This opinion will be unpublished and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
Filed March 2, 2004
Robert H. Schumacher, Judge
Michelle E. Moren, Roseau County Attorney, 606 Fifth Avenue Southwest, Room 10, Roseau, MN 56751 (for respondent)
John M. Stuart, State Public Defender, Melissa V. Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Souvanh Sonthana challenges the district court's upward dispositional and durational departure from the presumptive sentence for fourth-degree controlled substance crime and challenges the district court's order that he reimburse county interpreter and public defender funds. We reverse and remand.
Sonthana pleaded guilty to fourth-degree controlled substance crime. At the sentencing hearing James Novanchanh and Special Agent Ron Woolever testified to the following. In the fall of 2001, Sonthana gave Novanchanh a supply of methamphetamine worth approximately $10,000. In December 2001, Sonthana gave Novanchanh a second supply of methamphetamine, approximately one-half pound, for which Novanchanh was to pay Sonthana $6,000 at a later date. Novanchanh planned to sell the methamphetamine to individuals who he believed would then sell it to others.
On January 10, 2002, Woolever was involved in the execution of a search warrant at Novanchanh's residence. The search resulted in the confiscation of approximately 149 grams of methamphetamine. Novanchanh had sold approximately two ounces of the December 2001 methamphetamine supply. The remainder constituted the methamphetamine found as a result of the search on January 10.
After the search, Novanchanh agreed to cooperate with investigators. On January 10 and 11, Woolever monitored nine telephone calls between Novanchanh and Sonthana. During one conversation, Sonthana asked Novanchanh to send $1,200 by Western Union to Lexington, Nebraska in partial payment for the December 2001 supply of methamphetamine. Also during this conversation, Sonthana told Novanchanh he was going to drive to Minnesota to collect the remainder of the $6,000 owed. After the conversation, Woolever wired Sonthana $1,200 through Western Union.
On January 12 Sonthana arrived in Roseau, Minnesota and met with Novanchanh in Sonthana's car. During this meeting, Sonthana gave Novanchanh .6 grams of methamphetamine, and Novanchanh paid Sonthana $4,715 for the December 2001 supply. After this exchange, Woolever arrested Sonthana and searched his car. Woolever found a receipt showing Sonthana received $1,200 on January 11 from a Nebraska Western Union.
The complaint charged Sonthana with first-degree controlled substance crime for selling ten grams or more of methamphetamine between January 5 and 12 in violation of Minn. Stat. § 152.021, subd. 1(1) (2000). The amended complaint added a charge of fourth-degree controlled substance crime for selling methamphetamine, as classified under Minn. Stat. § 152.02, subd. 4 (schedule III), on January 12 in violation of Minn. Stat. § 152.024, subd. 1(1) (2000).
Sonthana pleaded guilty to the fourth-degree charge and in return the state dismissed the first-degree charge. According to the presentence investigation report, Sonthana's criminal history score is zero. The presumptive sentence for fourth-degree controlled substance crime with a criminal history score of zero is a stayed sentence of 12 months and 1 day. The presentence investigation report stated Sonthana (1) is a resident of Nebraska, (2) has a substantial prior record, primarily misdemeanor driving offenses and two concealed weapons violations, (3) is believed to be a high level methamphetamine dealer, and (4) supplied large quantities of methamphetamine to Novanchanh, who in turn distributed methamphetamine throughout Roseau County. The presentence investigation report notes the prosecution is seeking an upward departure and recommends, if the court follows the guideline sentence, Sonthana serve 75 days in the Roseau County Jail, pay a $1,000 fine plus appropriate surcharges, receive a chemical-use assessment and follow assessment recommendations, abstain from controlled substances and submit to testing to verify compliance, and be placed on probation for a period not to exceed 15 years. The district court gave notice that it was considering a sentencing departure.
The district court departed dispositionally and durationally from the presumptive sentence committing Sonthana to the custody of the Commissioner of Corrections for 30 months, with a minimum of 20 months in prison and the remaining time on supervised release. The court stated two reasons for the upward departure: (1) the offense committed by Sonthana "was more serious than the standard crime of Controlled Substance in the Fourth Degree, simple possession" due to Sonthana's involvement in multiple sales of methamphetamine and his higher position in a drug distribution network; and (2) Sonthana had "an extensive misdemeanor record consisting mostly of traffic offenses" and notably "prior misdemeanor convictions" and "weapons convictions." The court also ordered Sonthana to pay a $5,000 fine, reimburse $2,500 to the county interpreter fund, and reimburse $2,500 to the public defender fund. Sonthana appeals from the upward departures and orders to pay the interpreter and public defender funds.
