State of Minnesota, Respondent, vs. Theresa Rosa Urrutia, 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This opinion will be unpublished and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

A04-526

 

State of Minnesota,

Respondent,

 

vs.

 

Theresa Rosa Urrutia,

Appellant.

 

Filed December 21, 2004

Affirmed as modified

Halbrooks, Judge

 

 

St. Louis County District Court

File No. K1-03-601039

 

 

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

 

Alan L. Mitchell, St. Louis County Attorney, Mark S. Rubin, Assistant County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)

 

Bradford Colbert, Cortney Coates (certified student attorney), 875 Summit Avenue, Suite 254, St. Paul, MN 55105 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Theresa Urrutia challenges her sentence imposed for aiding and abetting second-degree murder, arguing that the district court abused its discretion by denying appellant's request for a downward-durational departure from the minimum presumptive sentence.  Urrutia also argues that, in computing her presumptive sentence, she should not have been given a custody status point because she was on probation following a stay of adjudication, rather than a conviction.  Because the district court did not err in denying the downward-departure request, but because Urrutia was incorrectly assigned a custody status point, we affirm her sentence as modified.

FACTS

            The essential facts in this case are not in dispute.  On September 23, 2003, Courtney Saul and Theresa Urrutia bought bullets for Gary LaQuier, who was too young to buy the ammunition himself.  Later that evening, Urrutia and LaQuier devised a plan to rob Clifford Brown, who they believed had "a bunch of money and some weed." 

            Early the next morning, LaQuier called Urrutia and told her that they were going to rob Brown.  LaQuier picked up Urrutia and they, along with several other people, went to Brown's apartment.  Urrutia admits that she knew they were going to rob Brown, but contends that she did not think anyone would get hurt and did not know that LaQuier had a gun until they were in the apartment building.  While LaQuier and Susan Robinson knocked on Brown's door, Urrutia waited on the landing.  At this point, LaQuier had his gun out.  When Brown opened the door, LaQuier and several others tried to push their way in.  During the struggle to open the door, LaQuier's gun went off and a bullet struck five-year-old Marcus Johnson, who was sleeping on the sofa.  Johnson died from the gunshot.  Urrutia was arrested shortly after the shooting. 

            Urrutia was charged with aiding and abetting second-degree unintentional murder in violation of Minn. Stat. § 609.19, subd. 2(1) (2002).  Urrutia agreed to plead guilty in return for the state's agreement that she would not receive a sentence greater than 159 months (the low end of the sentencing guidelines presumptive range based on a criminal history score of 1).  Under the terms of the agreement, Urrutia was free to ask for a downward departure from this presumptive sentence, and the state agreed not to seek an upward departure. 

            Urrutia moved for both a downward-dispositional and a downward-durational departure.  The state opposed the motion.  The court denied Urrutia's motion and imposed a sentence of 159 months.  This appeal follows.

D E C I S I O N

I.

            The district court has broad discretion in determining whether to depart from the sentencing guidelines and will not be reversed absent an abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  "[I]t would be a rare case which would warrant reversal of the refusal to depart."  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

The sentences provided in the [Minnesota] Sentencing Guidelines Grid are presumed to be appropriate for every case. The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances. When such circumstances are present, the judge may depart from the presumptive sentence and stay or impose any sentence authorized by law.

 

Minn. Sent. Guidelines II.D.  "Substantial and compelling circumstances are those circumstances that make the facts of a particular case different from a typical case."  State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985).  The court is not obligated to grant a downward departure simply because a mitigating factor is present.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).

            Urrutia argues that the court erred in denying her motion for a downward departure because she "played a minor role in the commission of the crime, accepted responsibility for its commission, and showed genuine remorse for the tragic consequences."  Although such factors can justify a downward departure from the sentencing guidelines, State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982), they do not require such a departure.  Oberg, 627 N.W.2d at 724.

            Here, the district court reviewed letters submitted by both Johnson's and Urrutia's families and "considered all of the factors allowed under the Sentencing Guidelines."  Urrutia portrays her role in Johnson's death as "minor," yet she purchased the bullets for LaQuier and helped him plan the robbery.  Given these facts, it is clear that the district court did not abuse its discretion; this is not the "rare case" that would warrant reversal of the court's refusal to depart from the guidelines. 

            Urrutia also argues that the district court erred in denying her motion for a downward departure because a different district court granted such a departure for another defendant involved in this crime and suggests that this court has a duty to resolve disparities in sentencing.  Consistency in sentencing for similar crimes is a goal of the sentencing guidelines.  Minn. Sent. Guidelines I.  But a downward departure granted a codefendant does not bar the sentencing court from imposing the presumptive sentence on appellant.  State v. Lonergan, 381 N.W.2d 51, 53 (Minn. App. 1986).

II.

            Urrutia contends that the district court erred by assigning her a custody status point for an offense for which she was not convicted.  The sentencing guidelines provide for the award of a custody status point if "the offender was on probation . . . following a felony [or] gross misdemeanor . . . conviction."  Minn. Sent. Guidelines II.B.2 (emphasis added).  Conviction is a necessary prerequisite to the award of a custody status point.  State v. Roloff, 562 N.W.2d 29, 31 (Minn. App. 1997).  Urrutia was on probation, but had received a stay of adjudication.  "[A] stay of adjudication is not equivalent to a conviction."  Id. at 32.  Accordingly, Urrutia argues that the custody status point should be vacated and she should be resentenced to 144 months, the low end of the presumptive range for a defendant with no custody status points.

            The state has conceded this issue and agrees that Urrutia's sentence should be modified.  Accordingly, we modify Urrutia's sentence from 159 to 144 months.

            Affirmed as modified.

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