State of Minnesota, Appellant, vs. Gary Allen Preblich, 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This opinion will be unpublished and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

A03-817

 

State of Minnesota,
Appellant,
 
vs.
 
Gary Allen Preblich,
Respondent.

 

Filed December 2, 2003

Reversed and remanded

Minge, Judge Dissenting, Klaphake, Judge

 

Dakota County District Court

File No. K0-02-3949

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Amy A. Schaffer, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)

 

John M. Stuart, State Public Defender, James R. Peterson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant state challenges the respondent's sentence for first-degree (felony) refusal to submit to testing on the grounds that the record does not support the disposition and that the district court disregarded the sentencing guidelines.  Because the district court abused its discretion in disregarding the sentencing guidelines and because the disposition is not supported by the record, we reverse and remand.

FACTS

 

            In November 2002, respondent Gary Preblich was stopped for speeding in Farmington.  Respondent admitted to drinking after the officer observed indicia of intoxication, and when the officer asked respondent to step from his vehicle, he drove off at a high rate of speed through residential neighborhoods to a point outside of town where his vehicle overturned.  Respondent then fled on foot.  Respondent was eventually arrested and taken to the police station where he refused to submit to a blood, breath, or urine test.  This offense was respondent's fourth driving-while-impaired incident in ten years, and he was charged with felony first-degree refusal to submit to testing under Minn. Stat. § 169 A. 24 (2002) and fleeing a police officer in a motor vehicle under Minn. Stat. § 609.487, subd. 3 (2002).  Respondent pleaded guilty to both charges with the understanding from the district court that he would be sentenced to one year in jail, a stayed prison sentence of six years, and probation of ten years.  The state did not concur in this arrangement.[1] 

The record shows that the respondent's criminal history included the following convictions: four 1982 burglaries, a 1982 unauthorized use of a motor vehicle, a 1992 driving after revocation, and a 1992 careless driving.  Within ten years of the current offense, respondent was also convicted of driving while intoxicated (1993); theft (1995); driving after cancellation, fleeing a peace officer in a motor vehicle, and driving while intoxicated (all in 1998); driving after cancellation (1999); and driving while intoxicated (2000). 

Respondent has previously been in treatment.  In 1999, the respondent completed the first phase of the Safe Streets First program for chemical dependency but was expelled from the second phase for use of alcohol and drugs, unexcused absences, and new criminal charges.  In 2000, he successfully completed outpatient treatment at Fairview Ridges.  Two months later, and just after meeting with his probation officer to discuss the use of drugs and alcohol and the conditions of his probation, he was seen at a bar across the street from the probation office drinking beer.  Later that same day, he was arrested and charged with a drinking and driving offense.  In 2001, he violated his probation by consuming alcohol and failing to remain law abiding.  Late in 2001, he completed a treatment program while in custody and, with staff approval, he was discharged from the aftercare portion of that program.  A year later, he committed the current offenses.  After his arrest for the current offenses, appellant was conditionally released, only to violate the terms of his release within two weeks by using cocaine.

Respondent's record gave him a criminal history score of five under the sentencing guidelines.  This included the four burglaries committed in 1982, the 1995 burglary, and fleeing police in a motor vehicle in 1998.  The older crimes were included because the sentence for those convictions was still being served within the 15-year look-back period.  See Minn. Sent. Guidelines II.B.1.e.  The criminal history score did not include the DWI crimes used to enhance the current charge into a felony; they may not be used in computing this score.  Id. II.B.6.

The presentence investigation (PSI) was conducted by Eric Ellestad who has 32 years of experience with Dakota County Community Corrections and the Minnesota Department of Corrections.  Ellestad testified at the sentencing hearing that the respondent was not amenable to probation because while he claimed to be willing to comply with the probation requirements, he had failed to do so previously, had failed to maintain sobriety in many instances, and had previously committed criminal acts while on probation.  Based on his presentence investigation, Ellestad recommended to the court an executed sentence of 66 months on count one of first-degree refusal to submit to testing.  This is the presumptive sentence under the sentencing guidelines. 

Respondent's probation officer also appeared at the sentencing hearing and recommended that the court follow the sentencing guidelines and give respondent an executed sentence.  The probation officer testified to 29 years of experience with Dakota County Community Corrections and had supervised respondent from 2000 until the current offense.  Her recommendation for an executed sentence differed from her statement at the plea hearing.  At that time, she recommended probation with home monitoring because she felt there was a higher level of supervision pursuant to court referrals as compared to supervision after release from prison.  She explained to the court at the sentencing hearing that she changed her recommendation because she had a better understanding of the new DWI laws. 

