STATE OF MINNESOTA

IN COURT OF APPEALS

A05-64

State of Minnesota,
Respondent,

vs.

Curtis Eugene Ramey,
Appellant.

Filed January 31, 2006

Affirmed

Stoneburner, Judge

Olmsted County District Court

File No. K0042107

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, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.*

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

STONEBURNER, Judge

Appellant challenges his felony DWI sentence, arguing that the district court abused its discretion in denying his motion for a downward dispositional departure. Appellant also argues that the use of a custody-status point, determined by the court, violated his right to a jury trial under Blakely. We affirm.

FACTS

Appellant Curtis Eugene Ramey was charged with two counts of first-degree DWI, and one count each of terroristic threats, gross-misdemeanor driving after cancellation, open bottle, and possession of small amounts of marijuana. Appellant pleaded guilty to one count of first-degree DWI in exchange for dismissal of the remaining five counts. At the plea hearing, the district court pointed out that the sentencing worksheet included four criminal-history points, explained to appellant that this meant a presumptive sentence of between 57 and 63 months, and asked if appellant had discussed this with his attorney. Appellant stated that he had. The district court accepted appellant’s guilty plea, set a sentencing date, and ordered a presentence investigation report (PSI).

Appellant moved for a downward departure, requesting that the presumed sentence be stayed and that he be placed on probation or, in the alternative, that he receive a staggered sentence and that the court mitigate the sentence by reducing the period of time of the executed sentence. Appellant argued that he was approved for outpatient chemical-dependency treatment with funding, that he had never had treatment before, that he was ready to participate in treatment, and that a staggered sentence would provide incentive to stay sober. Appellant stated that he took advantage of AA and NA programs in jail and that his fiancée provides motivation to stay sober. Appellant admitted that he was on probation at the time of the offense.

The state requested the presumptive sentence of 60 months in prison, noting that this was appellant’s fourteenth criminal conviction, fourth felony conviction, and sixth DWI conviction. The state asserted that the frequency and severity of appellant’s crimes were increasing, that appellant was at high risk to reoffend, that this DWI was a level-seven offense, and that appellant had four criminal-history points. The state further argued that the guilty plea was not a “run of the mill” DWI because appellant had also been charged with terroristic threats toward a 14-year-old girl. The state pointed out that appellant had been on probation before and violated his probation, that appellant’s history of drug and alcohol abuse have been factors in his previous probation violations, and that appellant was on probation at the time of the present offense.

The state then attacked appellant’s motives and amenability to treatment, arguing that while appellant completed some chemical-dependency evaluations, according to the PSI report appellant made virtually no progress. The state noted that, according to the PSI report, the Rule 25 assessor believed appellant was dishonest and questioned appellant’s motives. The state further noted that appellant became involved in chemical-dependency programming the day before his guilty plea and that he did not participate in AA and NA programs until he was in jail. Finally, the state argued that court services found appellant not amenable to treatment and that appellant stated he was reluctant to accept treatment in prison.

After hearing arguments from both parties, the district court stated, “Mr. Ramey, I do not find any substantial or compelling reasons to depart from the guidelines. I don’t find you amenable to probationary services.” The court denied appellant’s motion for downward departure and sentenced him to the presumptive sentence of 60 months in prison. This appeal followed.

D E C I S I O N

I. Downward dispositional departure

Appellant asserts that because he had been accepted into a treatment program and was amenable to probation, the district court erred by denying his motion for a downward dispositional departure from the sentencing guidelines. An appellate court can review a sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court. Minn. Stat. § 244.11, subd. 2(b) (2004). But whether to depart from the sentencing guidelines rests within the district court’s discretion, and we will not reverse the district court’s decision absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” that warrant a downward departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). “[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.” State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).

The mitigating and aggravating factors listed in section II.D. of the Guidelines focus primarily on the degree of a defendant’s culpability. However, when justifying only a dispositional departure, the trial court can focus more 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) (emphasis in original).

