may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Larry Lynn Schweppe,
Filed May 20, 1997
Crow Wing County District Court
File No. K6961846
Hubert H. Humphrey III, Attorney General, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101 (for Respondent)
Donald F. Ryan, Crow Wing County Attorney, Courthouse, 326 Laurel Street, Brainerd, MN 56401-3592 (for Respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.
This appeal challenges the consecutive executed sentences imposed on a driver who operated his vehicle while under the influence of alcohol causing one death and injuries to other victims. Because the sentence does not exaggerate the criminality of the offense, we affirm.
Schweppe was discovered some distance from the accident location, hiding in the woods. He was arrested and a subsequent blood alcohol analysis showed a .16 concentration. At the time of the accident, Schweppe was driving without a license; it had been cancelled due to a prior alcohol-related offense.
Schweppe was charged with two counts of criminal vehicular homicide (Minn. Stat. § 609.21, subd. 1(1), (4)); four counts of criminal vehicular operation resulting in great bodily harm (Minn. Stat. § 609.21, subd. 2(1), (4)); eight counts of criminal vehicular operation resulting in substantial bodily harm (Minn. Stat. § 609.21, subd. 2a(1), (4)); and aggravated DUI (Minn. Stat. § 169.129). Schweppe pleaded guilty to one count of criminal vehicular homicide, two counts of criminal vehicular operation resulting in great bodily harm, and four counts of criminal vehicular operation resulting in substantial bodily harm.
At the sentencing hearing the court heard testimony from an attorney representing the Crews, from Vanessa Brancheau, one of the children injured in the accident, her mother Phyllis Brancheau, and Schweppe. The court sentenced Schweppe to consecutive executed sentences: 98 months for criminal vehicular homicide (the presumptive sentence given Schweppe's criminal history score of 5); 18 months each for both criminal vehicular operation resulting in great bodily harm convictions (also the presumptive sentence); and 12 months and 1 day each for all four criminal vehicular operation resulting in substantial bodily harm convictions (the presumptive sentence). Schweppe appeals the sentence.
Schweppe argues that by sentencing him to consecutive sentences the district court abused its discretion because his sentence unfairly exaggerates the criminality of his conduct. Although we agree that Schweppe's sentence reaches the outer limits of the district court's discretion, we do not believe the sentence exaggerates the criminality of his offense.
We cannot, by a "review of the cases," State v. Norris, 428 N.W.2d 61, 71 (Minn. 1988), determine whether consecutive sentencing under these circumstances exaggerates the criminality of Schweppe's offense. The parties have not identified, nor have we found, any other reported cases involving negligent vehicular operation with multiple victims. The record yields no evidence of sentences in comparable cases, thus we are unable to evaluate the typicality of the sentence.
Under other circumstances, the supreme court has modified consecutive sentencing when many individuals are victimized by one incident. See, e.g., State v. Goulette, 442 N.W.2d 793, 795 (Minn. 1989) (modifying consecutive sentence imposed for five aggravated robbery convictions when defendant tied up five restaurant employees); Norris, 428 N.W.2d at 71 (modifying consecutive sentence imposed for one conviction of first degree murder and five convictions for second degree assault after robbery at bar). But the court has also upheld consecutive sentencing when a defendant's conduct has victimized multiple individuals. See, e.g., Cole, 542 N.W.2d at 53 (upholding consecutive sentencing for one first degree murder conviction and five convictions for assault); State v. Rieck, 286 N.W.2d 724, 727 (Minn. 1979) (upholding consecutive sentencing on five aggravated assault convictions when defendant threw Molotov cocktail into home and "should have known that there would be multiple victims").
Given the absence of comparable-case evidence, we look to a length-of-sentence comparison with durational departures. If the length of the sentence would be justifiable as a durational departure, the sentence does not exaggerate the criminality of an offense. Cf. Goulette, 442 N.W.2d at 795 (modifying consecutive sentencing by imposing maximum sentence district court could have imposed without use of multiple consecutive sentences).
Taking Schweppe's 98-month sentence for criminal vehicular homicide as the base sentence, the addition of the other consecutive sentences would constitute less than a double durational departure. We believe that a number of aggravating factors would justify such a departure in this case. Schweppe was driving without a license. He was speeding. None of his underage passengers was wearing a seatbelt. He attempted to flee into the woods after the accident. And his conduct caused the Crews to witness the death of a family member. Schweppe exhibited "callous disregard" for the consequences of alcohol abuse, the laws of the state, and the safety of others. See State v. Finn, 391 N.W.2d 55, 56 (Minn. App. 1986) (affirming durational departure on grounds that defendant demonstrated disregard for consequences of alcohol abuse, wishes of family members, laws of state and safety of others); see also State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995) (affirming durational departure on basis of defendant's high blood-alcohol concentration, driving without license, and attempt to blame another for offense); State v. Condon, 497 N.W.2d 272, 276 (Minn. App. 1993) (affirming greater-than-double departure based on defendant's high blood-alcohol level, defendant's attempt to flee, and occurrence of fatality in front of family members); State v. Hermann, 479 N.W.2d 724 (Minn. App. 1992) (affirming durational departure on grounds that defendant had stolen vehicle, had prior experience with drinking and driving indicating awareness of danger, ignored counsel of family members, was violating probation, and was driving without a license), review denied (Minn. Mar. 19, 1992).
Because the circumstances of Schweppe's offense would justify his sentence as a durational departure, the district court's consecutive sentencing does not exaggerate the criminality of his offense.
Schweppe argues that even if we affirm the consecutive sentencing, the 84 months consecutive to his sentence for criminal vehicular homicide must be stayed. We disagree. When calculating multiple consecutive sentences the district court must use a criminal history score of 0 for convictions subsequent to the first conviction for which the defendant is given an executed presumptive sentence. Minn. Sent. Guidelines II.F. But that rule applies only for purposes of sentence duration, not disposition. See State v. Beamon, 438 N.W.2d 397, 399-400 (Minn. App. 1989), review denied (Minn. May 12, 1989).
In his pro se brief, Schweppe argues that he was misled by trial counsel about his sentence, that his plea was coerced, that he was prejudiced by ineffective assistance of counsel, and that the district court abused its discretion in ordering restitution. The evidence in the record does not support Schweppe's claims.
Schweppe's own testimony during his guilty plea demonstrates that he was aware of the sentencing consequences of his plea. He answered in the affirmative when asked by his attorney if he understood that the court could sentence him consecutively for each count. He stated that he understood that his sentence would vary depending on his criminal history score. And he testified that he understood his guilty plea placed no constraint on the court at sentencing. When asked if he understood that the prosecution could seek consecutive sentencing, he responded: "Sure, absolutely. I figured they would probably do that."
Ineffective assistance of trial counsel claims are best evaluated on a record developed in a postconviction appeal. But we will address the issue on direct appeal without the benefit of a postconviction hearing transcript at the request of the appellant. See Roby v. State, 531 N.W.2d 482, 484, n.1 (Minn. 1995). There is nothing in the record to support Schweppe's ineffective assistance claim, and it therefore must fail.
Finally, the district court's restitution order directing Schweppe to pay Phyllis Brancheau $2,700 is adequately supported by Brancheau's affidavit. See Minn. Stat. §§ 611A.04, 611A.045 (1996) (authorizing restitution for crime victims based on documentation of victim's loss); State v. Grayson, 546 N.W.2d 731, 739 (Minn. 1996). Because the award is supported by a factual basis, documentation need not include receipts. See State v. Keehn, 554 N.W.2d 405, 408 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).