This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed August 19, 2003
Clearwater County District Court
File No. K602177
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Kip O. Fontaine, Clearwater County Attorney, 213 Main Avenue North, Dept. 301, Bagley, MN 56621 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.
Appellant challenges the district court’s imposition of a double upward durational departure on its own motion, arguing the court abused its discretion because (1) the prosecutor agreed in the plea agreement that appellant would receive the low end of the presumptive sentence range; (2) the departure is disproportionate to other sentences recently imposed for criminal vehicular homicide; and (3) the vulnerability of the victim, appellant’s position of parental authority, her alcohol concentration of .23, the trauma to the two other children in the vehicle, and the fact appellant was on probation for a prior DWI did not constitute aggravating circumstances warranting the departure. Because the district court did not abuse its discretion, we affirm.
On June 12, 2002, with a blood alcohol concentration of .23, appellant Christine LaFontaine drove her car into a bridge abutment in Clearwater County. LaFontaine’s 11-year-old-son, a passenger in the front seat, died as a result of the collision. LaFontaine’s four-year-old daughter and another child were in the back seat and were unharmed. One of the deputies on the scene found a partially full beer can on the driver’s side floor.
LaFontaine had previously been convicted of driving while under the influence of alcohol on January 21, 1996, and her license was revoked for having an alcohol concentration of .10 or more. At the time of the collision, there was an arrest warrant for LaFontaine for violating probation on the January 1996 offense. The probation violation occurred when LaFontaine failed to attend two classes required as a condition of her probation.
LaFontaine was charged with three counts of criminal vehicular homicide; two counts of first-degree driving while impaired; four counts of second-degree driving while impaired; two counts of child endangerment; and one count of driving after revocation.
On July 17, 2002, the prosecuting attorney sent a letter to defense counsel proposing that LaFontaine plead guilty to one count of criminal vehicular homicide and two counts of child endangerment, and be sentenced to the presumptive guidelines sentence of 48 months, with the child endangerment sentences to run concurrently. However, the prosecuting attorney also stated in the letter that if the matter proceeded to trial and the state prevailed, he would argue for a double upward departure, resulting in a sentence of 96 months.
LaFontaine responded that she would agree to the prosecuting attorney’s proposal with the provision that she be sentenced to 44 months. The prosecuting attorney agreed to the 44-month sentence and LaFontaine pleaded guilty in accordance with the plea agreement. Before the sentencing hearing, the district court judge filed a departure notice.
At the sentencing hearing, the court told LaFontaine that it would not accept the sentencing portion of the plea agreement and asked if she wanted to withdraw her guilty pleas. LaFontaine chose to maintain her guilty pleas. The prosecuting attorney asked the court to sentence LaFontaine according to the plea negotiations, acknowledging that it was the court’s prerogative not to do so.
Several family members presented testimony on LaFontaine’s behalf, including her mother, husband, and sister. After hearing from all of the witnesses and LaFontaine, and arguments of counsel, the district court sentenced LaFontaine to 96 months in prison, a double upward departure from the presumptive sentence of 48 months. LaFontaine was also sentenced to concurrent one-year terms on the child endangerment convictions. The district court provided written reasons, as required, in support of its departure from the sentencing guidelines.
This appeal follows.
When substantial and compelling circumstances are present, a district court has broad discretion to depart from the presumptive guidelines and will not be reversed on appeal absent an abuse of discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). A departure from the presumptive guidelines sentence must be explained by written reasons specifying the circumstances that justify the departure. Minn. Sent. Guidelines II.D.
The Minnesota Sentencing Guidelines provide a nonexclusive list of factors the district court may use as reasons for departure. Minn. Sent. Guidelines II.D.2.; State v. Case, 350 N.W.2d 473, 475 (Minn. App. 1984). The general rule is that when aggravating factors justify upward departure, “the upper limit will be double the presumptive sentence length.” State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).
LaFontaine’s offense has a severity level of VII and the presumptive sentence for this offense by someone with her criminal history score of zero is 48 (44-52) months in prison. The district court imposed a sentence of 96 months, which is double the presumptive sentence and thus within the range of generally permissible departures.
Here, the court provided a number of aggravating factors in its report in support of the departure. The court cited the following five reasons:
1. The defendant violated a position of confidence or trust (defendant is the parent of the victim). Defendant created and exposed the victim to risk of harm and violated her fiduciary duty to protect the victim from harm.
2. The defendant had a high alcohol concentration (.23).
3. The offense had an adverse impact on others. There were two other children in the vehicle who will experience trauma in regard to the accident and death of the victim.
