State of Minnesota, Respondent, vs. James Michael Moehlenbrock, Appellant.

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State of Minnesota, Respondent, vs. James Michael Moehlenbrock, Appellant. A06-2161, Court of Appeals Unpublished Decision, October 23, 2007.

This opinion will be unpublished and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
A06-2161

 

State of Minnesota,
Respondent,

vs.

James Michael Moehlenbrock,
Appellant.

Filed October 23, 2007

Affirmed

Randall, Judge

 

St. Louis County District Court

File Nos. CR-06-428, 05-1819, 05-824, 05-290, 05-1884, 06-1099

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55105; and

 

Alan L. Mitchell, St. Louis County Attorney, Karl Sundquist, Assistant County Attorney, St. Louis County Courthouse, 300 Fifth Avenue South, Virginia, MN 55792 (for respondent)

 

Jason C. Brown, Brown Law Offices, LLC, Champlin Town Offices, 11125 Zealand Avenue North, Champlin, MN  55316 (for appellant)

 

 

            Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from conviction and sentence, appellant argues that (a) the district court erred in imposing consecutive sentences because the district court erroneously failed to apply the amended statutory language of Minn. Stat. § 169 A. 28, subd. 1(b) (2006); (b) the district court abused its discretion by denying his motion for a downward dispositional departure; (c) his sentence was unconstitutionality enhanced; (d) the district court abused its discretion by imposing mandatory consecutive sentences in accordance with Minn. Stat. § 169 A. 28, subd. 1 (2004); and (e) the prosecutor committed prejudicial misconduct by misrepresenting to the district court that appellant had 12 prior DWI convictions.  We affirm.

FACTS

            On May 16, 2006, appellant James Moehlenbrock pleaded guilty to (1) fleeing a police officer in a motor vehicle; (2) driving after cancellation; and (3) two felony counts of driving while impaired (DWI).  In exchange for appellant's guilty plea, the state agreed to dismiss court file number 69-VI-CR-05-1884.  The state also agreed that appellant would serve 62 months for one of the first-degree DWI charges, and up to 36 months for the second first-degree DWI charge, with the opportunity for appellant to argue for less time at sentencing.  The parties further agreed that the charge of fleeing a peace officer in a motor vehicle and the driving after cancellation charge would run concurrently with the two felony DWI charges, but the two felony DWI charges would run consecutively.  Finally, the state agreed to dismiss the various remaining counts. 

            Appellant was sentenced in August 2006, following a psychological evaluation by Dr. Steven Carter.  At sentencing, appellant moved for a downward dispositional departure.  To support his claim, appellant cited his mental illness as diagnosed by Dr. Carter and the opportunity to participate in a treatment program if a probationary sentence were imposed.  The district court denied the motion and sentenced appellant to 19 months for file number 69-VI-CR-05-824, fleeing a peace officer in a motor vehicle; 62 months for file number 69-VI-CR-05-1819, one of the first-degree DWI charges; and 36 months for file number 69-VI-CR-06-428, the other first-degree DWI charge.  The sentence for fleeing a peace officer and the sentences for the two DWI charges were to run concurrently.  The sentences for the two DWI charges were to run consecutively.  Appellant's total sentence was 98 months.  This appeal followed.

D E C I S I O N

I.

            Appellant argues that under Minn. Stat. § 169 A. 28, subd. 1(b) (2006), his two convictions of DWI should have been ordered to be served concurrently rather than consecutively.  Statutory construction and interpretation of the sentencing guidelines are subject to de novo review on appeal.  State v. Zeimet, 696 N.W.2d 791, 793 (Minn. 2005).  A reviewing court must give effect to a statute's plain meaning if the statute's language is clear and unambiguous.  State v. Bluhm, 676 N.W.2d 649, 651 (Minn. 2004).  "When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit."  Minn. Stat. § 645.16 (2006).

