This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




State of Minnesota,


Francisco Lopez Padron,


Filed November 13, 2007


Huspeni, Judge*



Ramsey County District Court

File No. K2-06-594


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


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 



            Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


On appeal from sentence after a guilty plea to a charge of first-degree driving while impaired, appellant argues that the district court abused its discretion by refusing to find substantial and compelling reasons to stay appellant’s presumptive sentence.  Because we conclude that the district court did not abuse its discretion, we affirm.


A St. Anthony police officer stopped appellant Francisco Lopez Padron for making an improper left turn and because his rear license plate light was out.  The officer smelled alcohol on appellant’s breath, and administered roadside sobriety tests, including the HGN, one leg stand, and PBT, which appellant failed.  Appellant was arrested for DWI and transported to the St. Anthony Police Department.  Police then conducted a breath test, which showed that appellant had an alcohol concentration of .11.  Subsequently, the state charged appellant with first-degree driving while impaired within ten years of the first of three qualified prior impaired driving incidents. 

Appellant pleaded guilty as charged.  When the district court approved the plea agreement, neither party was aware that appellant had an active bench warrant from Mower County for failing to appear at sentencing with regard to a prior gross misdemeanor DWI, which resulted in a custody status point.  Because they were unaware of this criminal history point, both parties thought the presumptive sentence under the sentencing guidelines would be stayed.  Based on appellant’s actual criminal history score, however, the presumptive sentence was an executed 54 months.  

At the sentencing hearing, after disclosure of appellant’s custody status point, defense counsel requested additional time to look into the matter, stating that she thought the custody status point was improper.  Defense counsel also moved the court for a dispositional departure.  The matter of the custody status point was apparently then reviewed by the parties, and at the rescheduled sentencing hearing, the custody status point remained.  The court then continued sentencing again, to allow full consideration of appellant’s motion for a dispositional departure.

At the continued sentencing hearing, the district court concluded that given his history, appellant’s long-term amenability to probation was questionable.  The court therefore imposed the presumptive executed 54-month prison sentence.  This appeal, challenging the district court’s refusal to depart from the presumptive sentence, followed. 


            Appellant argues that the district court abused its discretion by denying his request for a dispositional departure.  Appellant contends that the circumstances of his case constitute substantial and compelling reasons to depart, and that the district court failed to consider relevant aspects of appellant’s amenability to probation before denying the request.

            “[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  The guideline sentences are presumed to be appropriate for every case.  Minn. Sent. Guidelines II.D.  The district court must order the presumptive sentence provided in 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 (Minn. 1981). 

            The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  The district court must exercise its discretion by weighing the reasons for and against departure.  State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).  But the court is not obligated to grant a dispositional departure merely because a mitigating factor is present.  Oberg, 627 N.W.2d at 724. “Only in a rare case would a sentencing court’s refusal to depart warrant reversal.”  Id. (quotation omitted).  A district court may, however, choose to depart from the presumptive guidelines sentence by imposing probation instead of an executed sentence when a defendant is amenable to probation.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  Amenability to probation depends on numerous factors, including the defendant’s age, prior record, remorse, cooperation, attitude while in court, and support of friends and family.  Id. 

Appellant argues that like the defendant in Trog, he is amenable to probation and therefore he and society would be best served if he receives a probationary sentence instead of the presumptive guidelines sentence.  Appellant contends that the district court failed to consider that he is now 50 years old, has two young children, a supportive wife and friends, and was alcohol-free for four months while on conditional release. 

The district court’s analysis in Trog focused on the youth of defendant and the fact that he had never been involved in a crime before.  323 N.W.2d at 30.  The supreme court noted that “a defendant’s clean record does not by itself justify mitigation of sentence because that factor, in the form of defendant’s criminal history score, has already been taken into account by the Sentencing Guidelines in establishing the presumptive sentence.”  Id. at 31.  Unlike the defendant in Trog, appellant’s age does not carry the same weight in terms of the opportunity for him to undertake treatment and change his behavior.  Although appellant appeared cooperative and willing to participate in treatment for the short term, he also has a long history of criminal activity, including several prior convictions for alcohol-related driving offenses.

Appellant further argues that because the district court failed to consider the Trog factors, it therefore failed to deliberately weigh the arguments for and against departure as required by Curtiss.  353 N.W.2d at 264.  Despite appellant’s contention to the contrary, the district court considered several factors related to amenability to probation and balanced them against reasons for non-departure, including the interests of society.  Specifically, the district court stated:

Part of the concern there I think with the State and that I have is that you had two [DWIs] within a span of about ten months in 2001, then you got the other one just a few months later in 2002. . . .


            I would expect that you’d be successful [at staying clean] while you were out here, otherwise you wouldn’t still be out, obviously.  But it does create some issues about public safety in terms of how are you going to be able to maintain that in the longer run. 


            Appellant also argues, however, that the district court’s sole reason for denying a dispositional departure was its concern that appellant’s three prior alcohol-related driving convictions occurred close together in 2001 and 2002.  In reaching its decision, the district court stated that

in terms of being able to get through probation, it may have been some mistake on your part, in terms of getting this Mower County matter taken care of, but it looks like you hadn’t even actually gotten that done to serve time on probation there, but pretty clearly you stayed out of trouble I guess between then and now or you would have been picked up on that warrant.  It becomes an issue of trying to weigh that against, as I said, the issues of public safety and the presumptive sentence here.  But I do have some questions about your long-term amenability to probation, given your history.  So I’m going to deny the motion for the departure.


            Based on the record, it is apparent that the district court weighed appellant’s ability to stay out of trouble in the short-term against the likelihood of his long-term amenability to probation based on his history.  The fact that mitigating factors were present did not obligate the district court to grant a dispositional departure.  Oberg, 627 N.W.2d at 724.  Because the district court appropriately balanced reasons for and against departure, it did not abuse its discretion in denying appellant’s motion for a dispositional departure. 



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