This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Robert Joseph Jeddeloh,
Reversed and remanded
Anoka County District Court
File No. K3004107
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN† 55103-2106; and
Robert M. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant Anoka County Attorney, 2100 Third Avenue, 7th Floor, Anoka, MN† 55030 (for appellant)
John W. Lundquist, Jay M. Quam, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN† 55402-3397 (for respondent)
††††††††††† Considered and decided by Edward Toussaint, Jr., Chief Judge, Gary L. Crippen, Judge and G. Barry Anderson, Judge.
G. BARRY ANDERSON, Judge
Respondent, found guilty of fleeing a peace officer in a motor vehicle, a felony, moved for a downward durational departure from the sentencing guidelines.† The district court granted the request for a downward departure.† The state appeals, and because we conclude that the factors relied upon by the court do not justify the downward departure, we reverse and remand.
††††††††††† The district court found respondent guilty of fleeing a peace officer in a motor vehicle, a violation of Minn. Stat. ßß 609.487, subd. 3 (1998) and 609.101, subd. 4 (1998), and having an alcohol concentration of .20 or more within two hours of driving, a violation of Minn. Stat. ßß 609.121, subd. 1(f) (2000) and 169.101, subd. 4 (2000).†† Respondent moved for a downward departure from the presumptive sentence.† At the sentencing hearing, respondentís attorney stated:
Now I would suggest that Dr. Jeddeloh is the type of person that it would be appropriate for a downward departure.† What we suggest is appropriate is I think what the probation officer suggests in the fleeing charge, Your Honor, and thatís a sentence to a gross misdemeanor rather than a felony which creates practically not much difference in what Dr. Jeddeloh actually does.† But it does remove a psychological barrier and a stigma to him that has intrinsic value to him.† * * * [W]eíre just asking [the Court] to recognize the efforts that Dr. Jeddeloh has made and allow him to avoid the felony label that he would have to have if the Court goes with the recommended sentence.
The district court sentenced respondent to a one year stayed sentence and a $3,000 fine in connection with his conviction for fleeing a peace officer, even though the presumptive sentence for this offense under the Minnesota Sentencing Guidelines is a stayed term of one year and one day.† Thus, the district court departed downward from the guidelines by one day, which resulted in respondent receiving a gross misdemeanor sentence for a felony conviction.† The state appeals, arguing that the factors relied upon by the court do not justify the downward departure.
††††††††††† A district courtís decision to depart from the presumptive sentence specified in the sentencing guidelines is reviewed for an abuse of discretion.† Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).† This court will reverse a district courtís findings only when they are clearly erroneous.† State v. Butterfield, 555 N.W.2d 526, 530 (Minn. App. 1996), review denied, (Minn. Dec. 17, 1996).† The sentencing guidelines specifically allow for district court discretion.† See Minn. Sent. Guidelines II.D.2.a(5) (allowing departure when ď[o]ther substantial grounds exist which tend to excuse or mitigate the offenderís culpability, although not amounting to a defense.Ē).† But a sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.† State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).† The aggravating or mitigating circumstances justifying departure from the presumptive sentence must be present in the record.† Rairdon, 557 N.W.2d at 326.† The list of potentially aggravating or mitigating factors is non-exclusive. Minn. Sent. Guidelines Comment II.D.†††††††
The district court determined that there were mitigating factors in this case to support a downward durational departure.† The district court noted respondentís amenability to probation and clean criminal record as factors supporting a downward departure.† The state, however, argues that these two factors should not be considered in a downward durational departure.† We agree.† See State v. Cizl, 304 N.W.2d 632, 634 (Minn. 1981) (holding that because the sentencing guidelines already take a defendantís prior criminal history into consideration, lack of a prior criminal record cannot be considered again); State v. Behl, 573 N.W.2d 711, 713 (Minn. App. 1998) (stating that, with respect to a durational departure, the sentencing court ďmust not focus on a defendantís amenability to treatment or probation, or speculate about a defendantís future conduct or backgroundĒ), review denied (Minn. Mar. 19, 1998);State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (criminal record already considered in calculation of criminal history points and cannot be considered again), review denied (Minn. Oct. 27, 1994).†† †††† ††
††††††††††† The district court also determined that the non-aggravating nature of respondentís actions warranted a downward departure from the presumptive sentence.† Under Minnesota law, a downward durational departure may be proper when a defendantís conduct is significantly less serious than that typically involved in the commission of the crime in question. †State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984).† The district court made the following statement:
††††††††† I also see lots of cases that go through this court system that * * * involve people that flee police officers in motor vehicles.† And Iíve seen cases that are maybe as egregious or possibly even less egregious that yours that end up, for example, as misdemeanor convictions, obstruction plea.† And I take that into consideration today.
