This opinion will be unpublished and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
State of Minnesota,
DuWayne William Otto,
Carver County District Court
File No. 10CR0056
Richard L. Swanson, 207 Chestnut Street, Suite 235, Chaska, MN 55318 (for appellant)
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael Fahey, Carver County Attorney, Peter A.C. Ivy, Assistant County Attorney, Carver County Justice Center, 604 East Fourth Street, Chaska, MN 55318 (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Willis, Judge; and Wright, Judge.
Appellant challenges his sentence imposed for felony driving while impaired, arguing that the district court abused its discretion in denying his motion for a downward dispositional departure without adequately considering relevant mitigating factors. We affirm.
On January 1, 2005, Corporal Anderley of the Carver County Sherriff’s Department observed a car that had collided with a parked sport utility vehicle. The car was driven by appellant DuWayne Otto, who was holding an open bottle of rum on his lap. An on-the-scene investigation led to Otto’s arrest for driving while impaired (DWI). Otto had an alcohol concentration of .20.
At the time of this offense, Otto was on probation for a felony-DWI offense that he committed on May 27, 2004. For the May 2004 offense, the district court had imposed a sentence of 42 months, stayed the execution of the unserved 39 months of the sentence, and ordered seven years’ probation. Otto was ordered to undergo chemical-dependency treatment as a condition of probation. Consequently, Otto was a resident at a chemical-dependency halfway house when he committed the January 2005 offense on a furlough to retrieve personal items from his home. In addition to the May 2004 DWI offense, Otto was on a two-year probation for a conviction of fourth-degree assault.
For the January 2005 offense, Otto was charged with first-degree DWI (alcohol concentration of .10 within two hours of driving), a felony violation of Minn. Stat. § 169A.20, subd. 1(5) (2004); driving after cancellation of his driver’s license as inimical to public safety, a gross-misdemeanor violation of Minn. Stat. § 171.24, subd. 5 (2004); and possession of an open bottle of alcohol in a motor vehicle, a misdemeanor violation of Minn. Stat. § 169A.35, subd. 3 (2004). The complaint was amended to include two additional counts: consuming alcohol in violation of a driving restriction, a violation of Minn. Stat. § 171.09, subd. 1(b)(1) (2004); and first-degree DWI with three or more qualified prior impaired-driving incidents, a felony violation of Minn. Stat. §§ 169A.20, subd. 1(5); 169A.24, subd. 1 (2004).
On January 27, 2005, after Otto failed to take a scheduled urinalysis test and disconnected himself from his electronic home-monitoring equipment, Otto was taken into custody on a bench warrant. He subsequently requested a furlough to enroll in Minnesota Teen Challenge, a 13-month rehabilitation program. The district court denied this motion in an order dated May 12, 2005.
On June 7, 2005, the district court accepted Otto’s guilty plea to first-degree DWI. The district court held a sentencing hearing on August 26, 2005. Otto moved the district court for a downward dispositional departure to allow him to participate in the Minnesota Teen Challenge program. Finding that Otto was not amenable to either probation or treatment, the district court rejected Otto’s motion and imposed a sentence of 36 months’ imprisonment to be served consecutively to the sentence imposed for the May 2004 offense, which was executed pursuant to the probation violation for failing to remain law abiding. The district court also revoked Otto’s probation on his fourth-degree assault conviction and sentenced him to serve one year and one day concurrently with the other sentences. This appeal followed.
D E C I S I O N
contends that the district court erred because it failed to adequately consider
mitigating factors that support a downward dispositional departure, which would
permit him to participate in the Minnesota Teen Challenge program. On appeal, we “may review the sentence
imposed or stayed to determine whether the sentence is inconsistent with
statutory requirements, unreasonable, inappropriate, excessive, unjustifiably
disparate, or not warranted by the findings of fact issued by the district court.” Minn. Stat. § 244.11, subd. 2(b) (2004). The decision whether to depart from the
sentencing guidelines rests within the district court’s discretion, and we will
not disturb the district court’s decision “absent a clear abuse of that
discretion.” State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (
district court must impose the presumptive guidelines sentence unless the case
involves “substantial and compelling circumstances” to warrant a downward
support his argument that he is amenable to probation, Otto cites State v. Trog, in which the Minnesota Supreme Court upheld
the district court’s dispositional departure after finding the defendant amenable
to treatment based on “[n]umerous factors, 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 . . . .”
323 N.W.2d 28, 31 (
The factors present here bear a striking contrast to those in Trog. Unlike the presentence investigation report in Trog, the presentence investigation report here concluded that Otto was at a high risk to re-offend, a risk to himself, and a risk to the community. Otto has an extensive criminal history that includes domestic assault, fifth-degree assault, fourth-degree assault, and a prior felony-DWI conviction. As a result, he has a criminal-history score of three. In addition to the offenses that contributed to his criminal-history score, Otto’s record includes DWI convictions dating back to 1987. That record includes two DWI offenses committed in 2002 and one in 2003.
