This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1449

 

State of Minnesota,
Respondent,

vs.

Fuad Mohomoud,
Appellant.

 

Filed August 2, 2005

Affirmed

Minge, Judge

 

Olmsted County District Court

File No. K8-03-1650

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

John M. Stuart, State Public Defender, James R. Peterson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

           

            Appellant challenges the district court’s imposition of the guidelines sentence and failure to grant a downward dispositional departure.  Appellant also claims his Sixth Amendment rights were violated because the district court used a custody point in computing appellant’s criminal-history score without submitting to the jury the question of whether appellant was on probation at the time of the offense.  Because we find that substantial and compelling reasons for departing from the guidelines sentence did not exist and because the district court was not required to submit the custody-point question to the jury, we affirm. 

FACTS

A state trooper stopped the vehicle appellant Fuad Mohomoud was driving.  Appellant’s license was cancelled at the time.  Because of suspected intoxication, an Intoxilyzer test was administered; it indicated that appellant’s alcohol concentration was 0.173.  Appellant was subsequently charged with two counts of first-degree driving while impaired and one count of gross-misdemeanor driving after cancellation.  Pending trial, appellant was released on bail, subject to the condition that he abstain from using alcohol.  Because appellant violated this requirement several times, his bail was increased.  He continued to consume alcohol.

Ultimately, appellant pleaded guilty to one count of first-degree driving while impaired (DWI), in violation of Minn. Stat. § 169A.20, subd. 1(5) (2002), and one count of gross-misdemeanor driving after cancellation, in violation of Minn. Stat. § 171.24, subd. 5.  (2002). 

            To assist in sentencing, a presentence investigation report (PSI) was prepared.  The PSI noted appellant’s history of alcohol use, and it disclosed a record of six prior misdemeanor convictions, including two DWIs, and four prior felony convictions.  The PSI report also stated that appellant had refused to complete a supervised-release program that was a part of an earlier sentence, that he had committed another felony while he was supposed to be in that program, that he had committed three new offenses while serving another probationary sentence, and that he had given nine positive breath tests while on release pending trial in the current case.  The PSI further reported that his probation officer concluded that appellant refused to accept responsibility for anything he did and that despite discussions of treatment, appellant had not shown any interest in treatment until recently.  At the time of the PSI there were three new charges, including a DWI, pending against appellant.  The PSI investigator recommended that appellant be sentenced to the presumptive sentence of 60 months in prison and noted that appellant could pursue treatment opportunities in the prison system.  The presumptive sentence was based on a criminal-history score of four, with three points for felony convictions and one custody-status point for being on probation when the offense occurred.    

            Appellant also underwent a statutorily required chemical-health assessment.  The evaluator stated that appellant had a great deal of motivation for treatment.  The evaluator noted that appellant had struggled while on probation in the past and before pleading guilty to the current offense.  The evaluator noted that, looking solely at appellant’s probation record, he does not appear to be a good candidate for probationary treatment, but stated that appellant had not been in treatment in the past.  The evaluator stated that in the past appellant had not been motivated for treatment, but was now practically begging for some kind of help.  The evaluator found appellant to be chemically dependent and recommended that appellant be placed in voluntary inpatient treatment.

            At appellant’s sentencing hearing, the state asked for the presumptive sentence of 60 months of incarceration.  Although no formal motion had been made in the past, appellant’s counsel asked for a downward dispositional departure to probation so that appellant could be placed in an inpatient chemical-dependency treatment program.  Appellant’s counsel discussed the recommendations of the chemical health evaluator.  The district court found “no substantial and compelling reasons to depart from that sentence” and sentenced appellant to the presumptive sentence of incarceration for 60 months on the felony driving-under-the-influence charge.  This appeal follows.                  

D E C I S I O N

 

I.

 

            The first issue is whether the district court abused its discretion in declining to make a downward dispositional departure from the presumptive guidelines sentence.

            A district court’s decision whether to depart from the sentencing guidelines will not be overturned absent an abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  It is a rare case that warrants a reversal of the refusal to depart.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). 

The district court must apply the presumptive sentence “unless the individual case involves substantial and compelling circumstances” and may grant a motion for a dispositional departure if those circumstances exist.  Minn. Sent. Guidelines II.D.  “Substantial and compelling circumstances are those that make the facts of a particular case different from a typical case.”  State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985). 

This court has held that where compelling circumstances for a downward departure exist, the district court must consider those circumstances in addition to reasons for not departing.  State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002); State v. Curtiss, 353 N.W.2d 262, 263-64 (Minn. App. 1984).  The threshold question in such cases is whether the case involves substantial and compelling reasons for departure.  Curtiss, 353 N.W.2d at 263.  If this court finds that such compelling reasons exist and the district court did not consider them, this court should remand to the district court, not because this was an abuse of discretion, but because no exercise of discretion occurred.  Id at 264.

In this case, the district court stated that there were no substantial and compelling reasons to depart from the presumptive sentence.  The threshold question we face is whether substantial and compelling circumstances for making a dispositional departure existed.  When considering a dispositional departure, the court focuses on the defendant as an individual and on whether the presumptive sentence would be best for him and for society.  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). 

