This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-1245

James Thomas Heley,

petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed April 15, 1997

Affirmed

Foley, Judge

[*]

Clay County District Court

File No. K3-95-138

Hubert H. Humphrey, III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Todd S. Webb, Clay County Attorney, P.O. Box 280, Moorhead, MN 56561 (for Respondent)

John M. Stuart, State Public Defender, Lyonel F. Norris, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Foley, Judge.

U N P U B L I S H E D O P I N I O N

FOLEY, Judge

Appellant argues the postconviction court erred when it refused to depart downward durationally from the presumptive sentence. We affirm.

FACTS

Appellant James Thomas Heley was convicted of one count of controlled substance crime in the first degree in violation of Minn. Stat. § 152.021, subd. 1(1) (1996), following a trial to the Clay County District Court on stipulated facts. Based on appellant's criminal history score of zero, the district court sentenced appellant to the presumptive term of 86 months imprisonment.

After appellant filed a notice of appeal, this court, pursuant to the parties' stipulation, unconditionally dismissed the appeal.

Appellant then filed a petition for postconviction relief in Clay County District Court, requesting a downward durational departure and the return of certain confiscated property. The postconviction court denied appellant relief, finding that appellant's rights were not violated when the district court imposed the presumptive sentence under the Minnesota Sentencing Guidelines and that appellant could not properly challenge the forfeiture of his property in a postconviction proceeding.

D E C I S I O N

Appellant commenced this proceeding under Minnesota's postconviction statute, Minnesota Statutes Chapter 590. Under this statute, an individual convicted of a crime may commence a proceeding seeking a remedy based on a claim "that the conviction obtained or the sentence or other disposition made violated the person's rights under the Constitution or laws of the United States or of the state." Minn. Stat. § 590.01, subd. 1 (1996).

Appellant seeks to have his presumptive 84-month executed sentenced reduced to 54 months so that he is eligible for the Challenge Incarceration Program (CIP). Appellant argues that the existence of the CIP program constitutes a "substantial and compelling" mitigating circumstance under the sentencing guidelines, requiring the trial court to depart downward durationally. According to appellant, this downward durational departure is justified because he is simply the middleman, not a dealer (despite his admission to the contrary to the trial court during sentencing), he has no prior felony convictions, he is sorry for his actions, and he is amenable to treatment.

Contrary to respondent's claim, nothing in Chapter 590 or elsewhere prevents appellant from bringing his claim under this section. If appellant can show that his rights under federal or state law were violated, he is entitled to relief under the postconviction statute. However, as respondent argues, we conclude that the presumptive sentence received by appellant does not violate any laws of the United States or the State of Minnesota.

Based on a criminal history score of zero, appellant was sentenced to an executed sentence of 84 months in prison. This is the presumptive sentence called for under the sentencing guidelines. As the guidelines state,

[t]he sentences provided in the Sentencing Guidelines Grid are presumed to be appropriate for every case. The judge shall utilize the presumptive sentence provided * * * unless the individual case involves substantial and compelling circumstances.

Minn. Sent. Guidelines II.D. (1996). Substantial and compelling circumstances are those that make a defendant's conduct "significantly more or less serious than that typically involved in the commission of the crime in question." State v. Back, 341 N.W.2d 273, 276 (Minn. 1983). If such circumstances are present, the trial court has broad discretion to depart from the guidelines. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). It is "a rare case which would warrant reversal of the refusal to depart." State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

Initially, it must be noted that, despite the fact that CIP was created by the legislature in 1992, neither appellant nor his defense attorney brought CIP to the attention of the trial court during the initial sentencing hearing. Therefore, the trial court did not have occasion to address the appropriateness of the CIP program. Because the issue was not presented to the trial court, it is not properly before this court. Only those issues presented and considered by the trial court may be considered on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1989).

However, even assuming the issue to be properly preserved on appeal, appellant is not entitled to relief. An individual's willingness to succeed in treatment is not a ground for a downward durational departure. State v. Nelson, 329 N.W.2d 827, 829 (Minn. 1983). Such willingness is simply "a ground for a dispositional departure in the form of a stay of execution of sentence." Id. (citations omitted). Similarly, an individual's remorse for his actions, or lack thereof, is a basis on which the court may depart dispositionally, but not durationally. See Back, 341 N.W.2d at 275 (holding that generally a defendant's remorse bears only on a decision whether to depart dispositionally, not on a decision to depart durationally); State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (holding that among other factors, a defendant's remorse is relevant to a determination on whether to depart dispositionally). And lastly, the fact that appellant has no prior felony convictions is not a mitigating factor because it has already been considered in determining appellant's criminal history score. See Trog, 323 N.W.2d at 31 (holding that defendant's clean record is not a mitigating factor because it is accounted for in determining defendant's criminal history score); State v. Cizl, 304 N.W.2d 632, 634 (Minn. 1981) (identical holding).

Rather than a substantial and compelling circumstance justifying a downward durational departure, entry into the CIP program is akin to a dispositional departure. The factors cited by appellant, while arguably sufficient to justify a dispositional departure, are not a proper basis on which to depart durationally. See Nelson, 329 N.W.2d at 829 (holding that a factor sufficient to justify a dispositional departure may not be sufficient to justify a durational departure). Accordingly, we conclude that the sentence imposed by the trial court was not unlawful nor did it violate any rights of appellant that would justify relief under Chapter 590.

Even if we were to conclude the existence of CIP to be a substantial and compelling mitigating circumstance, the trial court was not required to depart downward.

The fact that a mitigating factor was clearly present did not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.

State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).

Here, there is no evidence that the sale of cocaine by appellant was anything other than typical. Appellant has not argued, or shown the presence of, any factors that make this sale of cocaine any less serious than the "typical" sale of cocaine. Consequently, the trial court was not required to depart dispositionally or durationally from the presumptive sentence. It cannot be said, therefore, that appellant's sentence is unlawful under the laws of the United States or the State of Minnesota.

Respondent argues that under Minn. R. Crim. P. 27.03, subd. 9, the postconviction court is without jurisdiction to modify appellant's executed sentence. This argument is without merit. Minn. R. Crim. P. 27.03, subd. 9, provides that:

The court at any time may correct a sentence not authorized by law. The court may at any time modify a sentence during either a stay of imposition or stay of execution of sentence except that the court may not increase the period of confinement.

Minn. R. Crim. P. 27.03, subd. 9.

Respondent points to the supreme court's language in State v. Ford, 539 N.W.2d 214, 230-31 (Minn. 1995), in which the court stated that "under Minn. R. Crim. P. 27.03, subd. 9, not even the trial court has authority to modify a sentence once the sentence has been executed." However, in Ford, the supreme court reversed the trial court's sentence because the trial court had improperly delegated its authority to impose a sentence to the Department of Corrections.

Under rule 27.03, "[i]f the sentence is not authorized by law, the reviewing court can reevaluate that sentence." State v. Stutelberg, 435 N.W.2d 632, 634 (Minn. App. 1989) (citation omitted). Under the state's interpretation, a court would have no power to reevaluate a sentence, even if unlawful, once the sentence is executed. The language of the rule is clear that a court may, at any time, correct and modify a sentence if it is not authorized by law. In the present case, however, we conclude appellant's sentence is authorized by law and, therefore, because it has been executed, rule 27.03 prevents this court from modifying appellant's sentence.

Lastly, we conclude the argument contained in appellant's pro se supplemental brief to be without merit.

Affirmed.

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