, Daniel Ojanen sold methamphetamine to a police informant on two occasions.  The state charged him with two counts of a controlled-substance crime in the fourth degree.  As part of a plea agreement, Ojanen pleaded guilty to both counts in exchange for a sentence on only one of the counts.  In July 2005, the state charged Ojanen with theft by false representation for writing numerous checks on insufficient funds and on a closed account during three months in early 2005.  He pleaded guilty to the check-writing offense at the sentencing hearing on the drug convictions.

Ojanen moved for a dispositional departure on the sentences and sought placement at an in-patient treatment center.  The court denied the motion and sentenced Ojanen to the presumptive concurrent sentences of twenty-four months' imprisonment for the controlled-substance offenses, and nineteen months' imprisonment for the theft offense.Ojanen appeals, arguing that the district court abused its discretion by denying his motion because the court failed to provide a detailed explanation for the denial on the record.

D E C I S I O N

The sentences set forth in the Minnesota Sentencing Guidelines are presumed appropriate for the crimes to which they apply.  Minn. Sent. Guidelines II.D.  The district court must impose the presumptive sentence unless substantial and compelling circumstances in an individual case support departing from the guidelines.  Id.; see also id. II.D.2 (listing factors that may support sentencing departure).  A district court has broad discretion in determining whether to impose a sentence that departs from the guidelines, and this court reviews its decision for an abuse of discretion.  State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006).  The supreme court has noted that only a rare case would warrant reversal of a refusal to depart from the guidelines.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

This is not that rare case.  The district court did not abuse its discretion by denying Ojanen's motion. Ojanen's appeal rests on his argument that the district court failed to make specific findings on the record to support imposing the presumptive sentence.  But this argument is not supported by the sentencing guidelines, the rules of criminal procedure, or caselaw.  When a district court departs from the presumptive sentence, the sentencing guidelines require the court to "disclose in writing or on the record the particular substantial and compelling circumstances that make the departure more appropriate than the presumptive sentence." Minn. Sent. Guidelines II.D.  Similarly, the rules of criminal procedure require findings on the record when the court departs from the presumptive sentence for a felony offense.  Minn. R. Crim. P. 27.03, subd. 4(C).  These provisions do not require the district court to make findings on the record explaining why potentially mitigating factors are not substantial and compelling.  This difference reflects the rationale underlying the sentencing guidelines.  The goal of the guidelines is to establish consistent sentencing standards and reduce sentencing disparity.  Minn. Sent. Guidelines I.  Achieving these goals requires courts to impose presumptive sentences "with a high degree of regularity" and to depart infrequently from the guidelines.  Id. cmt. II.D.03.  Because a departure marks a deviation from the presumed appropriate sentence, the district court must make findings that support the court's decision to depart.

The absence of required findings on the record to support imposing a presumptive sentence does not eliminate the district court's obligation to consider carefully the merits of a motion to depart from the guidelines.  A district court must weigh the reasons for and against departure and make a deliberate decision.  State v. Mendoza, 638 N.W.2d 480, 484 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002); see also State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984) (noting that record suggested factors for departure that should be deliberately considered).  The district court must demonstrate that an exercise of discretion has occurred.  See Mendoza, 638 N.W.2d at 484 (recognizing district court's sentencing discretion, but remanding for resentencing when record suggested "that such an exercise of discretion may not have occurred").

The record in this case demonstrates that the district court carefully deliberated before reaching its decision.  The district court heard arguments on Ojanen's motion on July 28, 2005.  The hearing continued onAugust 3, and the court noted that, after the last hearing, it had taken the matter under advisement "to spend a little extra time reflecting" on Ojanen's request for a dispositional departure.  Upon imposing the presumptive sentences for each offense, the court explained why it denied Ojanen's motion, stating "[t]his Court, obviously, has had some opportunity, some lengthy opportunity, to reflect upon this matter, in view of the comments of counsel at our last hearing, review of the entire record, and, quite frankly, this Court does not find any substantial and compelling reasons to depart."  Although the district court could have placed a longer explanation on the record, the record demonstrates that the court considered Ojanen's motion and determined that the mitigating factors he asserted were not substantial and compelling and did not justify a dispositional departure.

The record supports the district court's conclusion that this is not the landmark case in which reversal of a presumptive sentence is warranted.  In support of his motion, Ojanen argued that he had acknowledged his drug addiction, he had his parents' support, and he was willing to participate in treatment.  His parents also stated that he would benefit from treatment.  ButOjanen committed the current offenses while on supervised release for a criminal-sexual-conduct offense, he had refused or quit past treatment opportunities, and the presentencing investigation report and his parole officer each recommended that the court impose the presumptive sentence.  Ojanen did not point to substantial and compelling mitigating factors, and the district court did not abuse its discretion by imposing the presumptive sentences for the offenses.

Affirmed.

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