This opinion will be unpublished and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

C1-97-2154

State of Minnesota,

Appellant,

vs.

Jeremy Scott Majorowicz,

Respondent.

Filed April 21, 1998

Reversed and remanded for further proceedings

Amundson, Judge

Washington County District Court
File No. K1-97-3221

Hubert H. Humphrey III, State Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Thomas J. Foley, Washington County Attorney, and Jay A. Brunner, Assistant Washington County Attorney, 14900 61st Street North, Stillwater, MN 55082 (for appellant)

Michael F. Cromett, McMahon & Cromett Criminal Defense, PLLP, 2499 Rice Street, Suite 260, Roseville, MN 55113 (for respondent)

Considered and decided by Amundson, Presiding Judge, Short, Judge, and Mansur, Judge.[*]

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

AMUNDSON, Judge

The state challenges the district court's finding of special circumstances and subsequent stay of adjudication, over the prosecutor's objection, stating there was no clear abuse of prosecutorial discretion in charging and no special circumstances warranting the stay of adjudication. We reverse and remand for further proceedings.

FACTS

On May 9, 1997, the Washington County narcotics unit executed a search warrant on respondent Jeremy Scott Majorowicz's residence. Several items were seized, including a shoebox containing six bags containing 165 grams of marijuana. As officers prepared to leave, Elia Bettaglio and Majorowicz arrived at the residence. Upon questioning, Bettaglio admitted to possession of a small amount of marijuana, which he stated he purchased from Majorowicz for $20.

At the pre-trial hearing, Majorowicz entered a plea of guilty to count I, fifth-degree controlled substance crime (sale of marijuana), with the agreement that count II, fifth-degree controlled substance crime (possession of marijuana) would be dismissed at sentencing. A pre-sentence investigation was ordered.

The pre-sentence investigation indicated that as a juvenile, Majorowicz received a skateboarding ticket and a minor consumption ticket. The pre-sentence investigation also reflected the fact that Majorowicz continued to use controlled substances once or twice a week. The court services investigator recommended a stay of adjudication.

At sentencing, the district court entered a stay of adjudication, over the objection of the prosecuting attorney, stating that the special circumstances relied upon to grant the stay of adjudication were Majorowicz's remorse and the belief that Majorowicz was not a true drug dealer. Specifically, the court stated:

I'm going to stay adjudication of sentence and place you on probation under the supervision of Washington County Department of Court Services for a period not to exceed five years. I'm doing that because I think special circumstances do exist in your case. Not only that it's a first offense, but I think you have shown an appropriate amount of remorse and understanding. And you don't truly appear as a drug peddler, although you certainly were sharing.

The court also stated that Majorowicz was to serve 15 days in the sentence to service program, pay a $500 fine within six months, submit to a chemical dependency evaluation within a week, be subject to random urinalysis and breathalyzers at the probation officer's request, and abstain from all mood altering chemicals. The court further stated that

one of these recommendations that I like the best is you will complete the requirements for your high school diploma within six months. You've got the ability and there's no excuse for not doing it. It is a condition of the stay.

The prosecutor stated that special circumstances in this case were no different than any other case where somebody sells marijuana. This appeal followed.

D E C I S I O N

The state challenges the district court's conclusion that this case presents special circumstances in which a stay of adjudication is justified. Generally, the charging function is within the broad discretion of the prosecutor, which should not be subject to interference by the district court. State v. Foss, 556 N.W.2d 540, 540 (Minn. 1996). A district court, however, may stay an adjudication over the prosecutor's objection if the case exhibits "special circumstances." State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996).

Here, the district court found the existence of special circumstances. This case, however, is distinguishable from Krotzer. In Krotzer, the defendant was charged with third-degree criminal sexual conduct pursuant to Minn. Stat. § 609.344, subd. 1(b)(1994). Krotzer, who was 19, engaged in consensual sexual intercourse with his girlfriend, who was 14 when they began having sex. The state and Krotzer were unable to reach a plea agreement; therefore, Krotzer pleaded guilty and requested the court to stay adjudication. Over the state's objection, the district court granted Krotzer a stay of adjudication. The supreme court affirmed this court's recognition that special circumstances of the case warranted the stay of adjudication, stating that requiring Krotzer to register as a predatory sex offender[1] "would not appear to be appropriate in this case because there is no history of aggressiveness, or any aggressiveness in the present offense." Krotzer, 548 N.W.2d at 253. It is well agreed upon that the Krotzer case presented a quite unique fact situation which warranted what the supreme court termed "unusual judicial measures." See id. at 254. The Krotzer court stated that:

Although the court did not act pursuant to any express Minnesota rule or statute, its decision to stay adjudication of Krotzer's charge instead of accepting his guilty plea fell within the "inherent judicial power" we have repeatedly recognized, and was necessary to the furtherance of justice in Krotzer's case.

Id. at 254-55 (footnote omitted).

Here, the complaint, on its face, clearly supports probable cause and nowhere in the proceedings was probable cause questioned. There was no abuse in the charging of the case. The supreme court has stated that

[i]t was not our intention [in Krotzer] that mere disagreement by the trial court with the prosecutor's exercise of the charging discretion would constitute "special circumstances." Rather, it was our intention that the inherent judicial authority recognized in that case be relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor's clear abuse of discretion in the exercise of the charging function.

Foss, 556 N.W.2d at 541 (emphasis in original).

The United States Supreme Court stated that "the decision to prosecute is particularly ill-suited to judicial review." Wayte v. United States, 470 U.S. 598, 607, 105 S. Ct. 1524, 1530 (1985). As the Court noted, subjecting prosecutorial decision-making to outside review could undermine the state's effectiveness in law enforcement. Id., 470 U.S. at 607-08, 105 S. Ct. at 1530-31.

Majorowicz entered a plea of guilty to the charge related to sale of a controlled substance. The district court's stay of adjudication is not supported by "special circumstances" as required by Krotzer.

Even Majorowicz's attorney stated that Majorowicz

has always told me that what happened here was basically he had some marijuana that he purchased and he basically was just sharing it with his friends. He didn't want to lose money on the deal, obviously, so he was selling it to his friends. He was doing it out of the bedroom of his mom's house. So I would suggest to the Court that he's not a big drug dealer.

The facts support the charging decision and Majorowicz has made no case that the charging was excessive or inappropriate. No facts have been placed into evidence that the prosecutor abused his discretion in charging. The special circumstances identified by the district court are not supported by the record. Majorowicz continued to use controlled substances as noted by the pre-sentence investigation. The district court's disagreement with the prosecutor's decision of whom or what to charge is not a sufficient basis to grant a stay of adjudication.

Reversed and remanded for further proceedings.

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

[1] Under Minn. Stat. § 243.166, subd. 1 (1994), a person must register as a "predatory offender" if convicted of criminal sexual conduct under the statute with which Krotzer was charged. The law requires a "predatory offender" to comply with the registration requirements for a period of ten years.