            In May 2006, when appellant pleaded guilty to the DWI charges at issue, section 169 A. 28, subd. 1, provided: 

The court shall impose consecutive sentences when it sentences a person for: 

            (1) violations of section 169 A. 20 (driving while impaired) arising out of separate courses of conduct;

            (2) a violation of section 169 A. 20 when the person, at the time of sentencing, is on probation for, or serving, an executed sentence for a violation of section 169 A. 20 . . . and the prior sentence involved a separate course of conduct; or

            (3) a violation of section 169 A. 20 and another offense arising out of a single course of conduct that is listed in subdivision 2, paragraph (e), when the person has five or more qualified prior impaired driving incidents within the past ten years. 

                                                                

Minn. Stat. § 169 A. 28, subd. 1 (2004).  The legislature amended the statute, effective June 2, 2006, by adding subdivision 1(b) as an exception to the mandatory consecutive sentencing requirement of now-designated subdivision 1(a).  2006 Minn. Laws ch. 260, art. 2, § 4, at 735-36, 829.  The amendment provides that "[t]he requirement for consecutive sentencing . . . does not apply if the person is being sentenced to an executed prison term for a violation of section 169 A. 20 (driving while impaired) under circumstances described in section 169 A. 24 (first-degree driving while impaired)."  Minn. Stat. § 169 A. 28, subd. 1(b) (2006). 

            The state contends that because appellant pleaded guilty in May 2006, before the statute was amended, appellant is not entitled to benefit from the statutory amendment.  We disagree.  The legislation that amends section 169 A. 28 also amends eight other sections of chapters 169 and 169A.  2006 Minn. Laws ch. 260, art. 2 §§ 1-14, at 733-40. 

For each of the other provisions, the legislation indicates an effective date of August 1, 2006, and expressly provides that the provision applies to offenses that occur after that date.  Id.  Conversely, the legislature mandated that the effective date of the amendment to the sentencing provision is "the day following final enactment," and it does not include language that directs its application to offenses committed after the effective date.  Id. at 735.  We conclude that the reason for this distinction is clear.  The unamended portion of section 169 A. 28 already provides that the court shall impose consecutive sentences if the defendant, "at the time of sentencing," is then serving an executed sentence for a prior DWI conviction.  Minn. Stat. § 169 A. 28, subd. 1(a).  Both the amended statutory language and the unamended statutory language apply when a defendant "is being sentenced."  Id., subd. 1(b).  The amendment included no language directing its application to offenses committed after the effective date, and so by its terms the statute, as amended, continues to apply "at the time of sentencing" to a defendant who "is being sentenced."  Because the amended statute had come into effect before appellant was sentenced, he was entitled to application of the amended language set forth in section 169 A. 28, subd. 1. 

            Appellant argues that because the amended statutory language of section 169 A. 28, subd 1, is applicable to his sentence, the amended statutory language mandates concurrent rather than consecutive sentencing for his first-degree DWI convictions.  But the amended statutory language provides:  "The requirement for consecutive sentencing in paragraph (a) does not apply . . . ."  Minn. Stat. § 169 A. 28, subd. 1(b) (emphasis added).  The amendment does not mandate concurrent sentences for felony first-degree

DWI convictions; it merely makes consecutive sentencing discretionary.  See id.; see also State v. Holmes, 719 N.W.2d 904, 909 n.9 (Minn. 2006) (noting that "[s]ection 169 A. 28 has been amended to allow concurrent sentencing" (emphasis added)).  The post- amendment sentencing guidelines deem felony first-degree DWI offenses eligible for permissive consecutive sentences.  Minn. Sent. Guidelines II.F, VI.  Thus, the amended statutory language of section 169 A. 28, subd. 1, does not mandate concurrent sentencing for appellant's DWI convictions.  The district court retained discretion to impose a consecutive prison sentence. 

II.