††††††††† * * * *
I donít believe your acts are aggravating in nature.† You stopped your driving voluntarily.† You did not, in my estimation under the facts I heard in this trial, constitute a danger to either life or property.
††††††††††† The state argues, however, defendantís conduct was not significantly less serious than other similar crimes, and cites cases, both published and unpublished, to support its position.† See State v. Johnson, 374 N.W.2d 285, 286 (Minn. App. 1985), review denied, (Minn. Nov. 18, 1989) (defendant farmer, after being pulled over by police, fled traveling 15 miles-per-hour and stopped after officer fired his pistol).
††††††††††† Respondent counters that his conduct was significantly less serious than other similar crimes and points to the district courtís findings, as articulated during the sentencing hearing, for support.† The district court found that respondent stopped voluntarily, but the record reveals that respondent stopped at the top of a hill while two police squad cars with their emergency lights activated had set up spikes across the road approximately four blocks away.† While we may have reached a different result with respect to this finding, we are not convinced that a mistake has been made.† See Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997) (stating a finding is clearly erroneous when upon review of the entire evidence, the court is left with the definite and firm conviction that a mistake has been made).† The district court also found that respondentís actions did not constitute a danger to either life or property to support its finding that respondentís actions were significantly less serious than that typically involved in the commission of the crime in question.† But the record reveals that respondent eluded police for 6.9 miles at speeds exceeding 115 miles per hour with an alcohol concentration of .21.† Police officers blocked traffic from entering the highway to protect motorists from harm.† Thus, we conclude that the district courtís finding that respondent did not ďconstitute a danger to either life or propertyĒ is clearly erroneous.† As a result, we conclude that the district court improperly relied on the significantly less serious nature of respondentís actions as a basis for its downward departure.†
Finally, the district court considered respondentís remorse as a factor supporting a downward departure from the presumptive sentence.† The district court stated:
youíve expressed sufficient remorse to this court through your conduct as Iíve
watched throughout the proceedings and at your trial.† I think youíve taken it seriously.† I think you stepped up to the plate, attempted to
resolve it, but you couldnít resolve it.† And I take those things into account.† And I do believe that youíve accepted responsibility for the behavior which brings you here today.
††††††††††† While a defendantís remorse generally bears on his or her amenability to probation and is most relevant to dispositional departure, this court has held that a district court may consider a defendantís remorse, along with other factors, when making a downward durational departure from the guidelines.† See Bauerly,520 N.W.2d at 762-63 (district court properly considered the defendantís remorse and the less serious nature of defendantís conduct compared to other similar crimes where defendant pleaded guilty to one count of felony theft and was sentenced to one year (execution stayed) when the presumptive felony sentence was a year and a day).† †
But here, based on the record before us, only respondentís genuine remorse supports a downward durational departure.† In light of the egregious conduct by respondent, conduct which placed at risk the lives of others, we conclude the district court abused its discretion in departing from the sentencing guidelines.† We therefore remand for resentencing consistent with the presumptive guidelines sentence in force at the time of conviction.
Reversed and remanded.
 See also State v. Campbell, No. C4-98-1056, 1999 WL 58565 (Minn. App. Feb. 9, 1999) (police pursued defendant after he failed to stop at stop sign in Supermarket parking lot; defendant fled on foot but turned himself in next day); State v. McLoughlin, No. C7-98-418, 1998 WL 811557 (Minn. App. Nov. 24, 1998) (defendant, with .19 blood alcohol content, fled police traveling 50-55 mph until he crashed in ditch);† State v. Salzl, No. C5-97-1346, 1998 WL 113979 (Minn. App. Mar. 17, 1998) (vehicle crashed into snow bank and defendant fled on foot but was later apprehended). We recognize, however, that unpublished opinions are of persuasive value ď[a]t bestĒ and not precedential.† Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993).