This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Jeri Jerome Knopik,
Filed May 9, 2006
Brown County District Court
File No. 08-KX-04-000519
Olson, Brown County Attorney,
Stuart, State Public Defender, James R. Peterson, Assistant Public Defender,
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from his conviction of second-degree controlled-substance offense, appellant Jeri Jerome Knopik challenges (1) the district court’s refusal to grant a dispositional departure; and (2) the use of a custody-status point in sentencing when a jury did not determine that he was on probation at the time of the offense and he did not waive his right to have a jury determine every fact used to support an increase in his sentence. We affirm.
Knopik was initially charged with first-degree controlled-substance offense for selling methamphetamine to an undercover officer. The state later amended the complaint to charge second-degree controlled-substance offense.
Knopik pleaded guilty to the second-degree charge under a “straight plea” that included no agreement as to sentence. A presentence-investigation report showed that Knopik had four prior misdemeanor or gross-misdemeanor convictions, but no prior felonies. The sentencing worksheet assigned Knopik a custody-status point for being on probation at the time of the controlled-substance offense.
Knopik moved for a dispositional departure and submitted the testimony of a dispositional advisor for the public defender’s office, who recommended that the court impose a “staggered incarceration sentence.” The dispositional advisor testified that Knopik had made several voluntary attempts at chemical-dependency treatment and that he had the support of his mother, although she was not able at that time to provide him a residence. The dispositional advisor also recommended that Knopik be sent to a treatment program specifically for methamphetamine addicts. She admitted on cross-examination that Knopik had failed in four different treatment programs, two inpatient and two outpatient, and completed one but then relapsed.
Knopik’s counsel argued that factors supporting a dispositional departure included that Knopik was young, had no prior felonies, was remorseful, and had attempted to work with the Drug Task Force after his arrest. The prosecutor opposed a departure, arguing that Knopik was deeply involved in the local drug-dealing culture, as demonstrated by the more than 100 phone numbers on his cell phone, which police suspected were the numbers of customers or dealers.
Following a recess, the district court found that Knopik was not particularly amenable to probation, noting that Knopik had violated probation in the past, and concluded that there was no basis for a downward departure. The district court imposed the presumptive sentence of 58 months executed.
D E C I S I O N
The district court has broad
discretion when sentencing and “we generally will not interfere with the
exercise of that discretion.” State v. Kindem, 313 N.W.2d 6, 7 (
Knopik argues that the district
court failed to properly exercise its discretion when it denied his motion for
a dispositional departure. Knopik
contends that the district court did not “deliberately” consider the
circumstances favoring a departure as it did those opposing a departure.
The supreme court has explained with
respect to dispositional departures that “just as a defendant’s particular
unamenability to probation will justify departure in the form of an execution
of a presumptively stayed sentence, a defendant’s particular amenability to
individualized treatment in a probationary setting will justify departure in
the form of a stay of execution of a presumptively executed sentence.” State
v. Trog, 323 N.W.2d 28, 31 (
The district court did not recite
the circumstances favoring a departure before it imposed the presumptive
sentence. But there is no case law
holding that the district court must do so.
This court has remanded for reconsideration when the circumstances at
sentencing make it clear that the district court did not exercise its
This case is not like
Knopik also argues that the assignment
of a custody-status point when determining his presumptive sentence violated
his right to a jury trial under Blakely
v. Washington, 542 U.S. 296, 313, 124 S. Ct. 2531, 2543 (2004). But after Knopik submitted his brief, the
supreme court held that the assignment of a custody-status point fits within
the “prior conviction” exception recognized in Blakely. State v. Allen, 706 N.W.2d 40, 48 (