may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Chad D. Kraemer,
Ramsey County District Court
File No. K7032035
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-3076 (for respondent)
Douglas B. Meslow, Meslow & Olson, PLLC, 2125 Second Street, White Bear Lake, MN 55110 (for appellant)
Considered and decided by Anderson, Presiding Judge; Peterson, Judge; and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from a 60-month sentence for criminal vehicular homicide, appellant argues that there are not substantial and compelling circumstances to support the 12-month upward departure imposed by the district court and that mitigating factors required a downward departure. We reverse the upward departure and remand for imposition of the presumptive sentence.
After consuming several alcoholic beverages, appellant Chad D. Kraemer drove his pickup truck on Highway 35E and, while exceeding the speed limit, crashed into the rear of a car driven by Steven Schwartz. Schwartz’s vehicle, in turn, crashed into a vehicle driven by Lisa Kunz. Schwartz and Kunz had slowed down or stopped for road construction. As a result of the crash, Schwartz died, and Kunz was injured. Appellant’s alcohol concentration at the time was .16.
Appellant was charged with criminal vehicular homicide in violation of Minn. Stat. § 609.21, subd. 1(2) (2002), for the death of Schwartz, and he later pleaded guilty. Under the Minnesota Sentencing Guidelines, appellant’s presumptive sentence was 48 months executed. The state moved for an upward durational departure, and appellant moved for a downward departure. Appellant was not charged with any offense based on Kunz’s injuries.
At the sentencing hearing, Kunz provided a victim-impact statement. Kunz told of her physical injuries, the emotional consequences she suffered, and the financial impact the accident had on her. The district court inquired of the parties how Kunz’s injuries should be factored into appellant’s sentence. The state argued that Kunz’s injuries were an appropriate aggravating factor to consider and that at the time the state charged appellant, the extent of Kunz’s injuries was not known. Appellant argued that caselaw did not support considering Kunz’s injuries as an aggravating factor.
The district court imposed a 60-month sentence, which was a 12-month upward departure from the presumptive sentence. In imposing the sentence, the district court stated:
For the record then, this is somewhat of a departure from the Minnesota Sentencing Guidelines. The reason, the specific reason for the departure is that while Ms. Kunz was not named as a victim in this particular offense by way of a separate charge, there was clearly not only a great impact upon Mr. Schwartz because of his death but upon Ms. Kunz as a result of this accident, if we can call it an accident, the crash, again, as evidenced from what she stated here today and the damage done to her motor vehicle at the scene.
The court also stated that without the mitigating factors—appellant’s youth, remorse, completion of treatment, cooperation with police, and support of family and friends—appellant’s sentence would have been higher. This appeal from appellant’s sentence followed.
Appellant argues that the district court impermissibly based the 12-month upward departure on the impact that the crash had on Kunz, rather than on appellant’s conduct.
The purpose of the Minnesota Sentencing Guidelines is to establish rational and consistent standards in order to reduce sentencing disparity. Minnesota Sent. Guidelines I. “The purposes of the sentencing guidelines will not be served if the trial courts generally fail to apply the presumptive sentences found in the guidelines.” State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). Departures from the guidelines are intended for “a small number of cases, and each departure must be based on the offense of conviction rather than charges that were dropped or never alleged.” State v. Misquadace, 644 N.W.2d 65, 68 (Minn. 2002). In determining whether to depart durationally, a district court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). “When a district court departs, it must articulate substantial and compelling reasons justifying the departure.” State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999). The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
The district court’s comments indicate that it based its decision to depart on the impact that the crash had on Kunz. “Exposure of others to a criminal act has been held a proper aggravating factor where the others suffered damage, including psychological trauma.” State v. Bicek, 429 N.W.2d 289, 293 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988); see also State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982) (robbery was particularly outrageous because it was committed in day-care center where children were present); State v. Anderson, 361 N.W.2d 896, 899 (Minn. App. 1985) (affirming departure where defendant drove without license, with .15 BAC, ran through red light at excessive speed killing other driver, and headed to Florida, implicitly threatening lives of many people).
But, if “evidence only supports [a] defendant’s guilt of some other offense but does not support the conclusion that the defendant committed the instant offense for which he is being sentenced in a particularly serious way, then it cannot be relied upon as a ground for departure.” State v. Ott, 341 N.W.2d 883, 884 (Minn. 1984); see also State v. Womack, 319 N.W.2d 17, 19-20 (Minn. 1982) (holding departure improper where defendant pleaded guilty to charged offense in exchange for dismissal of second charge, but trial court sentenced defendant as if convicted of both charges).
We conclude that the impact that the crash had on Kunz is not a proper aggravating factor that supports an upward departure in the sentence for the offense against Schwartz because the impact on Kunz was not caused by exposure to the offense against Schwartz. Rather, Kunz was a separate victim of appellant’s conduct, and the impact that the crash had on Kunz was primarily the result of Kunz’s car being struck during the crash.
