This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Dustin Lee Grinder,
Clay County District Court
File No. K4031345
John M. Stuart, State Public Defender, Richard A. Schmitz, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Lisa N. Borgen, Clay County Attorney, Brian J. Melton, Assistant County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent)
Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Wright, Judge.
Appellant challenges his sentence for attempted first-degree manufacture of a controlled substance, arguing that (1) he should be sentenced under a new statute prescribing a shorter sentence for attempted methamphetamine manufacture, which became effective before his conviction was final; and (2) the district court abused its discretion in denying his motion for a downward departure because it relied on the erroneous representation that the prosecutor had already reduced appellant’s charge. We affirm.
In the early morning hours of July 24, 2003, Moorhead law enforcement stopped appellant Dustin Grinder on his way into Minnesota from North Dakota. The police arrested Grinder on an outstanding warrant, searched his vehicle, and discovered vapor inhalers, lithium batteries, a propane torch, a clear glass jar containing a clear liquid, and a second clear jar containing a white powdery substance believed to be crushed ephedrine pills.
On July 25, 2003, Grinder was charged with attempted first-degree manufacture of a controlled substance, a violation of Minn. Stat. §§ 152.021, subd. 2a(a), 609.17 (2002). Nothing in the district court record indicates that Grinder was charged with any other crime. Grinder pleaded guilty to the charged offense. In exchange for Grinder’s guilty plea, the state agreed that Grinder’s sentence would not exceed 49 months’ imprisonment, leaving Grinder free to argue for a downward departure.
A newly enacted statute criminalizing possession of methamphetamine precursors with the intent to manufacture methamphetamine and prescribing a three-year maximum sentence became effective on August 1, 2003. Minn. Stat. § 152.021, subds. 2a(b), 3 (Supp. 2003); 2003 Minn. Laws 1st Spec. Sess. ch. 2 art. 8, §§ 2, 3. At the sentencing hearing, Grinder moved for a downward departure, requesting to be sentenced in accordance with the new statute, rather than in accordance with the statutes under which he was charged and convicted. Grinder also sought a probationary sentence and treatment. The district court denied Grinder’s motion, finding that (1) the new statute did not apply because it was not in effect on July 24, 2003, the date of Grinder’s offense; and (2) the state had already reduced Grinder’s charge from “manufacture” to “attempted manufacture.” The district court imposed the presumptive guideline sentence of 49 months’ imprisonment. This appeal followed.
Grinder first argues that the district court erred in refusing to sentence him pursuant to Minn. Stat. § 152.021, subds. 2a(b), 3 (Supp. 2003), a new provision that went into effect before his conviction was final but after Grinder was charged with attempted methamphetamine manufacture, in violation of Minn. Stat. §§ 152.021, subd. 2a(a), 609.17 (2002). Grinder relies on State v. Coolidge, 282 N.W.2d 511, 514-15 (Minn. 1979), to argue that he should be sentenced under this recently enacted statute because it is an expression of the legislature’s intent to mitigate the penalty for attempted methamphetamine manufacture. Statutory interpretation presents a question of law, which we review de novo. State v. Anderson, 666 N.W.2d 696, 698 (Minn. 2003).
As a general rule, the state has the discretion to prosecute under any statute in effect at the time of the offense conduct for which sufficient evidence supports the elements and to seek a penalty commensurate with the offense. State v. Lee, 683 N.W.2d 309, 315 (Minn. 2004). Furthermore, “[n]o law should be construed to be retroactive unless clearly and manifestly so intended by the legislature.” Minn. Stat. § 645.21 (2002). In Coolidge, however, the Minnesota Supreme Court held that, when a defendant is convicted under a statute that is subsequently repealed or amended so as to mitigate punishment, the more recent statute is to be applied to the acts committed before its effective date, provided no final judgment has been entered. 282 N.W.2d at 514-15. The holding in Coolidge is limited. Its application is confined to circumstances when the statute under which the defendant was convicted was subsequently amended to provide a more lenient sentence. Id. at 514.
Coolidge is inapplicable here because the statute under which Grinder was convicted has not been amended to provide a more lenient sentence. Grinder was charged with attempted first-degree manufacture of methamphetamine, in violation of Minn. Stat. §§ 152.021, subd. 2a(a) (manufacture of “any amount” of methamphetamine), 609.17 (attempt). The Minnesota legislature has neither repealed nor amended either statutory provision to mitigate the punishment for attempted first-degree manufacture of a controlled substance.
