This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Jeffrey Thomas Clary,
Filed September 25, 2007
Clay County District Court
File No. 14-K2-06-1455
Lori Swanson, Attorney General,
Brian Melton, Clay County Attorney, Heidi Davies, Assistant County Attorney, Clay County Courthouse, 807 North 11th Street, Moorhead Minnesota 56560 (for appellant)
John M. Stuart, State Public
Defender, Philip Marron, Susan J. Andrews, Assistant Public Defenders,
Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from respondent’s sentence for first-degree controlled-substance offense, appellant argues that the district court abused its discretion when it stayed imposition of respondent’s sentence because (1) the district court improperly relied on socioeconomic factors; (2) respondent’s immaturity and addiction are not mitigating factors; and (3) respondent’s selling cocaine only to his high-school classmates does not make the offense less serious. Although respondent’s sale of cocaine to his high-school classmates was not a proper mitigating factor, the remaining departure grounds cited by the district court were proper and were supported by the record. Accordingly, the district court did not abuse its discretion, and we affirm. This court dismissed respondent’s direct appeal of his conviction after he chose not to pursue it.
In May 2006, respondent Jeffery
Clary was arrested in
During his October 2006 jury trial, respondent testified that he snorted cocaine with his high-school friends and stated that he had never sold more than ten grams of the drug. Respondent also testified that he was addicted to cocaine. At the time of his arrest, respondent lived with his parents and drove his father’s car. Respondent’s father testified that he had not observed respondent with any possessions that had been paid for with any money other than what he gave respondent.
At the conclusion of the trial, the district court denied respondent’s motion for acquittal and the jury found respondent guilty of first-degree controlled-substance crime. Respondent then moved for both downward durational and downward dispositional departures. Respondent also entered a drug treatment program before sentencing. The presentence investigation recommended that the district court impose the presumptive sentence. Because respondent’s crime is a severity-level 9 offense and he had no criminal-history points, the presumptive guidelines sentence is 86 months, executed.
In January 2007, the district court granted a downward durational departure to 48 months and stayed its imposition. The court stated that
I think that probably the worst thing we could do and something that would not be good for him or for society is to commit him to a long term in prison, which is full of hardened criminals, and that to do that I think would likely be tantamount to sentencing him to a life of addiction and crime.
The district court also indicated that respondent enjoyed “good support in the community” from his employer, friends, and girlfriend.
Three days later, the district court amended respondent’s sentence by vacating the 48-month term and staying imposition of the sentence without pronouncing a specific duration. The district court stated that it wanted to clarify that respondent’s sentence was a stay of imposition and not a stay of execution because it did not “want there to be any possible mistake on that point.” The district court continued, “[I]f and when the defendant’s probation is revoked, it will be up to whatever judge deals with it at that time to pronounce a sentence, which could be whatever that judge thinks is an appropriate sentence at that time.” The district court then filed an amended sentencing order staying imposition of a sentence for six years. This appeal follows.
D E C I S I O N
argues that a downward departure was not warranted by the facts of this case
and that respondent should be resentenced.
On appeal, this court “review[s] a sentencing court’s departure from the
sentencing guidelines for abuse of discretion.”
State v. Geller, 665 N.W.2d
514, 516 (
district court must impose the presumptive sentence provided by the sentencing
guidelines unless the case involves “substantial and compelling circumstances”
to warrant a downward departure. State
v. Kindem, 313 N.W.2d 6, 7 (
district court may impose probation “in lieu of an executed sentence when the
defendant is particularly amenable to probation.” State
v. Gebeck, 635 N.W.2d 385, 389 (
district court may focus on the defendant as an individual and determine
whether the presumptive sentence would be best for the defendant and
society. Heywood, 338 N.W.2d at 244. A
court “ought to depart for a felon substantially different from a typical
case.” Bendzula, 675 N.W.2d at 923 (quotation omitted). A departure may be based on grounds that do
not amount to a defense, but “tend to excuse or mitigate the offender’s
Here, the district court concluded that “there are substantial and compelling circumstances justifying a downward dispositional departure from the guidelines sentence” and that “[i]t is more appropriate, reasonable and equitable to depart dispositionally downward in this case by staying imposition of sentence.” Specifically, the district court concluded that a stay was appropriate because (1) respondent’s crime was not a typical first-degree controlled-substance crime and the mitigating facts of the crime “are substantial enough to tend to excuse culpability”; (2) respondent was not a typical first-degree controlled-substance offender “who sells drugs as a livelihood”; (3) respondent was amenable to probation, had a full-time job, and had support from his family and employer; (4) respondent was not a threat to public safety because he only distributed drugs to “a small group of his high school classmates,” and not the “greater community”; and (5) it would be a waste of the “finite resources” of the correction facilities to sentence respondent to prison. The district court also noted that (6) respondent was addicted to cocaine; (7) he had no criminal history aside from two self-reported juvenile convictions for possession of marijuana paraphernalia; (8) a drug counselor concluded that respondent was motivated to engage in treatment and that respondent would benefit from chemical-dependency and mental-health services; and (9) respondent was 18 years old at the time of the crime.
The record supports all but one the district court’s departure grounds. Specifically, we reject the district court’s finding that respondent was not a threat to public safety because he only distributed the drugs to a “small group of his high school classmates,” and not to the “greater community.” Although the record otherwise supports the district court’s conclusion that respondent does not pose a threat to public safety, the fact that respondent only chose to sell cocaine to his peers is not a proper mitigating factor.
Based on the district court’s other proper and extensive findings, we conclude that the district court did not abuse its discretion by staying imposition of respondent’s sentence.