This opinion will be unpublished and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

C9-02-314

 

 

State of Minnesota,

Respondent,

 

vs.

 

Hoang Muc Danh,

Appellant.

 

Filed July 2, 2002

Affirmed

Robert H. Schumacher, Judge

 

Olmsted County District Court

File No. K4011172

 

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, James E. Haase, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

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

 

Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.*


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Hoang Muc Danh appeals his sentence for fleeing a police officer, alleging that the district court abused its discretion by failing to depart from the presumptive sentence for the offense because of his drug addiction. We affirm.

FACTS

On April 5, 2001, stemming from events of that same day, Danh was charged with fleeing a police officer, driving through a red light, and driving after suspension. Pursuant to a plea agreement, Danh pleaded guilty to fleeing a police officer, a felony in violation of Minn. Stat. 609.487, subd. 3 (2000). The plea agreement did not include any specifics regarding sentencing, and Danh understood that the state would be seeking the presumptive sentence under the sentencing guidelines.

A presentence investigation was conducted, including a chemical dependency evaluation. Danh informed the evaluator that he had not used drugs in several months. Danh's criminal history score was recorded as a 9; the parties agree that the proper calculation is 7. With a criminal history score of 6 or more, the presumptive sentence for fleeing a police officer is 18-19 months executed. At sentencing Danh requested a dispositional departure from the presumptive sentence, asking for community-based treatment for his addiction to crack cocaine. The district court sentenced Danh to 18 months executed, the low end of the presumptive range. Danh appeals.


D E C I S I O N

The sentences set forth in the sentencing guidelines are presumed to be appropriate in each and every case. Minn. Sent. Guidelines II D. The district court "shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances." Id. The district court's decision to impose the presumptive sentence under the guidelines will not be reversed unless the appellant clearly demonstrates that this decision is an abuse of discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Although potentially possible to appeal successfully a refusal to depart from the presumptive sentence, "it would be a rare case which would warrant reversal of the refusal to depart." Id.

In the present case, the record supports the district court's decision to impose the presumptive sentence under the guidelines. The court was not required to accept Danh's argument that his apparent drug addiction warranted a departure. The district court did not abuse its discretion by imposing the presumptive sentence.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.