This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Jerrold Ryan Kemmer,
Beltrami County District Court
File No. K500223
Mike Hatch, State Attorney General, 535 Park Street, Suite 500, St. Paul, MN 55103; and
Timothy R. Favor, Beltrami County Attorney, Judicial Center Annex, 619 Beltrami Avenue NW, Bemidji, MN 56601-3066 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Amundson, Presiding Judge, Peterson, Judge and Anderson, Judge
G. BARRY ANDERSON, Judge
Appellant challenges the district court’s exercise of discretion in revoking his probation and imposing a sentencing departure. Because there was no abuse of discretion, we affirm.
On February 6, 2000, appellant Jerrold Ryan Kemmer was arrested after fleeing police for approximately 50 miles. The chase ended when appellant’s vehicle struck a Lake of the Woods County Squad car in Baudette, Minnesota. During the 50-mile pursuit, appellant’s vehicle reached speeds in excess of 100 miles per hour.
On July 19, 2000, appellant pleaded guilty to the charge of felony fleeing a peace officer, a violation of Minn. Stat. § 609.487, subd. 3 (2000). Subject to the plea agreement, the district court stayed imposition of appellant’s sentence. The presumptive sentence for the offense was a year and a day. The court repeatedly stated to appellant that if he violated his probation he would likely be facing an upward double-durational departure and a two-year prison sentence.
On February 26, 2001, appellant was arrested for impersonating a police officer. A probation revocation hearing was held and appellant pleaded guilty to the new charge of impersonating a police officer. Charges of possessing a police scanner and driving after revocation were dismissed. Appellant was provided with the choice of voluntary civil commitment or an executed sentence; appellant opted for the executed sentence.
Appellant’s probation was revoked and he was sentenced to 24 months. This appeal follows.
Appellant challenges the district court’s revocation of his probation as an abuse of discretion.
The trial court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.
State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980) (citations omitted). To revoke probation, the court must (1) designate the specific condition or conditions a probationer violated; (2) find that the violation was intentional and inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation. Id. at 250.
The terms of appellant’s probation included, among other things, no misdemeanor or more significant convictions and abstinence from alcohol or drugs. The district court, given appellant’s guilty plea to the charge of impersonating an officer, found that appellant’s “violations of probation [were] inexcusable, unjustifiable and repeated.”
The court determined that appellant was in need of treatment for “a character disorder of long-standing duration.” The possibility of committing appellant involuntarily was explored by the court, but was found not to be an option. The court concluded that appellant was unable to follow the conditions of his probation and that he posed a danger to public safety that outweighed the state’s policy favoring probation. Here, the district court satisfied the requirements of Austin and was acting well within its broad discretion by revoking appellant’s probation.
Appellant next challenges the district court’s upward durational departure as unjustified because the departure was based on appellant’s mental condition and need for treatment rather than incarceration. But the district court has broad discretion to depart from the sentencing guidelines where aggravating or mitigating factors exist. State v. Barsness, 473 N.W.2d 325, 329 (Minn. App. 1991), review denied (Minn. Aug. 29, 1991).
If the sentencing court states reasons supporting a departure, the reviewing court “will examine the record to determine if the reasons given justify the departure.” Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). A reviewing court will modify a departure if it has a “strong feeling” the sentence is inappropriate to the case. State v. Malinski, 353 N.W.2d 207, 209 (Minn. App. 1984) (quotation omitted), review denied (Minn. Oct. 16, 1984). But, this court will not substitute its own judgment for that of the trial court regarding sentencing matters. State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994).
An upward departure from the sentencing guidelines must be supported by substantial and compelling circumstances which make the crime more serious than a typical case involving the same crime. Minn. Sent. Guidelines II.D; see State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992); see also State v. O'Brien, 369 N.W.2d 525, 527 (Minn. 1985). The sentencing guidelines contain a non-exclusive list of factors that may be used to justify an upward- or downward-durational departure from a presumptive sentence. Minn. Sent. Guidelines II.D.2.
Here, the district court based its upward double-durational departure on, among other things, the fact that appellant fled police at speeds in excess of 100 miles per hour and for an extended distance and put the lives and safety of others at significant risk. Appellant argues that he did not commit the fleeing offense in a manner more serious than usual and maintains that fleeing a peace officer necessarily involves excessive speeds. We disagree.
Generally, a sentencing court considers the course of conduct underlying the crime for which the defendant is being sentenced. State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). Elements of the offense are not proper factors to consider for an upward departure. State v. Yanez, 469 N.W.2d 452, 457 (Minn. App. 1991), review denied (Minn. June 19, 1991). But here, the distance covered or the actual speed at which an individual flees a peace officer is not an element of the offense. See Minn. Stat. § 609.487, subd. 3 (2000). While there is no benchmark to apply here, the record amply supports the district court’s characterization of appellant’s actions while fleeing the police as more serious than usual and is entitled to deference.
Appellant also contends that his lack of substantial capacity for judgment should have acted as a mitigating factor under Minn. Sent. Guidelines II.D.2.a(3). But a mitigating factor supporting a downward departure applies only if it tends “to excuse or mitigate the offender’s culpability for the offense.” State v. Esparza, 367 N.W.2d 619, 621 (Minn. App. 1985). The offense of fleeing requires only that the perpetrator know that he is fleeing a peace officer. Minn. Stat. § 609.487, subd. 3. The record is clear that whatever impairment appellant suffered from did not affect his understanding and knowledge that an officer was in pursuit and appellant was supposed to stop.
The record contains substantial and compelling reasons supporting the district court’s exercise of discretion in departing upward from the presumptive sentence.