The state argues that Kunz’s injuries were properly considered as an indicator of appellant’s disregard for the safety of others. A callous disregard for the safety of others may justify an upward departure. State v. Herrmann, 479 N.W.2d 724, 731 (Minn. App. 1992) (affirming departure where defendant drove despite warnings of others and knowing he was drunk, drove in violation of probation and without a valid license, and had open container of alcohol in stolen car), review denied (Minn. Mar. 19, 1992); see also State v. Wilkinson, 539 N.W.2d 249, 251, 253-54 (Minn. App. 1995) (affirming upward departure where defendant, who was involved in a snowmobile accident while intoxicated, had two prior DWI convictions and was chemically dependent, fled scene as victim lay dying, and hid from police for several hours).
Although appellant’s conduct indicates a disregard for the safety of others, the issue is whether appellant’s conduct was “significantly more . . . serious than that typically involved” in the commission of criminal vehicular homicide. Broten, 343 N.W.2d at 41. At the time of the crash, appellant had no criminal record and his driving record contained one non-alcohol-related careless-driving offense. The record does not support a determination that appellant’s disregard for the safety of others was significantly more serious than that typically involved in criminal vehicular homicide.
Also, the record demonstrates that appellant did not commit the offense for which he was sentenced in a particularly serious way. Appellant was intoxicated, but that is an element of the offense. Minn. Stat. § 609.21, subd. 1(2) (2002); see State v. VanZee, 547 N.W.2d 387, 392 (Minn. App. 1996) (stating element essential to crime cannot be aggravating factor), review denied (Minn. July 10, 1996). And appellant was negligent, but that is also an element of the offense. Minn. Stat. § 609.21, subd. 1(2). There was evidence that at the time of the crash, appellant was exceeding the speed limit by five to ten miles per hour. But when speeding has supported an upward sentencing departure, the speeding was much more excessive. See State v. Loitz, 366 N.W.2d 744, 745-47 (Minn. App. 1985) (affirming upward departure where defendant drove 77 miles per hour on busy 30-mile-per-hour street with infant child in car), review denied (Minn. July 17, 1985); Anderson, 361 N.W.2d at 895, 899 (affirming upward departure where defendant had three prior DWI convictions, drove on revoked license, ran red light at more than 55 miles per hour, and tried to get passenger to take blame). We, therefore, conclude that there are not substantial and compelling circumstances that support the 12-month upward departure imposed by the district court.
Citing State v. Trog, appellant argues that the district court’s acknowledgement of mitigating factors required it to impose a sentence less than the 48-month presumptive term. 323 N.W.2d 28 (Minn. 1982). In Trog, the supreme court delineated factors that may be used to determine a defendant’s amenability to probation, 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.” Id. at 31. Amenability to probation may provide a basis for a dispositional departure, but it does not entitle a defendant to a departure. See Herrmann, 479 N.W.2d at 728-29 (explaining distinction between durational and dispositional departures and concluding that the district court erred in considering defendant’s amenability to probation when deciding whether to extend period of incarceration). Also, the presence of mitigating factors “does not obligate the court to . . . impose a shorter term than the presumptive term.” State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001) (quotation omitted), review denied (Minn. Aug. 22, 2001).
Appellant also argues that his case is similar to State v. Donnay, 600 N.W.2d 471 (Minn. App. 1999), review denied (Minn. Nov. 17, 1999), in which the defendant received a dispositional departure. Donnay pleaded guilty to six counts of criminal vehicular operation after two passengers in the car he was driving were killed as a result of a crash that occurred while he was driving under the influence of alcohol. Id. at 473. The district court stayed Donnay’s sentence for ten years and placed him on probation based on Donnay’s remorse, lack of substance-abuse problems and prior record, amenability to probation, and the recommendation of the presentence investigation. Id. at 473-74. This court affirmed the dispositional departure, holding that the Trog factors relevant to determining a defendant’s amenability to probation were met and supported by the record. Id. at 474.
Appellant contends that like Donnay, he meets the Trog factors: he is 24 years old, has no prior criminal record, is remorseful and cooperative, his attitude while in court was at all times cooperative, and he established that he had abundant support from friends and family. However, neither Donnay nor Trog compel a district court to depart from a presumptive sentence. In both Donnay and Trog, a decision to stay execution of a sentence in favor of probation was affirmed; neither decision reversed a district court decision not to depart downward. Trog, 323 N.W.2d at 31; Donnay, 600 N.W.2d at 475. In light of our standard of review and relevant caselaw, we conclude that the district court did not abuse its discretion by not imposing a sentence less than the presumptive sentence.
Because the record does not demonstrate that appellant’s conduct was significantly more serious than that typically involved in criminal vehicular homicide, we reverse the 12-month upward departure imposed by the district court and remand to the district court for imposition of the presumptive sentence.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 “A person is guilty of criminal vehicular homicide resulting in death . . . if the person causes the death of a human being not constituting murder or manslaughter as a result of operating a motor vehicle . . . in a negligent manner while under the influence of . . . alcohol[.]” Minn. Stat. § 609.21, subd. 1(2)(i).