State of Minnesota, Respondent, vs. Jeffrey Alan Green, Appellant.

State of Minnesota, Respondent, vs. Jeffrey Alan Green, Appellant. A04-2502, Court of Appeals Unpublished, November 1, 2005.

This opinion will be unpublished and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

A04-2502

 

State of Minnesota,
Respondent,
 
vs.
 
Jeffrey Alan Green,
Appellant.

 

Filed November 1, 2005

Affirmed

Stoneburner, Judge

 

Carver County District Court

File No. 10CR04216

 

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

 

Michael A. Fahey, Carver County Attorney, 604 East Fourth Street, Chaska, MN 55318 (for respondent)

 

Richard L. Swanson, 207 Chestnut Street, Suite 235, P.O. Box 117, Chaska, MN 55318 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Stoneburner, Judge; and Worke, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges imposition of the presumptive guideline sentence as an abuse of the district court's discretion.  We affirm.

FACTS

 

Appellant Jeffrey Allan Green was convicted of criminal vehicular homicide.  The district court denied his motion for a downward dispositional sentencing departure and sentenced appellant to the presumptive guideline sentence of 48 months executed.  This appeal followed.

D E C I S I O N

 

A district court's sentencing decision will be overturned only if there is a clear abuse of discretion.  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).  Even when grounds exist that may justify a departure, this court generally will not interfere with the imposition of the presumptive sentence.  State v. Evenson, 554 N.W.2d 409, 412 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  It is a "rare case" that warrants reversal of a district court's refusal to depart from the sentencing guidelines.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). 

            Appellant asserts that the district court failed to deliberately consider the factors in favor of departure and the factors against departure, citing State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984).  In Curtiss, the district court found that there were no legitimate reasons for departure and imposed the presumptive sentence of 33 months in prison for an 18-year-old's taking 16 bottles of beer from the breezeway of an occupied house.  Id. at 263.  This court remanded, noting that the record contained legitimate reasons for and against departure and the district court erred in putting aside arguments for departure rather than considering them alongside reasons for non-departure, thereby failing to exercise discretion.  Id.at 264.  This case is distinguishable from Curtiss. 

            There was testimony on behalf of appellant and from the victim's family at the sentencing hearing.  The prosecutor and appellant's counsel presented their arguments.  The presentence investigation recommended the presumptive sentence.  The district court did not deny the existence of mitigating factors; it considered them along with the aggravating factors argued by the prosecutor that appellant's conduct was significantly more serious than is typically involved in the commission of a criminal vehicular homicide.[1]  The district court specifically referred to appellant's exercise of bad judgment and the fact that he should not have been driving before the district court concluded that "given the circumstances . . . the sentencing guidelines are accurate and are appropriate." 

            Appellant complains that the district court "failed to cite any reason for the denial of appellant's request for a downward dispositional departure," but the record demonstrates that this complaint is without merit.  And a written explanation is not required when a district court elects to impose the presumptive sentence after considering reasons for departure.  Curtiss, 353 N.W.2d at 263.

            Affirmed.

[1] Appellant drove with an alcohol concentration of .18, crossed the centerline of a highway, and collided head-on with a vehicle driven by a woman who was returning home from work, causing her death at the scene of the collision.  Appellant told a deputy sheriff that he had consumed "about five beers."  There were beer cans scattered throughout appellant's vehicle and a half-full can of beer in the cup holder.