            Appellant argues that the district court abused its discretion by denying his motion for a downward dispositional departure.  "[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present."  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  The district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves "substantial and compelling circumstances" to warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

            A district court may choose to depart from the presumptive guidelines sentence by imposing probation instead of an executed sentence when a defendant is amenable to probation.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  Amenability to probation depends on numerous factors, including the defendant's age, prior record, remorse, cooperation, attitude while in court, and support of friends and family.  Id.  "Only in a rare case would a sentencing court's refusal to depart warrant reversal."  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001) (quotation omitted), review denied (Minn. Aug. 22, 2001).  Further, the court is not obligated to grant a dispositional departure merely because a mitigating factor is present.  Id.

            Appellant argues that the district court abused its discretion in denying his motion for a downward dispositional departure because (a) the court failed to apply the Trog factors; (b) the court agreed that appellant is amenable to probation and that mitigating circumstances were present, yet denied his motion; and (c) the court failed to take into account his serious and persistent mental illness. 

A.     Trog factors

            Appellant argues that the district court failed to fully apply the Trog factors.  We disagree.  The record reflects that the district court considered the appropriate factors.  See Trog, 323 N.W.2d at 31 (stating that the factors to be considered include age, prior record, remorse, cooperation, attitude while in court, and support of friends and family).  The district court specifically acknowledged that appellant is "52 years old" and that he has been "through the system before."  The district court also stated that:

            But we are standing here today with two felony DWIs.  We are standing here with a felony fleeing a peace officer.  You have been a threat to the citizens of Northeastern Minnesota on the highways.  Nobody has gotten hurt, thank God.  But you have been a threat, and you did not seem to care about that threat.  You are on felony - - you are out on felony charges and you go and not only compound it by driving, but you drive under the influence.  You post bond again, and you go out, and you drive again after drinking.  And it's really difficult, [appellant], when defendants stand before the Court and say I am concerned, I am concerned, have some concern, when you haven't really shown a concern for the citizens and other people who could have gotten hurt by your actions. 

 

These comments show the district court considered appellant's lack of cooperation, his remorse, and his attitude.  The district court did properly consider the Trog factors. 

B.     Amenable to probation

            Appellant argues that the district court abused its discretion in denying his motion for a downward departure because the court agreed that he was amenable to probation and that mitigating circumstances were present.  But the district court did not agree that appellant was amenable to probation.  The record reflects that appellant argued that he was amenable to probation.  He supported his assertion by presenting Dr. Carter's testimony that the Minnesota Teen Challenge program would provide a much more productive environment for appellant to receive treatment than the prison system.  Although the district court agreed that his argument "makes sense" and that it was a difficult issue, the court did not agree that he was amenable to probation.  Instead, the court noted that "you are out on felony charges and you go and not only compound it by driving, but you drive under the influence.  You post bond again, and you go out, and you drive again after drinking."  The record reflects that appellant has had numerous opportunities at treatment, including 1990, 1992, 1998, and 2005.  We conclude the district court did not abuse its discretion in denying his motion for a downward departure.

            C.        Mental illness

            Appellant further argues that in denying his motion, the district court failed to take into account his mental illness.  The supreme court has emphasized that only extreme mental impairment justifies a mitigation of sentence.  State v. Lee, 491 N.W.2d 895, 902 (Minn. 1992).  Here, the district court found that appellant suffered from "a mild disorder."  The court considered appellant's "mild disorder," and concluded that "[p]risons are full of people that are alcoholics that have mild mental health issues.  I really cannot see under the circumstances of this case that a departure is warranted."  The district court considered appellant's mental illness and concluded that appellant's condition did not constitute a basis to depart from the presumptive sentence.  The record supports the district court's discretionary call.

III.

                        Appellant argues that his sentence was unconstitutionally enhanced because the district court used his prior DWI convictions to enhance the sentence without a proper finding that his prior convictions involved counseled pleas or knowing waivers.  If there is no record of an unrepresented defendant's waiver of counsel at the time of the prior conviction, that conviction can be collaterally attacked on constitutional grounds and invalidated for purposes of an enhanced penalty statute.  State v. Nordstrom, 331 N.W.2d 901, 904 (Minn. 1983).  The defendant has the burden of properly challenging the constitutional validity of the prior conviction or revocation.  Id. at 905.  This burden is met and the conviction properly challenged if the defendant submits a detailed, sworn affidavit indicating that he or she was not represented by counsel in the prior proceeding and that the defendant did not validly waive his or her right to counsel.  State v. Otto, 451 N.W.2d 659, 661 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990). 