Respondent submitted a sentencing memorandum to the court.  It provided information about his role as custodial parent for a daughter and supportive statements from a friend and his parents, with whom he lived.  The court sentenced respondent to 66 months in prison for count one, and one year and one day for count two, but stayed execution of the sentences and placed the respondent on probation for ten years with numerous conditions.  The conditions included 365 days of jail time, at least 30 to be served consecutively, but with a furlough from jail for intensive inpatient chemical dependency treatment, with the remaining jail time to be served on electronic home monitoring.  After the inpatient program, the sentence required respondent to successfully complete the aftercare program.  The sentence required that respondent submit to 30 days of electronic home monitoring each year of probation beginning in 2004, required that respondent remain drug and alcohol free, submit to random drug testing, attend weekly Alcoholics Anonymous meetings, only drive with a valid license and with insurance, follow all rules of Dakota County Community Corrections, and pay certain fines.  In imposing this sentence the court indicated respondent had expressed remorse, was cooperative, and was amenable to probation.  The state appeals this sentence. 

D E C I S I O N

            The issue before us is whether the district court abused its discretion by departing downward from the guidelines in not imposing an executed sentence.  "A district court's decision to depart from the sentencing guidelines is within that court's discretion, and will not be disturbed absent an abuse of discretion."  State v. Misquadace, 644 N.W.2d 65, 68 (Minn. 2002).  Further, appellate courts do not generally interfere with a district court's decision to depart downward.  State v. Donnay, 600 N.W.2d 471, 473 (Minn. App. 1999), review denied (Minn. Nov. 17, 1999). However, when a district court departs from the sentencing guidelines, it must articulate substantial and compelling reasons justifying the departure.  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).  When exercising its discretion, the court must consider that the guidelines were created to ensure that punishments are proportional to the severity of the offense and the offender's criminal history.  State v. Spain, 590 N.W.2d 85, 89 (Minn. 1999); see Minn. Stat.           § 244.09, subd. 5(2) (2002).  Section II.D of the guidelines requires the judge to "provide written reasons which specify [these] circumstances, and which demonstrate why the sentence selected . . . is more appropriate, reasonable, or equitable than the presumptive sentence."  Minn. Sent. Guidelines II.D.

Felony driving while impaired or test refusal is punishable by up to seven years imprisonment.  Minn. Stat. § 169 A. 24, subd. 2 (2002).  The statutes "mandate" a sentence of no less than several years imprisonment.  Minn. Stat. § 169 A. 276, subd. 1 (2002).  But, the district court may stay execution of this "mandatory" minimum sentence if three conditions are met.  First, the defendant must serve "a minimum of 180 days of incarceration, at least 30 days of which must be served consecutively in a local correctional facility" or participate in a program of home detention or intensive supervision under Minn. Stat. § 169.74 (2002).  Minn. Stat. §§ 169 A. 275, subd. 3, .276, subd. 2 (2002).  Second, the defendant must submit to the level of care recommended in the chemical use assessment conducted under Minn. Stat. § 169 A. 70 (2002).  Minn. Stat.    §§ 169 A. 275, subd. 5 (2002), .276, subd. 2.  Third, if electronic monitoring equipment is available, the court must ensure that the defendant is in an electronic home monitoring program for a minimum of 30 consecutive days during each year of probation.  Minn. Stat. §§ 169 A. 276, subd. 2, .277 (2002).  The sentencing guidelines provide increasingly severe sentences, depending upon the criminal history of the accused.  Minn. Sent. Guidelines IV.  The presumptive sentence ranges from 36 months stayed for no criminal history, to an executed sentence of 72 months for a criminal history score of six or more.  Id.

In this case, the district court complied with most of the statutory requirements for the minimum sentence.  It gave respondent 365 days in jail, required that 30 days of the jail time be served consecutively, and after inpatient treatment, it effectively allowed respondent to serve any remaining time on electronic home monitoring.   But, it does not appear that the chemical use assessment required by Minn. Stat. § 169 A. 70 was performed.  Without a presentence assessment, it is impossible to determine whether respondent was ordered to submit to the level of care recommended in the assessment report. 