4. The victim was vulnerable as a child placed in the front seat of the vehicle.
5. The defendant was on probation for a prior DWI and at the time of the offense there was an outstanding warrant for a probation violation.
LaFontaine argues that (1) her sentence is unjustifiably disparate from other sentences for criminal vehicular homicide and fails to consider her family, (2) the sentence unduly exaggerates her criminality, and (3) the departure reasons are not substantial and compelling reasons justifying a departure.
LaFontaine compares her sentence with six other cases where upward departure sentences were imposed for criminal vehicular homicide and argues that “[n]ot one of the six people with zero criminal history scores was given a double durational departure.” LaFontaine asserts that the greatest sentence received was “72 months—two years less than [her] sentence.”
LaFontaine specifically focuses her comparison on the case of Regina Shaddrick who, while intoxicated, ran into a man and dragged him 100 yards, resulting in his death. In that case the defendant received 72 months; the case was not appealed and is of no precedential value. This court has made it clear that a sentence imposed in another case, but not challenged on appeal, is of no value in assessing the propriety of a sentence in another case. State v. Beard, 574 N.W.2d 87, 92-93 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998). Even if the case were of any precedential value, its facts are significantly different in that the victim was an adult and was not a circumstance where the victim held the defendant in a position of confidence or trust, the defendant did not violate a fiduciary duty to protect the victim from harm, and the victim was not particularly vulnerable. Furthermore, a defendant cannot demand the same sentence as others convicted for the same offense. State v. Bobo, 414 N.W.2d 490, 494 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987).
LaFontaine also argues that the district court should have considered that she has other surviving children and that her mother, sister, and her mother-in-law all asked the court to consider these children. The court considered LaFontaine’s surviving children when it stated in its reasons for its departure that
[t]he offense had an adverse impact on others * * * [t]here were two other children in the vehicle who will experience trauma in regard to the accident and death of the victim.
The court determined that LaFontaine’s responsibility for her surviving children was not a factor to mitigate here; rather, the presence of children in the vehicle, including her own, was a factor that aggravated the situation.
A defendant’s responsibility for other children is not listed as a mitigating factor. Minn. Sent. Guidelines II.D.2.a. But the impact of an offense on children other than the victim may serve as an aggravating factor. See State v. Bingham, 406 N.W.2d 567, 570 (Minn. App. 1987) (psychological and emotional injury to family may justify upward departure). Because her responsibility for other children does not require a mitigation of her sentence, LaFontaine has not shown that the district court abused its discretion.
Relying on State v. Norris, 428 N.W.2d 61, 71 (Minn. 1988), LaFontaine next argues that her sentence is excessive because it unduly exaggerates her criminality. But she fails to provide any analysis to show how Norris, when applied to her case, would result in a conclusion that her sentence unduly exaggerates her criminality. Thus, this claim is considered waived. See In re Robb, 622 N.W.2d 564, 574 (Minn. App. 2001) (noting claim of error unsupported by argument or legal authority is deemed waived), review denied (Minn. Apr. 17, 2001).
LaFontaine argues that the district court’s reasons for departure are not substantial and compelling and that there were a number of reasons that mitigated her conduct. She asserts that “other than being intoxicated, there was no evidence that she was driving in a reckless fashion or taking unnecessary risks.” But LaFontaine does not provide any case law in support of this proposition nor dispute specifically any of the five reasons relied upon by the court for departure.
The district court justified its upward departure with five distinct reasons, specifically stating as one reason that LaFontaine “violated a position of confidence or trust (defendant is the parent of the victim).” The sentencing guidelines provide for an upward departure when the “victim was particularly vulnerable due to age, * * * which was known or should have been known to the offender.” Minn. Sent. Guidelines II.D.2.b.(1).
No factors provided in the guidelines allow mitigation because the offender was not reckless or did not take unnecessary risks when committing their crime. Minn. Sent. Guidelines II.D.2.a. In addition, the very nature of driving while intoxicated is, itself, driving in a reckless fashion and taking unnecessary risks.
Here, LaFontaine’s 11-year-old-son was particularly vulnerable due to his age and the fact that he had little, if any, choice as to whether to be in the car with his mother when she was driving with a blood alcohol of .23. As the victim’s mother, LaFontaine should have known her son’s vulnerability. In addition, there are no factors in the record that substantially merit mitigation.
Considering the broad discretion afforded sentencing courts and because the court provided adequate written reasons on the record to justify a departure, the departure is permissible under the sentencing guidelines. Thus, we conclude that the district court did not abuse its discretion in sentencing LaFontaine to an upward departure of 96 months.
Finally, we have fully considered all issues raised by LaFontaine in her pro se brief and conclude that they are without merit.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.