may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Edward Lee Jacka,
St. Louis County District Court
File No. K7-96-100877
Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Alan L. Mitchell, St. Louis County Attorney, 100 North 5th Avenue West., #501, Duluth, MN 55802 (for Respondent)
James B. Florey, Assistant County Attorney, 300 South Fifth Avenue, Virginia, MN 55792 (for Respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Amundson, Presiding Judge, Short, Judge, and Harten, Judge.
Edward Lee Jacka challenges the district court's upward double durational departure from the sentencing guidelines, arguing that the departure was unwarranted because the district court should have considered in mitigation his own permanent injuries resulting from the crime. We affirm.
Jacka pled guilty to one count of criminal vehicular operation and was sentenced to 60 months, a double durational departure from the sentencing guidelines presumptive sentence of 30 months. The district court found that a number of reasons justified the double departure: (1) Jacka's blood alcohol level was .26 at the time of the accident; (2) the crime was committed in the presence of three children who were passengers in the vehicle that Jacka struck; (3) Jacka's operation of an uninsured motor vehicle at the time of the collision; (4) Jacka being "unamenable to any probationary supervision" because of his prior record; (5) Jacka's history of alcohol abuse; and (6) the severity of the victim's injuries and psychological and emotional injury to her family.
On appeal, Jacka does not dispute the validity of the district court's reasons for upward departure. Rather, Jacka argues that the district court should have considered as a mitigating factor the extent of his own permanent injuries resulting from the accident and imposed the presumptive sentence.
The sentencing guidelines list mitigating factors that may justify departure from a presumptive sentence. Minn. Sent. Guidelines II.D.2.a. Although this list is nonexclusive, in order for a factor to be considered in mitigation it "must tend to excuse or mitigate the offender's culpability for the offense." State v. Esparza, 367 N.W.2d 619, 621 (Minn. App. 1985). Jacka's injuries, however, resulted from his criminal activity; they cannot now mitigate his culpability for the crime he committed. We conclude that the district court did not abuse its discretion in sentencing Jacka.
We have reviewed and considered the issues raised in Jacka's pro se brief and find them without merit.