But, since appellant has a criminal history score of five, the district court departed from the sentencing guidelines in one significant respect.  The guidelines grid provides a presumptive executed sentence of 66 months.  The question here is whether the district court's records and its findings meet the "substantial" and "compelling" requirements and justify a departure from an executed sentence.  Amenability to probation is a prime consideration.  See State v. Wright, 310 N.W.2d 461 (Minn. 1981); Donnay, 600 N.W.2d at 474 (stating that "amenability to probation is a sufficient basis for a downward dispositional departure.").  In State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982), the Minnesota Supreme Court established that various factors such as age, prior record, remorse, cooperation, attitude while in court, and the support of friends and/or family are also relevant to a court's determination of amenability to probation.  In State v. Carter, 424 N.W.2d 821 (Minn. App. 1988), we found that the district court's downward departure from the guidelines in the form of a stay of execution was an abuse of discretion.  There, the district court departed from the presumptive sentence based on its analysis of the defendant's drinking problem and its disagreement with the guidelines.  Id. at 822.  This court found that those reasons alone were inadequate and that the record did not support a finding of amenability to probation.  Id. at 825.  Carter had five criminal history points from previous convictions, was not an outstanding citizen, had only completed one of five treatment programs in which he participated, and had two DWI convictions.  Id. at 824-25. 

Here, the district court made a specific finding that the respondent was amenable to probation, showed remorse, and accepted responsibility for his actions.  Its assessment of the respondent's remorse and sincerity should be given deference.  State v. Sejnoha, 512 N.W.2d 597, 600 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994).   The district court further noted respondent's job and responsibilities for his daughter.  The court placed great weight on the fact that when the respondent's plea was first considered, his probation officer recommended probation because she believed that with the right chemical dependency program, the respondent could succeed in rehabilitation and because a staff person in respondent's most recent treatment program had told her that respondent was a "prime candidate" for their in-patient program. 

To be sure, these are considerations in sentencing decisions.  But, in evaluating the record, we cannot ignore the other evidence.  The evidence relied upon by the district court is only substantial and compelling if it remains persuasive in the light of such other evidence.  The record here is replete with evidence that respondent is not amenable to probation.  He was discharged from the second phase of the Safe Streets First program for testing positive for drugs in 1999.  His probation officer testified that he often did not come in for his appointments.  Further, she testified that on December 8, 2000, she found respondent at a bar drinking his second beer only one hour after she met with him to discuss his drug and alcohol abuse. He was arrested on that same day for drinking and driving.  While on probation for charges in 2001, respondent violated his probation terms by being charged with nine new counts, including driving under the influence.  Following his arrest for the current crimes, his conditional release was terminated within two weeks for using cocaine.  The PSI found that respondent represents a medium-to-high risk of committing further offenses within the coming year.  Two of his numerous drinking and driving offenses involved fleeing from the police, which the PSI found represented further danger to the public. 

After extensive investigations, the officer who prepared the PSI concluded "he was unable to make any determination that [respondent] meets any criteria for being amenable, much less particularly amenable [to treatment]."  He added that respondent "has not had any success in maintaining sobriety through treatment despite intensive supervision efforts and probably the most intensive type of control the court has in a community is conditional release, and he was unable to make it past two weeks."  Even the probation officer who said at the plea hearing that she would recommend probation changed her mind and recommended an executed guideline sentence at the sentencing hearing. 

Respondent has five criminal history points, has tried several treatment programs with little, if any, long-term success, and as the district court noted "is no shining light."  The great weight of the evidence shows that respondent has failed at probation many times, and while the respondent claims he is ready and willing to cooperate, he has made similar claims in the past that only resulted in further criminal acts during his probation.  Although we recognize that the district court must have substantial discretion to depart downward from inappropriate guideline sentences, this record does not support the departure.  Departing from the presumed executed sentence is an abuse of discretion on this record. 

Four other aspects of this case and the district court's sentencing statements were considered by this court.  First, felony DWI sentencing is a subject of recent significant legislative activity.  The Minnesota legislature enacted the new felony drinking and driving statutes to remove risky drivers from public roads because of the costly effects of drunk driving, the high rate of chronic drunk driving, and the success other states had experienced with similar statutes.  Paul Scoggin, Prosecuting the Felony DWI at 1, in DWI 2002: Emerging Issues (MILE 2002).  The legislature determined that individuals who commit a certain number of driving-while-intoxicated offenses should be incarcerated for longer periods of time to protect the public by keeping them off the roads.  Reports of horrific accidents caused by repeat DWI offenders are commonplace.  Although the sentence in this case provides for extended probation, the sentence only requires 30 days of actual jail time.  This is almost oblivious to the statutory changes. 

