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,
Anthony Joseph Jeska,
Filed June 17, 1997
Washington County District Court
File No. K3-95-5354
Richard Arney, Washington County Attorney, John W. Fristik, Assistant County Attorney, Washington County Government Center, 14900 61st Street North, P.O. Box 6, Stillwater, MN 55082 (for Respondent)
Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Short, Presiding Judge, Klaphake, Judge, and Schultz, Judge.[*]
Appellant Anthony Joseph Jeska challenges the trial court's basis for imposing a sentence that constitutes a double durational departure from the presumptive guidelines sentence for the offense of leaving the scene of an accident. Because the aggravating factors relied on by the trial court support the departure, we affirm.
The first aggravating factor enumerated by the trial court to support the departure included the particular cruelty to the victim, who was left on the roadside on a rainy night in a paralyzed condition and with a closed-head injury. Other factors included appellant's (1) driving an uninsured vehicle, (2) driving in violation of his restricted driver's license, (3) speeding, and (4) driving "impaired through the use of alcohol." These enumerated factors are sufficient to warrant the sentence imposed and are consistent with durational departures in other cases for the same or similar offenses. See State v. Weaver, 474 N.W.2d 341, 343 (Minn. 1991) (aggravating factors supporting double durational departure for leaving scene of accident included defendant's driving without insurance, marijuana use, and attempt to hide involvement in crime); State v. Wilkinson, 539 N.W.2d 249, 253-54 (Minn. App. 1995) (aggravating factors supporting quadruple durational departure for leaving scene of accident included defendant's chemical dependency and disregard for effects of alcohol use, great disregard for human life and public safety, and egregious evasive conduct); see also State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995) (aggravating factors supporting durational departure in criminal vehicular homicide case included defendant's alcohol use and uninsured driving); State v. Rasinski, 472 N.W.2d 645, 650 (Minn. 1991) (aggravating factors supporting durational departure in criminal vehicular operation case included defendant's lack of insurance and prior alcohol related offenses not considered in calculating criminal history score); State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984) (aggravating factors supporting one and one-half durational departure in criminal vehicular homicide case included defendant's excessive driving speed). While appellant's use of alcohol at the time of the accident may not be used as a basis for departure, see Minn. Sent. Guidelines cmt. II.D.201, his chemical dependency and disregard for the effects of his alcohol use may be considered when departing. See Wilkinson, 539 N.W.2d at 254.
Because the record demonstrates the presence of aggravating factors supporting a durational departure, the trial court did not abuse its discretion in sentencing appellant to a two-year stayed prison sentence.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.