Rather than amending subdivision 2a(a), which proscribes the manufacture of any amount of methamphetamine, the Minnesota legislature enacted a new law codified at Minn. Stat. § 152.021, subd. 2a(b), which proscribes attempted manufacture of methamphetamine by possessing the precursors to methamphetamine manufacture. Subdivision 2a(b) provides in relevant part: “Notwithstanding paragraph (a) and section 609.17, a person is guilty of attempted manufacture of methamphetamine if the person possesses any chemical reagents or precursors with the intent to manufacture methamphetamine.” (Emphasis added.) The “notwithstanding” language demonstrates that the legislature was not repealing or amending sections 152.021, subdivision 2a(a), and 609.17. Rather, the legislature was creating an additional attempted manufacture-of-methamphetamine crime that is different from the general attempted methamphetamine manufacture offense charged here.
Analyzing the elements of these two attempt laws makes clear that the statutes criminalize different conduct, rather than reducing a penalty for the same conduct. Under Minn. Stat. § 609.17, the defendant must take “a substantial step” toward the commission of the intended crime. “Mere preparation” is not sufficient. State v. Lores, 512 N.W.2d 618, 620 (Minn. App. 1994), review denied (Minn. Apr. 28, 1994). The corresponding maximum sentence is half of the maximum for the substantive crime—in this case, 15 years, rather than 30 years. Minn. Stat. §§ 609.17, subd. 4(2), 152.021, subd. 3(a) (2002). In contrast, under Minn. Stat. § 152.021, subd. 2a(b), the defendant need only possess precursor materials with the intent to manufacture. A substantial step is not necessary. Indeed, this statute was specifically enacted to criminalize “mere preparation.” And the maximum potential penalty for this offense is three years’ imprisonment. Minn. Stat. § 152.021, subd. 3(a). The statute under which Grinder was convicted requires the state to prove that the offender completed a substantial step toward commission of the offense, justifying a higher penalty.
Because the offenses have different elements, Coolidge is inapposite. Accordingly, the district court did not err in sentencing Grinder pursuant to the statutes under which he was charged and convicted.
Grinder also argues that the district court abused its discretion in denying his motion for a downward departure by relying in part on the prosecutor’s erroneous representation that the charge was reduced from methamphetamine manufacture to attempted methamphetamine manufacture.
The decision to depart from the 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). It is a very rare case that warrants reversal of the refusal to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
When substantial and compelling mitigating circumstances exist, the district court may depart from the sentencing guidelines. Minn. Sent. Guidelines II.D. But the district court is not compelled to depart merely because an argument for doing so exists. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).
The prosecutor’s statement at sentencing that Grinder’s charge had been reduced from methamphetamine manufacture to attempted methamphetamine manufacture is without any evidentiary support in the record. Indeed, the state failed to address this claim on appeal. The prosecutor’s misrepresentation does not warrant reversal of the district court’s refusal to depart, however, because Grinder presented no “substantial and compelling circumstances” in support of his motion. The only meaningful basis for departure that Grinder presented to the district court was the sentencing argument previously addressed and rejected. Notwithstanding the district court’s reliance on the prosecutor’s misrepresentation, the absence of substantial and compelling circumstances in the record justifying a departure makes reversal unwarranted.
 The legislature added subdivision 2a(b) to enhance law enforcement’s ability to address the growing rate of methamphetamine manufacture in rural Minnesota by making it easier to prosecute individuals who intend to manufacture methamphetamine and by deterring manufacturers in neighboring states from coming to Minnesota to build methamphetamine labs. Hearing on H.F. 416 Before the House Comm. on Judiciary Policy and Finance (Mar. 19, 2003). Law enforcement officials testified at a legislative hearing regarding problems encountered when individuals possessed several chemicals necessary to manufacture methamphetamine and admitted to intending to produce it. Id. Because a “substantial step” was not made, these individuals could not be charged with attempted manufacture of methamphetamine under Minn. Stat. §§ 152.021, subd. 2a(a), 609.17. Id. In response to this legal impediment, section 152.021, subdivision 2a(b), was enacted to criminalize “mere preparation” with intent to manufacture methamphetamine. Id.
Even if the Minnesota legislature intended to mitigate the punishment for all offenses related to attempted manufacture of methamphetamine, Grinder would not reap the benefits of the amendment because 2003 Minn. Laws 1st Spec. Sess. ch. 2, art. 8, §§ 2, 3, contain an effective-date provision, which would prohibit retroactive application. See State v. McDonnell, 686 N.W.2d 841, 846 (Minn. App. 2004) (holding that if new legislation contains an effective-date provision that states to which violations the amendment applies, that provision controls as legislative intent that the new statute should not apply retroactively, even if judgment is not yet final), review denied (Minn. Nov. 10, 2004).