The record also demonstrates that Otto has an extensive history of failed chemical-dependency treatment. Since 1998, Otto has participated in chemical-dependency treatment six times. In 1998, Otto attended an inpatient-treatment program. Shortly after leaving that program, Otto relapsed. Otto next participated in an outpatient-treatment program and remained sober for two and one-half years after completing it. In 2002, he entered another inpatient-treatment program, from which he was discharged after committing his third DWI in December 2002. In April 2003, Otto began another outpatient program. After his fourth DWI, Otto completed seven months of court-ordered alcohol monitoring, which ended when he relapsed in May 2004. Otto again entered inpatient treatment in July 2004. He transferred to an outpatient program in August 2004 and was discharged from this program for alcohol use one month later. Finally, after Otto was released from incarceration in November 2004, he entered another 30-day inpatient-treatment program. After successful completion of this program, Otto entered a halfway house for aftercare. He committed the instant offense during a brief furlough from the halfway house, where he was receiving chemical-dependency treatment.
The sentencing-hearing record also contradicts Otto’s argument that the district court did not adequately consider mitigating factors. Before imposing sentence, the district court recessed for the purpose of reexamining Otto’s criminal history, treatment history, and personal circumstances. The district court reviewed the presentence investigation report, looking for “anything that [it] could [rely on to] make a finding that [Otto is] amenable to probation.” But instead, the district court found Otto’s history of missed court appearances, Otto’s violation of an order for abstinence resulting in the cancellation of his driver’s license, and a report from Otto’s family that he was drinking 1.75 liters of vodka per day. The district court concluded by saying:
As I struggle as I may, Mr. Otto, I simply cannot find that there is anything in here that suggests that [you are] amenable to treatment. I therefore find there is no basis for a dispositional departure in this matter and so based on that I am going to follow the sentencing guidelines . . . .
Otto maintains that his successful application to the Minnesota Teen Challenge program is evidence of his amenability to treatment. He also points to his family’s support for his participation in this program. But those arguments do not establish that a substantial and compelling basis exists for departure from the presumptive guidelines sentence. See Wall, 343 N.W.2d at 25 (stating that presence of mitigating factors does not require sentencing court to impose downward departure).
The district court correctly determined that there was no basis for granting the motion for a downward dispositional departure. Imposition of the presumptive guidelines sentence was a sound exercise of the district court’s discretion.
 Based on his prior convictions of fourth-degree assault and first-degree DWI and a custody-status point, Otto had a criminal-history score of three. Minn. Sent. Guidelines II.B.1.a. Therefore, Otto’s presumptive guidelines sentence for the January 2005 felony-DWI offense ordinarily would have been 54 months’ imprisonment. Minn. Sent. Guidelines IV. But because the district court was required to impose a mandatory consecutive sentence for the January 2005 offense, Minn. Stat. § 169A.28, subd. 1 (2004), the sentencing guidelines mandated a criminal-history score of one. See Minn. Sent. Guidelines II.F (“For each presumptive consecutive offense sentenced consecutive to another offense(s), a criminal history score of one, or the mandatory minimum for the offense, whichever is greater, shall be used in determining the presumptive duration.”). With a criminal-history score of one, the presumptive guidelines sentence was 42 months’ imprisonment. Minn. Sent. Guidelines IV. The district court, however, sentenced Otto to 36 months’ imprisonment for the January 2005 offense, an apparently erroneous application of a criminal-history score of zero. Minn. Sent. Guidelines IV. Thus, in effect, Otto received an inadvertent downward durational departure of six months, which the state did not appeal.
We observe that, since the sentencing in this case, the Minnesota Supreme Court has rejected the use of section II.F in cases involving a mandatory consecutive sentence under Minn. Stat. § 169A.28. State v. Holmes, 719 N.W.2d 904, 905 (Minn. 2006). “[T]he duration of an offender’s consecutive sentence imposed under Minn. Stat. § 169A.28, subd. 1, is measured by the offender’s criminal history score, which score is not amended downward under Minnesota Sentencing Guidelines II.F. . . .” Id. Holmes now makes evident that, under the circumstances here, the presumptive guidelines sentence is 54 months’ imprisonment.
 The state argues that Minn. Stat. § 169A.28, subd. 1, mandating consecutive sentences for multiple DWI convictions, precluded the imposition of a dispositional departure. But this argument is misplaced. Otto does not contest the consecutive nature of his sentence. Rather, he contests the execution of his sentence, which prevented him from participating in the Minnesota Teen Challenge program. Section 169A.28 precludes concurrent sentences; it does not preclude consecutive probationary sentences or dispositional departures.