            Appellant argues that there are substantial and compelling reasons for granting a dispositional departure because the chemical-health evaluator found that appellant was chemically dependent and recommended that he undergo voluntary inpatient treatment.  In State v. Trog, the Minnesota Supreme Court found that there were compelling and substantial reasons for a downward dispositional departure.  323 N.W.2d 28, 31 (Minn. 1982).  The court held that factors relevant to determining whether a defendant is particularly suitable to individualized treatment in a probationary setting include “[his] age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family.”  Id. 

Three of the factors listed in Trog do not weigh heavily for or against probation here.  Appellant was 25 years old when he committed the crime; the defendant in Trog was young and still in school.  Id.  Since there is no evidence; the record of appellant’s “attitude while in court,” does not weigh for or against finding appellant suitable for probation.  As for a support network, appellant lives with his parents who support him with housing and finances.  Appellant has not identified any broader support network.

Unlike the defendant in Trog, who had a clean record and no history of problems with the police, appellant has been convicted of six misdemeanors, including two other DWIs and four felonies since 1998.  Id. at 29.  In addition, at the time of the PSI there were three other charges, including a DWI, pending against appellant.  The prior-record factor weighs heavily against finding that appellant is suitable to treatment in a probationary setting.

Another Trog factor is appellant’s remorse for his offense.  See id. at 31.  Although appellant told the district court, the PSI investigator, and the chemical-health evaluator that he was sorry, at the same time appellant told the PSI investigator that he was not intoxicated enough to be a danger on the highway, that he had been swerving because he was tuning the radio and looking between the seats, and that his friends were to blame because they did not tell him he was too intoxicated to drive.  In addition, while on probation, appellant continued to drink in violation of his release conditions and committed further crimes.  This is far different from the situation in Trog where the defendant was extremely contrite and shaken by the incident.  Id. at 29.  Therefore, the factor of remorse appears to weigh against finding that appellant is suitable to treatment in a probationary setting. 

The next factor is appellant’s cooperation with authorities and the court.  Appellant violated the conditions of his release on several occasions.  He was told by the district court that he could not drink anymore and continued to drink in violation of the terms of his release.  Although appellant partially cooperated with the police during the arrest, he also lied and told the officer that he had a driver’s license.  These facts show appellant was at times not cooperative with authorities and the court.  Therefore, this factor weighs against finding that appellant was amenable to probation. 

Except possibly age, none of the Trog factors support finding appellant to be suitable to individual treatment in a probationary setting, and the factors of prior criminal record, remorse and cooperation weigh against this finding.   In addition, the facts in this case are similar to those in State v. O’Brien, where a clinical psychologist recommended community-based treatment for compulsive gambling, but also admitted that the defendant had fled from authorities in the past and never voluntarily enrolled in treatment.  429 N.W.2d 293, 295-96 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988).  The O’Brien court found there was no substantial and compelling reason to support a downward dispositional departure.  Id. at 295-96.  The circumstances in this case indicate there is even less reason for it than in O’Brien.  The only real evidence that appellant would be receptive to treatment on probation is appellant’s statements immediately before sentencing that he would like to enter treatment and get his life back in order.  This does not constitute compelling and substantial circumstances supporting a dispositional departure.    

II.

            The next issue is whether appellant had a constitutional right to have a jury determine that his criminal-history score included a custody-status point.  A challenge of a defendant’s sentence raises a constitutional issue which we review de novo.  State v. Saue, 688 N.W.2d 337, 340 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005); State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

In Blakely v. Washington, the United States Supreme court held that a judge may not impose any sentence that is greater than that which can be imposed “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  124 S. Ct. 2531, 2537 (2004).  Except for the fact of a prior conviction, the accused has the right to have a jury determine all other facts that increase a defendant’s sentence beyond the statutory maximum.  See id. at 2536.

            Applying Blakely to the Minnesota Sentencing Guidelines in State v. Conger, this court held that in order to comply with the Sixth Amendment as applied in Blakely, an accused has the right to have a jury make the findings that support an upward durational departure from the presumptive sentence.  687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).[1] 

            In State v. Brooks, this court held that Blakely does not require a jury finding to establish custody-status points as part of the defendant’s criminal-history score.  690 N.W.2d 160, 163-64 (Minn. App. 2004), review granted (Minn. Mar. 15, 2005).  The Brooks court analogized the determination of custody-status points to the Blakely exception for the fact of a prior conviction.  Id. at 163-64.  The court stated that “[l]ike the fact of a prior conviction, custody-status points are established by the court’s own records.  In addition, custody-status points are based on the fact that a person has one or more prior convictions.”  Id. at 163.

            The district court in this case determined appellant’s presumptive sentence based in part on appellant’s criminal-history score, which included a custody-status point because appellant was on probation when he was arrested.  Whether appellant was on probation at the time of his arrest is established by looking at the court’s records of appellant’s prior conviction and sentence.  As the court held in Brooks, the district court need not submit the question of a custody-status point to the jury and could find the custody point on its own without violating appellant’s Sixth Amendment right as applied in Blakely.  Id.at 163-64.

            Affirmed.