            Here, appellant submitted no such affidavit, nor any other proof.  In fact, the issue was never raised below.  Because appellant failed to raise the issue below, there is nothing in the record indicating whether his prior convictions were constitutionally obtained.  Appellant fails to meet his burden of properly challenging the constitutional validity of his prior convictions.  See Nordstrom, 331 N.W.2d at 905 (stating that the defendant has the burden of properly challenging the constitutional validity of a prior conviction in a pretrial proceeding).

IV.

            Appellant argues that if the amended statutory language of Minn. Stat. § 169 A. 28, subd. 1(b) (2006), does not apply, the district court erroneously imposed consecutive sentences under Minn. Stat. § 169 A. 28, subd. 1 (2004), because appellant does not have a first-degree driving while impaired on his record.  But appellant failed to raise this issue below and has waived the issue. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that this court will generally decline to consider arguments not raised below).  Moreover, Minn. Stat. § 169 A. 28, subd. 1, does not mandate that the offenses for which appellant is being sentenced to consecutive terms be first-degree DWIs.  The statute simply mandates that the court impose "consecutive sentences when it sentences a person for; (1) violations of section 169 A. 20 (driving while impaired) arising out of separate courses of conduct . . . . "  Minn. Stat. § 169 A. 28, subd. 1(1).  Minn. Stat. § 169 A. 20, subd. 3 (2006), provides that a "person who violates this section may be sentenced" as a (1) first-degree DWI; (2) second-degree DWI; (3) third-degree DWI; or (4) fourth-degree DWI.  Thus, under Minn. Stat. § 169 A. 28, subd. 1, there is no requirement that for consecutive sentences to be imposed, the violations "must" be first-degree DWIs.   

V.

            Appellant argues that the prosecutor committed prosecutorial misconduct at the sentencing hearing.  The determination of whether the prosecutor acted improperly normally rests within the sound discretion of the district court.  State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).

            A defendant who fails to object to prosecutorial misconduct at trial generally waives the right to have the issue considered on appeal.  State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999).  "[D]efendant's failure to object implies that the comments were not prejudicial."  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).  This court will consider the issue and grant a new trial if the misconduct constituted plain error.  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  A plain-error analysis requires that there be (1) error; (2) that is plain; and (3) that affects substantial rights.  Id. at 302 (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)). 

            Here, appellant asserts that, at the sentencing hearing, the prosecutor misrepresented to the district court that appellant had 12 prior DWIs.  This fact is conceded by the state.  The record reflects that appellant failed to object to the misrepresentation.  See Whittaker, 568 N.W.2d at 450 (stating that a defendant's failure to object implies that the comments were not prejudicial).  Appellant's defense counsel made the same mistake when arguing for a downward departure.  Specifically, appellant's defense counsel stated:

            We are in a situation right now where we have got two choices.  That's what we have.  Do we say, [appellant], forget about it, you have had 12 DWIs, you have been convicted of seven felonies, forget it, we are just going to send you off to prison for 96 months, 98 months.  Or do we say, look, we have an opportunity here, an opportunity for one of our citizens who has come forward into a situation that has put him in front of this Court in a very, very difficult situation.  But we have the ability to help this person.  We can put this individual in treatment, and we can punish him at the same time.

 

(Emphasis added.)  In addition, the district court had the pre-sentence investigation before it, along with appellant's driving record, which reflects the correct number of past convictions.  The district court did not make any statements indicating that the prosecutor's misrepresentation of appellant's record played a part in the sentence.  Rather, the district court focused on the three DWI incidents for which appellant was appearing before the court.  We cannot find that the prosecutor's misconduct constituted prejudicial error. 

            Affirmed.