State of Minnesota, Respondent, vs. Dana Allen Warmbold, Appellant.

State of Minnesota, Respondent, vs. Dana Allen Warmbold, Appellant. A06-921, Court of Appeals Unpublished, June 5, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-921

 

State of Minnesota,
Respondent,
 
vs.
 
Dana Allen Warmbold,
Appellant.

 

Filed June 5, 2007

Affirmed

Peterson, Judge

 

Itasca County District Court

File No. KX-02-2401

 

 

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

 

John J. Muhar, Itasca County Attorney, Itasca County Courthouse, 123 Fourth Street Northeast, Grand Rapids, MN  55744 (for respondent)

 

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

 

            Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

 

PETERSON, Judge

            In this sentencing appeal, appellant argues that because the district court failed to find that appellant is a danger to public safety, the aggravated durational departure imposed under Minn. Stat. § 609.1095, subd. 2 (2002), must be reversed and appellant is entitled to be resentenced to the presumptive sentence under the sentencing guidelines.  Because we conclude that the district court's failure to specifically find that appellant is a danger to public safety does not invalidate his sentence, we affirm.

FACTS

            In 2003, appellant Dana Allen Warmbold was convicted of first-degree criminal sexual conduct and sentenced under Minn. Stat. § 609.1095, subd. 2 (2002), the dangerous-offender statute, to 240 months in prison, which was a departure from the presumptive 161-month sentence.  Appellant did not file a direct appeal. 

            On June 23, 2004, appellant filed a postconviction petition challenging his conviction and his sentence.  Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), the postconviction court reduced appellant's sentence to the presumptive term, reasoning that the Sixth Amendment to the United States Constitution requires that any fact that is used to increase a sentence beyond the maximum sentence set forth in the sentencing guidelines must be found by a jury.  The postconviction court denied all other portions of appellant's postconviction petition. 

            In an appeal from the postconviction court's order, this court determined that it was not until Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), that the Supreme Court held that any fact that is used to increase a sentence beyond the maximum sentence set forth in the sentencing guidelines must be found by a jury.  Warmbold v. State, No. A04-1973, 2005 WL 2353872, at *8 (Minn. App. Sept. 27, 2005), review denied (Minn. Dec. 21, 2005).  This court then determined that because Blakely was decided after appellant's sentence became final, and the rule in Blakely does not apply retroactively, the postconviction court erred in concluding that appellant's original sentence was unconstitutional under Ring.  Id.  This court reversed the postconviction court's order with respect to sentencing[1] and remanded for resentencing.

Upon remand, the district court again imposed a 240-month sentence, and it adopted by reference all findings that it had made on the original sentencing date.  This appeal followed.

D E C I S I O N

            We review a district court's decision to depart from the sentencing guidelines for an abuse of discretion.  State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).  The dangerous-offender statute in effect when appellant was convicted provided:

            Whenever a person is convicted of a violent crime that is a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive imprisonment sentence up to the statutory maximum sentence if the offender was at least 18 years old at the time the felony was committed, and:

                        (1) the court determines on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes; and

                        (2) the court finds that the offender is a danger to public safety and specifies on the record the basis for the finding, which may include:

                                    (i) the offender's past criminal behavior, such as the offender's high frequency rate of criminal activity or juvenile adjudications, or long involvement in criminal activity including juvenile adjudications; or

                                    (ii) the fact that the present offense of conviction involved an aggravating factor that would justify a durational departure under the sentencing guidelines.

 

Minn. Stat. § 609.1095, subd. 2 (2002).

            The findings that the district court adopted by reference when it sentenced appellant on remand state:

            The Court does find under Minnesota Statute 609.1095, Subd. 2, that [appellant] has at least two, in fact, has three prior conviction[s] for offenses defined in the statute as violent offenses, and they include a simple robbery in 1981, a simple robbery in 1991, and a felony pattern of harassing conduct in 1996.

 

            Also under Subd. 2, paragraph 2(i), the Court does find that he has had a high frequency rate of criminal activity as shown in the presentence investigation starting in 1977 and through 2001.  There are at least 18 convictions, I believe, ranging from misdemeanors to felonies.

 

            The Court also finds under that same paragraph of the statute a long involvement in criminal activity, and I just referred to going from ‘77 to 2001.