1. A district court has broad discretion in sentencing criminal defendants. State v. Law, 620 N.W.2d 562, 564 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000). But a district court "has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present." State v. Spain, 590 N.W2d 85, 88 (Minn.1999); Minn. Sent. Guidelines cmt. II.D.01. "When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure." State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).
A court may impose an upward departure from the sentencing guidelines if the offense is a major controlled substance offense, identified as an offense related to trafficking in controlled substances under circumstances more onerous than the usual offense. Minn. Sent. Guidelines II.D.2.b.(5). A major controlled substance offense occurs where two or more of the following factors are present:
(a) the offense involved at least three separate transactions wherein controlled substances were sold, transferred, or possessed with intent to do so; or
. . . .
(e) the circumstances of the offense reveal the offender to have occupied a high position in the drug distribution hierarchy[.]
Id. When the record on appeal does not contain sufficient evidence that a drug offense qualifies as a "major controlled substance offense" under Minn. Sent. Guidelines II.D.2.b.(5), the supreme court has reversed the sentence and remanded with instructions to vacate the departure and impose the presumptive sentence under the guidelines. State v. McIntosh, 641 N.W.2d 3, 12 (Minn. 2002).
The district court stated an upward departure is appropriate in this case due to Sonthana's involvement in "multiple sales" of methamphetamine. The district court's analysis comports with aggravating factor (a) under the sentencing guidelines for a major controlled substance offense. Minn. Sent. Guidelines II.D.2.b.(5). Sonthana argues because he pleaded guilty to fourth-degree controlled substance offense for the transaction of .6 grams of methamphetamine on January 12, evidence pertaining to other transactions may not support a departure for purposes of factor (a). We agree.
Generally, a court may consider conduct underlying the charge of which the defendant is convicted for the basis of a durational departure. Taylor v. State, 670 N.W.2d 584, 588 (Minn. 2003). Reliance on other offenses that are not part of the charge and of which the defendant was not convicted are not a permissible basis for durational departure. Id. Moreover, reliance on allegations forming the basis of a charge that was dismissed as part of a plea bargain may not support an upward durational departure as this violates our decisions in State v. Womack, 319 N.W.2d 17, 19 (Minn. 1982), and State v. Lubitz, 472 N.W.2d 131, 133 (Minn. 1991), and has the effect of unfairly depriving a defendant of the benefits of the plea bargain. See State v. Arnold, 514 N.W.2d 801, 802 (Minn. 1994) (stating same).
Here, the district court determined Sonthana was "involved in multiple sales of methamphetamine" based on the exhibits and testimony presented during the sentencing hearing. The exhibits and testimony referred to three transactions between Sonthana and Novanchanh. The first transaction occurred during the fall of 2001 and was never charged. The second involved the supply of methamphetamine in December 2001, a sale that continued through January 12, 2002, and supports the first-degree charge in this case. The first-degree charge, however, was dismissed by the state. The third transaction involved the .6 grams of methamphetamine supplied on January 12 that gave rise to the charge to which Sonthana pleaded guilty. Because evidence of other transactions pertains to separately charged offenses dismissed as part of the plea bargain or offenses that were never charged and not the offense to which Sonthana pleaded guilty, the transactions cannot support a finding of factor (a) under the major controlled substance departure guidelines. Id.; see also McIntosh, 641 N.W.2d at 9 (because evidence of drug transactions did not relate to offense of conviction, but rather pertained to separate offenses, such evidence could not be used to support upward departure under major controlled substance departure guidelines).
The district court also stated an upward departure was appropriate because of Sonthana's higher position in a drug distribution network. The district court's analysis comports with aggravating factor (e) under the sentencing guidelines for a major controlled substance offense. Minn. Sent. Guidelines II.D.2.b.(5). Sonthana argues the record does not support the court's finding that he occupied a high position in the drug distribution hierarchy. We agree. It appears the district court based its finding on evidence that Sonthana repeatedly sold methamphetamine to Novanchanh, who in turn sold to a dealer, who then sold to users. There was, however, no evidence regarding Sonthana's proximity to the source of the drugs or where he procured them.
Thus, any conclusion as to Sonthana's relative rank in the distribution hierarchy is mere speculation and does not satisfy the requirement of substantial and compelling circumstances to justify an upward departure. See McIntosh, 641 N.W.2d at 10 (finding evidence that appellant supervised at least three others in drug sales and procured drugs in Chicago was insufficient to establish he held high position in drug distribution hierarchy).
