This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





James Robert Mogren,




Filed April 11, 2006

Reversed and remanded

Crippen, Judge*


Washington County District Court

File No. K2-04-6861



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


Doug Johnson, Washington County Attorney, John W. Fristik, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082 (for appellant)


Beau Daniel McGraw, Suite 200, 600 Inwood Avenue North, Oakdale, MN 55128 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            The district court stayed imposition of respondent’s felony DWI sentence, contradicting a statute declaring a mandatory sentence for this offense.  The statute states that the court may stay execution of the mandatory sentence but “may not stay imposition or adjudication of the sentence.”  Answering the state’s appeal, calling for application of the statute, respondent claims that the legislature’s command violates both the separation of powers doctrine and the constitutional demand of equal protection of the laws.  Finding no established basis for respondent’s argument, we reverse and remand for resentencing under the statute.


            Respondent James Mogren pleaded guilty to first-degree driving while impaired under Minn. Stat. § 169A.20, subd. 1(1) (2004).  Over the state’s objection, the district court stayed imposition of respondent’s sentence.  On a pre-printed sentencing order, the court selected from among printed mitigating factors respondent’s amenability to extended supervision and treatment and his remorse and acceptance of responsibility—a rationale that respondent does not question.  The court also entered the handwritten observation of an “additional” mitigating factor, “Equal Protection.” 

Respondent asserts that there is constitutional error in legislation that removes the district court’s discretion to stay sentencing, discretion that was appropriately exercised in this case.  But we have before us neither a written explanation of the district court’s constitutional rationale, a transcript of sentencing proceedings, nor appropriate briefing of significant constitutional questions.


            We will reverse a district court’s decision regarding sentencing only for a clear abuse of discretion.  State v. Lattimer, 624 N.W.2d 284, 290 (Minn. App. 2001), review denied (Minn. May 20, 1998), abrogated on other grounds by State v. Colby, 657 N.W.2d 897 (Minn. App. 2003).  “Under [the abuse-of-discretion] standard, a matter will not be disturbed on appeal unless the [district] court . . . based its ruling on an erroneous view of the law.”  Montgomery Ward & Co. v. County of Hennepin, 450 N.W.2d 299, 306 (Minn. 1990).

The mandatory sentencing statute for DWI offenses states:  “The court shall sentence a person who is convicted of [first-degree DWI] to imprisonment for not less than three years.”  Minn. Stat. § 169A.276, subd. 1(a) (2004).  Additionally, the statute limits the district court’s ability to issue stays, stating:  “The court may stay execution of this mandatory sentence . . . but may not stay imposition or adjudication of the sentence.”  Id., subd. 1(b).  This appeal involves no dispute as to the clear meaning of the statute; as the state suggests, the statute’s mandatory language (“may not”) eliminates discretion on the part of the sentencing judge.

Respondent contends that the discretionary, case-by-case determination of whether stays of sentences are appropriate constitutes a unique, inherent judicial function.  He argues that the cause to uphold judicial sentencing discretion is especially pronounced for the settled judicial power to stay sentencing after adjudication of a criminal offense. 

In addition, respondent alleges that there is no rational basis for distinguishing this felony from most other felonies not subject to the legislative mandate.  Respondent’s arguments invite a determination of whether a public-safety concern for any felony rationally favors general laws for imprisonment as opposed to judicial discretion to determine how public safety is best served in an individual case.

As already suggested in the recitation of the circumstances of this appeal, we are handicapped by the absence of full briefs by the parties, a transcript, a full statement of the district court’s determination of the constitutional issues now stated, and a brief by the state addressing respondent’s constitutional arguments.  Taking into account the precedents applying sentencing statutes and the limited occasion in this case to address this important question, we reject respondent’s argument and remand this matter for resentencing by the district court. 

Both the supreme court and this court have previously heeded legislation prohibiting the district court from withholding mandatory imprisonment.  State v. Bluhm, 676 N.W.2d 649, 653 (Minn. 2004); State v. Sheppard, 587 N.W.2d 53, 56 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999). 

In Bluhm, the supreme court held that the district court abused its discretion when it stayed imposition of a mandatory minimum sentence.  676 N.W.2d at 654.  The court stated that “the legislature must clearly state its intent to create a mandatory sentence and a sentencing court has the discretion to place a defendant on probation when a statute calls for a mandatory sentence if the statutory scheme does not specifically exclude probation.”  Id. at 652.  Further, the term “‘shall’ is mandatory and . . . the legislature does not need to append language prohibiting waiver to every mandatory statute to ensure that the statute is given effect.”  Id. (quotations omitted).

Similarly, in Sheppard, this court acknowledged that “the legislature may restrict the exercise of judicial discretion in sentencing, such as by providing for mandatory sentences.”  587 N.W.2d at 55 (quotation omitted).  The district court stayed execution of Sheppard’s sentence, despite a statute that provided for a mandatory imprisonment term.  Id. at 54.  This court reversed, holding that the statute providing for the mandatory term of imprisonment was clear and that it “remove[d] the authority of the courts to disregard the mandatory-minimum sentence, both as to the impositionand executionof a sentence.”  Id. at 56-57.   

Thus, when a statute is clear and unambiguous, there are precedents requiring the sentencing court to abide by the statute.  The statute pertinent to this case contains both mandatory language and an added provision prohibiting waiver of the mandatory sentencing.  Minn. Stat. § 169A.276, subd. 1(a), (b).

We appreciate that the cited cases, like others on the same subject, do not directly address respondent’s reasoning on the separation of powers doctrine; even more importantly, they contain no statements regarding a violation of equal protection.  Nevertheless, given our limited opportunity to address the issue in this case, we follow the precedents and uphold the statute. 

            Reversed and remanded.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.