 

            Under Subd. 2, paragraph 2(ii), I also find that the present offense contains the following aggravating factors:  Based on the testimony of the victim, which was accepted by the jury, the nature of the sexual activity did show some particular cruelty above and beyond the normal criminal sexual conduct.  The victim also, given states of intoxication and no matter how she got there whether it was by drugs or her own consumption of alcohol, was particularly vulnerable and the offense took place in a zone which should have been an area or zone of safety; that is her own home.

 

            Appellant argues that although these findings establish a basis upon which the district court could have found that appellant is a danger to public safety, the court did not actually find that appellant is a danger to public safety.[2]  Appellant contends that because this finding was not articulated on the record at the time of sentencing, the departure under Minn. Stat. § 609.1095, subd. 2, must be disallowed and appellant is entitled to be sentenced to the 161-month presumptive sentence.  We disagree.

            The argument that appellant makes was rejected by the supreme court in Neal v. State, 658 N.W.2d 536 (Minn. 2003).  In Neal, the district court imposed an upward durational departure based on Minn. Stat. § 609.1095, subd. 2 (2002).  658 N.W.2d at 540-41.  But the district court failed to specifically find that Neal constituted a danger to public safety.  Id. at 542-43.  Neal asserted on appeal "that because the district court did not specifically state on the record that he is a danger to public safety, he was improperly sentenced under the dangerous-offender statute."  Id.at 543.  The supreme court concluded:

            While the district court did not articulate a specific finding that Neal is a danger to the public, the court's other findings provide the basis for such a conclusion.  When the court addressed the kidnapping offense and the aggravated robbery offense, it specifically found that Neal had both a long involvement in criminal activity and a high frequency rate of criminal activity.  Thus, after reviewing the court's findings in their entirety, we conclude that the court's failure to specifically find that Neal is a danger to public safety does not invalidate the sentence. . . .

 

            While we conclude here that the district court did not err because it essentially complied with the requirements of the dangerous-offender statute, the court should have followed the statute.  The purpose behind the sentencing guidelines is to establish uniform and consistent sentencing standards.  Minnesota Sentencing Guidelines I.  The dangerous-offender statute counteracts this purpose by allowing courts to impose sentences that depart durationally from the presumptive sentence.  To justify the departure, the court must find the offender satisfies specific criteria defined by the statute.  Therefore, courts should comply with the mandates of the statute to ensure that a departure is warranted in each case.  The dangerous-offender statute requires that courts determine that the offender is a danger to public safety, and a court should make this specific finding if it wants to impose a sentence under the statute.

 

Id. at 544.

            As appellant concedes, the district court's findings establish a basis upon which the district court could have found that appellant is a danger to public safety.  Thus, as in Neal, the district court's failure to specifically find that appellant is a danger to public safety does not invalidate his sentence.

            Appellant argues, however, that the supreme court's statements in the second paragraph quoted from Neal above that "the court should have followed the statute," "the court must find the offender satisfies specific criteria defined by the statute," "courts should comply with the mandates of the statute," and "a court should make this specific finding" can only be interpreted as imposing a mandatory requirement that district courts applying the dangerous-offender statute explicitly make each of the findings required under the statute.  But the supreme court's holding in Neal demonstrates that the supreme court did not impose any mandatory requirement for findings in Neal.  The supreme court held that the failure to specifically find that Neal is a danger to public safety did not invalidate Neal's sentence.  Neal, 658 N.W.2d at 544. 

            There is nothing in the second paragraph quoted above that suggests that the supreme court intended to impose a mandatory requirement for findings in future cases that involve a sentence imposed under Minn. Stat. § 609.1095, subd. 2.  Therefore, we conclude that the second paragraph is simply an admonition to district courts that when sentencing under Minn. Stat. § 609.1095, subd. 2, it is important to make specific findings that comply with the requirements of the statute.

            Because we conclude that the district court's failure to specifically find that appellant is a danger to public safety does not invalidate his sentence under Minn. Stat. § 609.1095, subd. 2, it is not necessary for us to consider appellant's separate argument that the record does not reveal another basis for imposing an upward durational departure.

            Affirmed.

[1] This court affirmed the postconviction court's order in all other respects.

 

[2] The state contends that under State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), this court should not consider the merits of appellant's attack on his sentence because in his initial petition for postconviction relief, appellant could have asserted the claims that he now asserts, but he did not do so.  But appellant has not had a previous opportunity to challenge the sentence that was imposed following the remand by this court.  Although the sentence that was imposed on remand is the same as the sentence that the district court initially imposed, it is a newly imposed sentence that appellant has not had a previous opportunity to challenge.