This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-01-1159

 

State of Minnesota,

Respondent,

 

vs.

 

Friends Sterling Burwell, IV,

Appellant.

 

Filed December 18, 2001

Affirmed

Mulally, Judge*

 

Olmsted County District Court

File No. K9003554

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street Southeast, 3rd Floor, Rochester, MN 55904 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N

MULALLY, Judge

            Appellant challenges his sentence for conspiracy to commit first-degree controlled substance offense, arguing that the sentencing court abused its discretion in declining to depart dispositionally despite appellant’s amenability to treatment, his expression of remorse, and his youth.  Because we conclude that the district court did not abuse its discretion by denying appellant’s request to depart dispositionally, we affirm.

FACTS

            In November 2000, the Olmsted County Sheriff’s Department received a tip alleging that appellant, Friends Sterling Burwell, and two of his associates were manufacturing methamphetamine at a residence located in Byron, Minnesota.   Investigators arrived at the property to execute a search warrant and observed appellant’s associate, Steven Thomsen, removing a pair of white gloves as he was leaving a shed located on the property.  Investigators discovered a generator hose, an item known to be associated with manufacturing methamphetamine, when they searched Thomsen, who informed the investigators that appellant was inside the residence.       Investigators found chemicals and items associated with operation of a clandestine methamphetamine lab throughout the property and in appellant’s car; including the drug methamphetamine.  The investigators took appellant into custody.

            Appellant was charged with first-degree controlled substance crime, conspiracy to commit first-degree controlled substance crime, fifth-degree controlled substance crime, and possession of anhydrous ammonia in an improper container.  Appellant pleaded guilty to the conspiracy charge.  In exchange, the state agreed to dismiss the other charges and to recommend a sentence at the low end of the presumptive sentence range for the conspiracy charge.  The state also agreed that appellant could seek a downward departure.  The sentencing court accepted the plea and ordered a presentence investigation (PSI).

            Before sentencing, appellant moved for a downward dispositional departure.  The probation officer who conducted the PSI noted that there were no “offense-specific factors in favor of a downward departure” and that it was arguable that grounds for an upward departure existed because the methamphetamine lab manufactured drugs for others.  But the probation officer concluded that appellant was amenable to treatment and recommended that appellant be sentenced to a 98-month prison term, that execution be stayed for a probationary period of 30 years, that appellant serve nine months of local jail time and, among other conditions of probation, that he enter into and successfully complete chemical dependency treatment.[1]

            At sentencing, appellant emphasized the probation officer’s report notes.  Specifically, appellant relied on the probation officer’s determination that appellant had no prior opportunities at local drug treatment or programming, is amenable to treatment, and had a moderate risk of reoffending.  Appellant requested that the court dispositionally depart downward by staying the prison term and placing appellant on probation.  The state argued that the nature of the offense, conspiracy to manufacture methamphetamine, was qualitatively different from a possession offense, and that treatment was not an adequate means of addressing it.  The state asked the court to consider the impact of the offense upon the community, particularly the dangerous nature of methamphetamine labs, and emphasized that the probation officer had not found “offense-specific factors” supporting a downward departure. 

            The court denied appellant’s motion for a downward departure, stating that it could not find substantial and compelling grounds to justify it.  The court emphasized that the crime was not based on addiction, but rather on making the substance to sell to others.  The court sentenced appellant to an 81-month prison term, which is the low end of the presumptive range for the conspiracy offense, and executed the sentence.

D E C I S I O N

Appellant argues that the district court abused its discretion in declining to depart dispositionally despite appellant’s amenability to treatment, his expression of remorse, and his youth.  He also relies on the fact that the probation officer found that appellant had no prior opportunity for local drug treatment or programming, and is amenable to treatment.   Furthermore, appellant urges that his risk of further offending is viewed as moderate, as measured by the Level of Service Inventory, which appellant contends demonstrates that he does not have a high likelihood of reoffending.  Appellant also argues that, because he had almost a constant involvement with chemicals throughout his life and has a problem with abuse of those chemicals, treatment, not prison, would be the best option for himself and the public.  Based on these factors, appellant contends that the sentencing court should have followed the probation officer’s recommendation and stayed appellant’s 81-month prison term and sentenced appellant to probation and treatment because that would better protect the public. 

A sentencing court “has broad discretion to depart only if aggravating or mitigating circumstances are present.”  State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).  In other words, the sentencing court “shall use the presumptive sentence unless the individual case involves substantial and compelling circumstances.”  State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981) (emphasis added) (quotation omitted).  An appellate court normally will not review the sentencing court’s exercise of its discretion where the sentence is within the presumptive range.  State v. Witucki, 420 N.W.2d 217, 223 (Minn. App. 1988), review denied (Minn. Apr. 15, 1988). 

A decision whether to depart dispositionally focuses “more on the defendant as an individual and on whether the presumptive sentence would be best for him and for society.”  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).  The sentencing court may dispositionally depart from the sentencing guidelines if the defendant is “particularly amenable to probation or if offense-related mitigating circumstances are present.”  State v. Love, 350 N.W.2d 359, 361 (Minn. 1984).  A finding of amenability, however, is not required.  State v. McCalister, 462 N.W.2d 407, 409 (Minn. App. 1990).  Furthermore,

[n]umerous factors, including the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family, are relevant to a determination whether a defendant is particularly suitable to individualized treatment in a probationary setting.

 

State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). 

Appellant’s main argument focuses on his amenability to treatment as a mitigating factor that supports downward departure.  Appellant, however, was not arrested because he used methamphetamines.  Instead, appellant was arrested because he ran clandestine laboratories to manufacture methamphetamines and to distribute the drug to other people.  While treatment may help to prevent personal abuse and thus, perhaps, possession of a drug, it does not restrain an individual from manufacturing or selling it to the public.  See State v. Wright, 310 N.W.2d 461,463 (Minn. 1981) (holding district court did not abuse its discretion by basing depositional departure on chance that defendant might mend his ways if put into treatment but might be victimized in prison).  In addition, the mere fact that a mitigating factor is present does “not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.”  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).

            The sentencing court relied on the fact that appellant was involved in multiple labs over several years.  Also, methamphetamine is an insidious drug that can cause psychosis and violence. The methamphetamine labs require chemicals that are highly flammable, therefore methamphetamine labs are dangerous.  Only in a “rare case” would a sentencing court’s refusal to depart warrant reversal.  Id.  But, the circumstances in this case do not demonstrate the substantial and compelling circumstances necessary to support a departure from the presumptive sentence, and do not indicate that this set of circumstances is the “rare case.”  Given the size and duration of appellant’s criminal enterprise, coupled with how dangerous methamphetamine labs and the drugs themselves can be to the public, the sentencing court was not obligated to rely on appellant’s amenability to treatment as a mitigating factor.  Accordingly, the sentencing court did not abuse its discretion in refusing appellant’s request for a downward departure.

            Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.

 

[1] The 98-month term recommended by the probation officer assumed one criminal history point for a severity level VIII offense.  The state informed the court that the history point was based on an out-of-state conviction that had not been documented to its satisfaction.  In light of this, the state advised the court that a zero criminal history score was appropriate.