Second, we note that the district court was skeptical that the programming for incarcerated felons was as effective as the resources available to those on probation, and that incarceration would be a tremendous financial burden on the state.  These are not inconsequential considerations.  But, it is awkward to have each district court judge addressing these larger budget and resource allocation concerns on a case-by-case basis.  The Guidelines Commission adopted the dispositional aspect of the guidelines after careful consideration of the scarce correctional resources and determined that the more serious offenders are to receive prison resources and the less serious offenders are to receive the community resources.  Minn. Sent. Guidelines cmt. II.C.01.  The commission is charged with the responsibility for monitoring and evaluating the allocation of these resources on an ongoing basis.  Id.  The purposes of the sentencing guidelines will not be served if the trial courts generally fail to apply the presumptive sentences absent substantial and compelling reasons for a departure.  Schmit, 601 N.W.2d at 898. 

Third, the district court rejected the presumptive sentence on the ground that the guidelines exceed legislative authority because they consider crimes committed in the past 15 years when assessing criminal history scores.  The court determined that this conflicted with the ten-year look-back used in the DWI statutes.  It further disagreed with the guidelines' calculation of a criminal history score based on the entire record of criminal convictions when the DWI statute only looks at prior DWI convictions. 

This is a significant conclusion.  Although this court may sympathize with the district court's frustration with the guidelines, and is not oblivious to the larger controversy over federal sentencing and the question of the constitutional role of the judiciary, this case does not present such issues.  Thus we start with the point that "[m]ere disagreement with the guidelines does not justify a departure from them."  State v. Carter, 424 N.W.2d 821, 823 (Minn. App. 1988).  In the case of State v. Bellanger, 304 N.W.2d 282, 283 (Minn. 1981), the supreme court found it an abuse of discretion to depart from the guidelines based on the district court's disagreement with the guidelines where there was no evidence of substantial and compelling circumstances to justify the departure.  We also note that many felonies sentenced under the guidelines are enhanced based on similar or patterned prior convictions, or actions occurring within a timeframe less than 15 years.  See Minn. Stat. §§ 609.108 (patterned and predatory sex offenders), .224 (assault), .52 (theft) (2002).  If the district court was allowed to disregard the presumptive guidelines sentences in the DWI area because of the 15-year look-back period, the same logic would justify more extensive rejection of the guidelines.  The district court erred to the extent that it rejected the guidelines because the criminal history score is based on a 15-year look-back.  It is impossible for us to tell how much this error contributed to the dispositional departure.

Fourth, the state argues that the sentencing record indicates the district court abused its discretion in its consideration of mitigating factors, such as respondent's employment and the hardship placed on respondent's daughter.  The guidelines spell out both allowable mitigating factors including the role the accused played in the crime and any mental impairment, and improper factors such as race, gender, and employment history.  Minn. Sent. Guidelines II.D.1, 2.  The Minnesota Supreme Court has ruled that "when justifying only a dispositional departure, the trial court can focus more on the defendant as an individual and on whether the presumptive sentence would be best for him and for society."  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).  In State v. King, 337 N.W.2d 674, 675-76 (Minn.  1983), the court ruled that "[w]hile it is true that social and financial factors may not be directly considered as reasons for departure, occasionally they bear indirectly on a determination such as whether a defendant is particularly suitable to treatment in a probationary setting."  The court concluded that it was not an abuse of discretion in that case to consider the defendant's desire to continue working to pay his bills and a desire to keep his family together.  Id. at 675. 

In this case, the district court used respondent's job and the hardship placed on his daughter to justify its finding of amenability to and suitability of probation.  We conclude that the Heywood and King cases allow their consideration.  Although sentencing courts must be vigilant that their use of the factors not create ethnic or racial disparities, consideration of respondent's job and family in this case is not of such a character.  Accordingly, we reject this argument by the state.