Sonthana additionally argues the district court abused its discretion by relying on Sonthana's criminal history to support the upward departure. We agree. Here, the presentence investigation report shows Sonthana's criminal history score is zero. The presentence investigation report also notes Sonthana resides in Nebraska and has a prior record in Nebraska, including driving offenses, misdemeanor convictions, and concealed weapons violations. Although these offenses took place in Nebraska, they were included in computing Sonthana's criminal history index score. Minn. Sent. Guidelines II.B (stating components of criminal history index score include, among other things, prior felony records and prior misdemeanor and gross misdemeanor records), cmt. II.B.502 (stating "convictions from other jurisdictions must, in fairness, be considered in the computation of an offender's criminal history index score").
Because Sonthana's criminal history was already taken into consideration in determining his criminal history score, and that score in turn was used to determine the presumptive sentence, Sonthana's criminal history was not an appropriate basis for a durational departure. See State v. Gross, 332 N.W.2d 167, 169 (Minn. 1983) (holding because defendant's criminal history was already taken into consideration in determining criminal history score, it was not appropriate basis for durational departure).
Sonthana further argues the district court abused its discretion by imposing an upward durational departure that is greater than double the presumptive sentence. We agree. The guidelines permitted sentencing Sonthana to a duration of 12 months and 1 day without aggravating circumstances being required. The court imposed a sentence of 30 months, which is more than a double durational departure. The upper departure limit is generally double the maximum presumptive sentence length. See Neal v. State, 658 N.W.2d 536, 544 (Minn. 2003) (expressing general rule that when durational departure is justified by compelling factors, upper departure limit is double maximum presumptive sentence length).
In some cases, severe aggravating circumstances may permit greater than double durational departures up to the statutory maximum. State v. Williams, 608 N.W.2d 837, 840 (Minn.2000). "A determination whether severe aggravating circumstances exist justifying a greater-than-double durational departure (as opposed to aggravating circumstances, which warrant up to a double durational departure) must be based on our collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts." Perkins v. State, 559 N.W.2d 678, 692 (Minn. 1997) (quotations omitted). But severe aggravating circumstances do not exist in this case where the crime involved a transaction of .6 grams of methamphetamine with no extraordinary occurrences. Cf. State v. Glaraton, 425 N.W.2d 831, 834-35 (Minn. 1988) (holding greater-than-quadruple durational departure for first-degree criminal sexual assault was not excessive when defendant sexually assaulted victim in three different ways, engaged in gratuitous physical assault, inflicted permanent injury, made death threats, and inflicted psychological trauma).
Sonthana also argues that because the district court did not find him unamenable to probation its determination to depart upward on disposition was not justified. Although amenability may be cited as justification supporting a downward dispositional departure, a finding of unamenablity is not required to support an upward departure. See State v. Donnay, 600 N.W.2d 471, 473-74 (Minn. App. 1999), review denied (Minn. Nov. 17, 1999) (stating sentencing court may depart downward in its disposition where defendant is amenable to probation). Moreover, the same aggravating factors used to justify an upward departure on duration may justify an upward departure on disposition. State v. Woefel, 621 N.W.2d 767, 775 (Minn. App. 2001), review denied (Minn. March 27, 2001).
Here, as discussed above, there are no aggravating factors to support an upward durational departure. The district court provided no other reason for its dispositional departure. Thus, we conclude, there are no aggravating factors to support an upward dispositional departure.
2. The district court ordered Sonthana to pay $2,500 to the county interpreter fund. The parties agree that this was reversible error. See Minn. Stat. § 611.33, subd. 3 (2002) (providing interpreter fees and expenses must be paid by state courts); see also State v. Lopez-Solis, 589 N.W.2d 290, 294 (Minn. 1999) (holding translator and interpreter costs are not recoverable under prosecution costs statute).
3. The district court ordered Sonthana to pay $2,500 to the public defender fund without holding a hearing to determine his ability to pay. The parties agree that this was reversible error. See Minn. Stat. § 611.35, subd. 1 (2002); see also State v. Larson, 374 N.W.2d 329, 331-32 (Minn. App. 1985) (stating pursuant to section 611.35, subd. 1, hearing is required before defendant can be made to reimburse public defender); Foster v. State, 416 N.W.2d 835, 837 (Minn. App. 1987) (stating purpose of hearing is to ascertain whether defendant is able to pay and determine amount of costs).
We therefore reverse, vacating the imposed sentence and orders to pay the county interpreter and public defender funds, and remand to the district court for imposition of a stayed sentence of 12 months and 1 day, which is the guideline sentence in this case, and for determination of conditions for probation.
Reversed and remanded.