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,
Elluterio Sanchez Soza, petitioner,
Filed December 29, 1998
Ramsey County District Court
File No. K393103
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Short, Judge, and Mulally, Judge.[*]
In an appeal from denial of postconviction remedies, Elluterio Sanchez Soza challenges his conviction for aiding and abetting a first degree controlled substance crime and his sentences that are double those prescribed by the Minnesota Sentencing Guidelines for first and second degree controlled substance crimes. Because the evidence is sufficient to support his conviction and the record demonstrates aggravating circumstances that justify the upward sentencing departure, we affirm.
St. Paul police arrested Elluterio Sanchez Soza following a traffic stop, during which Soza's passenger was discovered to be carrying 27.4 grams of cocaine in a solid block-like form. Police retrieved a cellular pager from Soza and a cellular telephone from the passenger.
Pursuant to a valid search warrant, police searched the residence from which Soza emerged on the night of the arrest. The search yielded: 5.2 grams of cocaine; a semi-automatic AK-47 assault rifle containing a loaded clip; ammunition for the AK-47; an automatic pistol and ammunition; 774 grams of marijuana packaged in small bags; a gram scale; a triple beam scale; a cellular phone battery; a bottle bearing a prescription label in the name of Elluterio Sanchez; a written prescription in the name of Elluterio Sanchez; a photo album containing photographs of Soza, including photographs of Soza with a rifle; two bundles of cash in the amounts of $970 and $2,970; a license plate bearing a number police had previously observed attached to a car identical to the vehicle Soza drove; and a cellular telephone bill for $706.39.
A jury convicted Soza of one count each of aiding and abetting first, second, and fifth degree controlled substance crimes in violation of Minn. Stat. §§ 152.021, subd. 1; 152.022, subd. 1(1); and 152.025, subd. 1(1) (1992). Between the date of trial and the date of sentencing, the prosecution discovered and informed the court that Soza had lied about his name and date of birth, his prior criminal convictions, and the length of time he had been in the United States. Soza has used the names Elluterio Sanchez Soza, Pedro Paniagua-Mateo, Francisco Nunez, and Farasico Nunese.
The district court sentenced Soza to an executed term of 196 months imprisonment on the first degree controlled substance crime, to be served concurrently with a 116-month sentence for the second degree controlled substance crime, and a 24-month sentence for the fifth degree controlled substance crime. Each sentence represented a double durational departure from the presumptive sentence set forth in the Minnesota Sentencing Guidelines. Three years later, Soza petitioned for postconviction relief. Following dismissal of the petition and an appeal to this court, the district court vacated the sentence for the fifth degree controlled substance conviction. Soza now appeals the denial of postconviction relief on his conviction for first degree controlled substance crime and on the upward departure from the presumptive sentences for the first and second degree controlled substance crimes.
In reviewing a postconviction order, our function is to determine whether the record sustains the findings and whether the decision constitutes an abuse of discretion. Black v. State, 560 N.W.2d 83, 85 (Minn. 1997). We will not reverse specific findings if they are supported by sufficient evidence, but we make an independent determination of the law as it applies to the facts. See Doan v. State, 306 Minn. 89, 91-92, 234 N.W.2d 824, 826-27 (1975) (upholding factual findings supported by evidence, but reviewing legal determination based on found facts independently). We address separately Soza's claims of (1) insufficient evidence, and (2) insufficient basis for upward sentencing departure.
Soza argues that the evidence does not support his conviction, as an aider and abettor, for first degree controlled substance crime. We disagree.
A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.
Minn. Stat. § 609.05, subd. 1 (1992). A person criminally liable under subdivision one
may be charged with and convicted of the crime although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.
Id., subd. 4.
Soza's passenger, whom authorities believed to be a juvenile, was not charged because he was deported to Mexico. Soza does not challenge that his passenger intended to sell cocaine. Indeed, such an argument would fail. See State v. White, 332 N.W.2d 910, 912 (Minn. 1983) (intent to sell a controlled substance may be inferred from the quantity of a drug). The block-like form of the cocaine Soza's passenger carried, the packaged marijuana, and the scales found in the residence, together with the quantity of cocaine (27.4 grams), demonstrate intent to sell.
The remaining element necessary to support conviction is an intentional act in furtherance of the crime. See State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988) (liability under an aiding and abetting theory requires some knowing role in the commission of the crime). Soza drove the car carrying the controlled substance, and his pager went off continuously for several hours after he was arrested. Soza's conduct after his arrest is also consistent with a finding of guilt. See State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993). Soza lied during his interrogation about having picked up his passenger as a hitchhiker. At trial, Soza lied about his name, date of birth, prior felony convictions, and the length of time he had been in the United States.
The items obtained from the residence pursuant to the search warrant reinforce the evidence of Soza's knowing participation. The gram scale, triple-beam scale, 774 grams of marijuana packaged in small bags, 5.2 grams of cocaine, firearms, and ammunition constitute significant evidence of drug distribution. Police saw Soza enter and leave the residence on prior occasions, and an informant had indicated Soza lived there. Police also found prescriptions in Soza's name and a photograph album containing pictures of Soza. The evidence supports Soza's conviction for first degree controlled substance crime.
The district court properly based upward departure for the first degree conviction on the high degree of sophistication or planning involved in the crime. Minn. Sent. Guidelines II.D.2.b.(5)(f). The block-like form of the cocaine and Soza's cellular pager, which went off continuously for several hours following his arrest, indicate a high level of planning. Even if we assume, for purposes of our analysis, that occupying a high position in the drug hierarchy may duplicate an element in Soza's first degree controlled substance crime, a high degree of sophistication or planning does not necessarily equate to a high position in the drug hierarchy. The court could rely on the level of planning and sophistication and also on Soza's lying to the court about his identity and concealing his prior felony record to reduce his criminal history score. See United States v. Dunnigan, 507 U.S. 87, 113 S. Ct. 1111 (1993) (a defendant's perjury is a reasonable ground for enhancing a sentence).
Departure for the second degree controlled substance conviction was also justified by nonduplicative factors. First, Soza possessed a firearm during the commission of the offense. Minn. Sent. Guidelines II.D.2.b.(5)(d). Soza does not challenge the trial court's reliance on the presence of the firearm at the residence as a basis for departure. Second, the evidence supporting this offense also demonstrated a high degree of sophistication or planning: the presence of the gram and triple-beam scales, the second set of license plates, and the packaging of the marijuana into street-sized bags.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.