State of Minnesota, Respondent, vs. Douglas Sam, Appellant.

This opinion will be unpublished and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

A04-388

 

State of Minnesota,
Respondent,
 
vs.
 
Douglas Sam,
Appellant.

 

Filed October 19, 2004

Affirmed

Minge, Judge

 

Mille Lacs County District Court

File No. K0-03-812

 

 

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

 

Janice S. Kolb, Mille Lacs County Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)

 

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

 

            Considered and decided by Willis, Presiding Judge; Randall, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

Appellant challenges his prison sentence for first-degree test refusal, arguing that this upward dispositional departure was an abuse of discretion and violated the decision of Blakely v. Washington, 124 S. Ct. 2531 (2004).  We affirm.

FACTS

 

Following a traffic stop, appellant was charged with one count of test refusal in the first degree in violation of Minn. Stat. § 169 A. 20, subd. 2 (2002); one count of felony driving while impaired (DWI) in violation of Minn. Stat. § 169 A. 20, subd. 1(1) (2002); and one count of gross-misdemeanor driving without a valid license in violation of Minn. Stat. § 171.24, subd. 5 (2002).  Ultimately, appellant pleaded guilty to test refusal in the first degree and the other charges were dropped.  Appellant had a record that included 18 prior DWI offenses and a criminal history score of two.  Under the sentencing guidelines, his presumptive sentence was a stayed sentence of 48 months.  After the sentencing hearing, the district court found that appellant was not amenable to probation and departed dispositionally by ordering appellant to a 48-month executed sentence.  Appellant appeals his sentence.

D E C I S I O N

A district court has broad discretion in sentencing criminal defendants.  State v. Law, 620 N.W.2d 562, 564 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).   But a district court "has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present."  State v. Spain, 590 N.W2d 85, 88 (Minn. 1999); see Minn. Sent. Guidelines cmt. II.D.01.  "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 addressing whether the district court properly departed dispositionally, this court must focus on "perpetrator-related" factors rather than offense-related factors.  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).  Amenability to probation and dangerousness to the community are proper factors to consider in determining whether to depart dispositionally.  State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990).

At the sentencing hearing, the district court noted appellant's problems with alcohol and, in an attempt to define "unamenibility," stated that the court understood the term not to mean failed attempts with treatment, but the lack of any attempt.  The court stated that "it's the struggle" that controls amenability rather than the success.  The court acknowledged that it had gone through appellant's history which showed that appellant had completed treatment three or four times, and stated: "But as I read the transcripts of what's happened in the past up to the present time, it seems at some point, Mr. Sam, you just gave up the struggle, that it just became too much, that you started opting for just taking . . . the jail in lieu of probation."  Because the court could not find evidence that appellant was making any efforts to engage in his battle with alcohol, the court concluded that appellant was not amenable to treatment and was a serious imminent public danger.

Appellant argues that the court departed dispositionally based on improper factors.  Specifically, appellant argues that the court erroneously based its conclusion that appellant was not amenable to probation on a finding that appellant's choices in the past to demand execution of his gross misdemeanor DWI sentences reflected a decision to give in to his alcoholism. 

Citing State v. Pickett, 375 N.W.2d 105, 108 (Minn. App. 1985), review denied (Minn. Dec. 19, 1985), appellant claims that the district court punished appellant for exercising his right to receive an executed sentence.  In Pickett, we modified a defendant's sentence when the district court increased the duration of the intended sentence after the defendant requested a departure hearing.  Id.  We concluded that to increase the severity of the intended sentence because of a request for a hearing would have a chilling effect on a defendant's due-process rights.  Id.  The facts are distinguishable on several grounds. 

First, Pickett addresses a defendant's exercise of constitutional rights.  We know of no constitutional right to choose to execute one's criminal sentence, nor does appellant argue that any due-process violation occurred.  Therefore, this case does not present the same concern at issue in Pickett the chilling effects of exercising one's constitutional rights.  Second, the district court's reasons for departing dispositionally were not based solely on the fact that in the past appellant chose to execute his sentence.  Rather, the court merely noted appellant's choices in the context of an ongoing pattern that supports its ultimate conclusion that appellant is not amenable to probation and treatment.

Appellant also cites State v. Christopherson, 500 N.W.2d 794, 797 (Minn. App. 1993), to argue that a district court may not depart dispositionally based on its subjective assessment that the defendant is not amenable to probation.  In Christopherson, we reversed the defendant's sentence when the district court's determination regarding amenability to probation was contrary to the recommendations of the psychologist and the probation officer, and was unsupported by any evidence in the record.  Id. at 797-98.  Unlike the situation presented in Christopherson, the record before us clearly supports the conclusion that appellant is not amenable to probation. 

Here, the pre-sentence investigation report (PSI) noted that appellant's "level of cooperation while on probation supervision in the past has not been positive."  The PSI also noted that appellant minimizes his issues and fails to take responsibility for his actions.  Appellant's honesty was called into question regarding his use of alcohol because, while appellant's criminal history reflects 18 DWI offenses, appellant stated that he does not use alcohol often.  The PSI concluded that appellant posed a "clear danger to public safety" and that he was not amenable to probation.  The PSI also stated: "Containment and protecting the public appear to be the overriding concern in this matter."  Further the corrections officer who authored the PSI, testified at the hearing on the state's motion for a dispositional departure that appellant has a failed history with treatment and that she believed appellant would not put any more effort into complying with probation directives and completing treatment now than he has in the past.  Accordingly, the officer concluded that appellant would most benefit from a treatment program while in custody.  This evidence strongly supports the district court's conclusion that appellant is not amenable to probation, a factor that may justify a dispositional departure.

Finally, appellant argues that this court should review his sentence in light of the United States Supreme Court's recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).  In Blakely, the Supreme Court determined that by allowing judicially found facts to enhance the duration of a sentence beyond the maximum sentence prescribed by the sentencing guidelines, the sentencing procedures deprived a defendant of the federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to sentencing.  Id. at 2537.  We note, however, that while the Blakely case addresses aggravating factors used to support a durational departure, the instant case is distinguishable because it involves a dispositional departure.  Further, a dispositional departure has historically been entrusted to the sentencing court rather than being a possible element of a crime, and does not exceed the durational statutory or guideline maximum.  Accordingly, we conclude that Blakely does not apply to appellant's sentence.

Because there is ample evidence in the record to support the finding that appellant is not amenable to probation, we conclude that the district court did not abuse its discretion in dispositionally departing from the sentencing guidelines.

Affirmed.