This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


James A. Allen,


Filed August 31, 2004


Minge, Judge


St. Louis County District Court

File No. K3-03-300904



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Alan Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)


John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge

Appellant challenges his sentence imposed for first-degree test refusal, arguing that the district court abused its discretion in sentencing him to prison, an upward dispositional departure.  Appellant argues that he is amenable to probation and that the district court erred in relying on out-of-state warrants that have not been pursued and prior probation violations.  We affirm.


            Following an incident on July 19, 2003, appellant was charged with one count of test refusal in the first degree, in violation of Minn. Stat. § 169A.20, subd. 2 (2002); one count of felony driving while impaired, in violation of Minn. Stat. § 169A.20, subd. 1(1) (2002); and one count of gross misdemeanor driving after cancellation, in violation of Minn. Stat. § 171.24, subd. 5 (2002).  On September 26, 2003, appellant pleaded guilty to test refusal in the first degree and the other charges were dismissed.  Appellant had one custody-status point and, under the sentencing guidelines, his presumptive sentence was 42 months with execution stayed.  At an October 24, 2003, sentencing hearing, the district court found that appellant was not amenable to probation and, following the recommendations of both the prosecutor and the presentence-investigation report (PSI), departed dispositionally by ordering appellant to a 42-month executed sentence.  Appellant appeals his sentence.



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); see 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 defendant’s amenability to probation and dangerousness to the community are proper factors to consider in determining whether to depart dispositionally.  State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990).

Appellant argues that the court departed dispositionally based on improper factors.  At sentencing, the district court judge stated:

I agree with probation that I have to consider the warrants.  It does indicate a history of absconding from probation, thirteen prior alcohol related offenses, even if some of them I ought to ignore, there is still more than enough.  It speaks of obvious problems with alcohol abuse and Mr. Allen, you just haven’t cared to do anything about it at this point in time; that shouts out pretty loudly to the court that you are not amenable to probation.  So, I am going to go along with the recommendations for those reasons.


Appellant argues that the district court’s ordering of an executed sentence is based on three inappropriate considerations: (1) the court’s subjective assessment that appellant was not amenable to probation; (2) the existence of warrants from foreign jurisdictions; and (3) appellant’s custody status.[1] 

First, citing to State v. Christopherson, 500 N.W.2d 794, 797 (Minn. App. 1993), appellant argues that a district court may not depart dispositionally based on its subjective assessment that a defendant is not amenable to probation.  In Christopherson, we reversed a defendant’s sentence when the district court’s determination that the defendant was not amenable to probation was contrary to the recommendations of the psychologist and the probation officer, and was unsupported by any evidence in the record.  Id.  But, the facts of the instant case are distinguishable. 

Here, the PSI notes appellant’s history of both refusing to participate in probation supervision and failing to comply with conditions of probation.  The PSI also notes that appellant was not honest about his drinking or previous offenses, minimized his chemical dependency issues, did not take responsibility for his actions by blaming others, and posed an “extremely high risk to public safety.”  The PSI concluded that appellant was not amenable to probation.  We conclude that the record amply supports the district court’s determination and that the court did not make its own subjective assessment of appellant’s amenability to probation as asserted by appellant.

Second, appellant argues that the district court improperly considered outstanding out-of-state warrants in justifying a dispositional departure because there is little information in the record regarding these warrants and because the warrants date back almost 10 years.  Appellant does not cite to any authority to support his argument.  Here, even though the district court stated that it had to consider the warrants, there exists a lengthy criminal, alcohol-related history in appellant’s record without consideration of the out-of-state warrants.  There is nothing in the record to suggest that these warrants were the sole basis for the district court’s dispositional departure and there is ample evidence remaining in the record to support the departure.   Accordingly, we conclude the district court did not abuse its discretion in this regard.

Finally, appellant argues that the district court improperly considered his custody status in departing dispositionally.  Appellant notes that custody status is already taken into account under the sentencing guidelines in determining appellant’s presumptive sentence.  SeeMinn. Sent. Guidelines II.B.  Here, appellant received one custody-status point for violating his probation.  But, the record reflects that the district court considered appellant’s custody status in its departure only to the extent that the PSI speaks of appellant’s history of absconding from supervision and failing to comply with the terms of previous probations.  This history strongly supports the district court’s conclusion that appellant is not amenable to probation, a factor that may justify such a dispositional departure, and we conclude that the district court did not improperly consider appellant’s custody status in deciding to depart dispositionally.

Because there is ample evidence in the record to support the finding that appellant was not amenable to probation, we conclude that the district court did not abuse its discretion.


[1] Pursuant to Minn. R. Civ. App. P. 128.05, appellant sent a letter dated June 30, 2004, advising the court of the United States Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).  But the Blakely case addresses aggravating factors related to the offense and used to support durational departures.  Id. at 2536-37.  The instant case before us, however, involves a dispositional departure based on amenability to probation.  This is a judicial sentencing factor that is not based on considerations that could be submitted to a jury.  Because appellant has not briefed this issue and because the consideration is amenability to probation, Blakely does not appear applicable, and we do not further address its implications.