We vacate respondent's sentence and remand this case for resentencing in accordance with this opinion or for withdrawal by respondent of his plea.  If the plea is not withdrawn, and unless a chemical assessment has been undertaken and appropriate treatment ordered prior to resentencing, a chemical assessment report should be performed and respondent should be ordered to submit to the level of care recommended.  Finally, the respondent should be informed of the conditional sentencing requirement of the law and conditional release should be explained and expressly included in the sentence.  See Minn. Stat. § 169 A. 276, subd. 1(d) (2002).

Reversed and remanded.

 

KLAPHAKE, Judge (dissenting)

            I respectfully dissent.  I do not believe that we should substitute our judgment for that of the district court, particularly when the court has cited a factor that is properly considered when determining whether to dispositionally depart.  I would therefore affirm the district court's decision to place respondent Gary Allen Preblich on probation, rather than execute his sentence at this time.

            "[A]s a reviewing court, it is not our role to substitute our own judgment for that of the district court, but to determine whether the [court] has shown an abuse of discretion in the sentence."  State v. Senjoha, 512 N.W.2d 597, 601 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994).  A district court may choose to "dispositionally depart and place a defendant on probation if the defendant is particularly amenable to probation or if offense-related mitigating circumstances are present."  Id. at 600 (quotation omitted).

            Here, the district court cited its belief that respondent was particularly amenable to probation as the basis for its dispositional departure.  Amenability to probation alone is a sufficient basis for a dispositional departure.  See, e.g., State v. Wright, 310 N.W.2d 461, 462 (Minn. 1981); State v. Donnay, 600 N.W.2d 471, 474 (Minn. App. 1999), review denied (Minn. Nov. 17, 1999).  Numerous factors are relevant when considering whether a defendant is "particularly amenable to individualized treatment in a probationary setting," including "[t]he 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).

            Here, the district court found that respondent demonstrated substantial remorse, fully cooperated with the court and the presentence investigator, and had substantial support from the community, including family and friends.  The record supports all these findings.

            Other evidence in the record lends further support to the district court's decision.  First, respondent's probation officer stated that based on her personal contact with him and with his wide support group, she would recommend that he be placed on in-home monitoring and probation, rather than prison, and that he was a "pretty decent probation candidate."  Second, Scott Severson, a counselor from respondent's most recent chemical dependency treatment program, opined that respondent was a "prime candidate" for in-patient treatment.  Finally, the presentence investigator, Eric Ellestad, acknowledged that chemical dependency in-patient treatment with a halfway house component would be a proper way to handle respondent.  Ellestad further acknowledged that the proposed chemical dependency program for respondent would fulfill these suggested requirements.  This record evidence supports the district court's decision to depart dispositionally.

            The district court finally noted that it was best for respondent and society to place him on long-term probation.  "[W]hen justifying only a dispositional departure," rather than a durational departure, the district court can "focus more on the defendant as an individual and on whether the presumptive sentence would be best for him and for society."  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).  Here, the district court recognized that its departure and decision to place respondent on long-term probation with strict conditions would provide more protection to society than would imposition of the presumptive sentence.

            Specifically, the sentence imposed by the district court consisted of the following components:

            -10 years probation

            -365 days in jail

            -intensive chemical dependency treatment

            -30-days of electronic home monitoring each year

            -attendance at weekly Alcoholics Anonymous meetings

            -fine and surcharge

            -no use of alcohol or illegal drugs

            -random chemical substance testing

            -no charges for license, insurance, or alcohol violations

            -compliance with Dakota County Community Correction rules

 

The presumptive sentence, on the other hand, would have committed respondent to the custody of the Commissioner of Corrections for 66 months.  Had the district court imposed the presumptive sentence, rather than this dispositional departure, respondent might have received no treatment and been back in the community within a short period of time, considering his jail time credit and any good time he might be able to earn in prison.  The district court fully considered society's and respondent's best interests, and fashioned a sentence that attempts to meet both.

            Given the facts and record here, I cannot conclude that the district court's decision to impose a dispositional departure was an abuse of discretion.  I would therefore affirm the district court's sentencing decision.

 

[1] We note that the district court's involvement in the plea agreement appears inappropriate.  See State v. Johnson, 279 Minn. 209, 156 N.W.2d 218 (1968) ("[T]he court should not usurp the responsibility of counsel nor participate in the plea bargaining negotiation . . . .").  But, issues not briefed on appeal are waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).  The state did not argue or brief this issue on appeal and therefore, we do not address the issue.