A district court may choose to depart from the presumptive guidelines sentence by imposing probation instead of an executed sentence when a defendant is amenable to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Amenability to probation depends on numerous factors, including the defendant’s age, prior record, remorse, cooperation, attitude while in court, and support of friends and/or family. Id. Although a district court may rely on a defendant’s strong rehabilitative effort as an indication that the defendant is amenable to probation, the court has the obligation to weigh that against other factors that relate to dispositional departures. See State v. Anderson, 463 N.W.2d 551, 555 (Minn. App. 1990) (concluding that, when factors both for and against granting downward departure exist, decision is committed to discretion of district court), review denied (Minn. Jan. 14, 1991). 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, 264 (Minn. App. 1984). “The threshold question is whether the case involves compelling circumstances for departure.” Curtiss, 353 N.W.2d at 263. If an appellate court finds that such compelling reasons exist and the district court did not consider them, the appellate 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.

A written explanation is not required when a district court elects to impose the presumptive sentence after considering reasons for departure. Id.at 263. “Even where grounds exist justifying departure, an appellate court will not ordinarily interfere with the imposition of the presumptive sentence. State v. Evenson, 554 N.W.2d 409, 412 (Minn. App. 1996) (citing State v. Back, 341 N.W.2d 273, 275 (Minn. 1983)), review denied (Minn. Oct. 29, 1996). Only in a “rare” case will a reviewing court reverse a district court’s imposition of the presumptive sentence. Kindem, 313 N.W.2d at 7.

Appellant argues that the district court abused its discretion because it did not deliberately consider all of the Trog factors concerning his amenability for probation and did not compare the factors favoring departure with the factors favoring the presumptive sentence. But there is nothing in the record to support appellant’s assertion that the district court did not consider the Trog factors, despite the fact that the district court’s analysis does not appear on the record.

Applying the Trog factors to appellant’s circumstance demonstrates that the district court did not abuse its discretion in determining that appellant is not amenable to probation. Appellant admits that his age is a neutral factor. Appellant fails to address his record of five prior DWI convictions between 1992 and 2002 or his convictions of domestic assault, worthless checks, theft, felony damage to property, felony theft, and felony controlled substance. Appellant’s prior record clearly does not favor amenability to probation. Whether appellant’s remorse, cooperation, and attitude in court support amenability to probation is, at best, questionable given his dishonesty in the chemical-dependency assessment to serve his own needs, the favorable plea agreement, the timing of his desire for treatment, and the fact that appellant committed the present offense despite being on probation for three prior felonies and for a prior DWI. Finally, despite appellant’s argument that his fiancée provides support for him to become and remain sober, according to his PSI report “his choice to drive [in this incident] was triggered by a disagreement with his girlfriend, which caused him to turn to what he had become accustomed to doing since a teenager, i.e., drinking and driving.” This suggests that even if appellant’s fiancée supports appellant in becoming and remaining sober, she can also trigger his drinking and driving. The only other friends or family that appellant mentioned are friends that he moved away from because they “influenced his drug and alcohol use.” Therefore, appellant has failed to establish support of friends or family as a factor making him amenable to probation.

Appellant cites State v. Hickman, 666 N.W.2d 729, 732 (Minn. App. 2003), for the proposition that he need not satisfy all of the Trog factors to justify a dispositional departure. But Hickman was convicted of tax evasion, not DWI, and had made restitution. Id. at 730-31. The only questionable Trog factor in Hickman was remorse, about which the appellate court stated, “Hickman’s minimization of his offense indicates he was less than fully remorseful.” Id. at 732. In the present case, none of the Trog factors clearly favors amenability to probation. The district court did not abuse its discretion by concluding that appellant is not amenable to probation. The district court heard arguments for and against a sentencing departure and found no substantial or compelling reasons to depart. Even if the district court erred by failing to expressly state consideration of the Trog factors, an error that does not affect substantial rights is to be disregarded. Minn. R. Crim. P. 31.01.

II. Custody-status point

Appellant argues that the imposition of a custody-status point, which enhanced his sentence beyond that otherwise authorized, violated his rights under the Sixth Amendment and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The application of Blakely presents a constitutional issue, which this court reviews de novo. State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

Appellate courts “generally will not decide issues which were not raised before the district court, including constitutional questions of criminal procedure.” Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (citation omitted). Because this argument was not raised in the district court, we decline to address it except to note that this issue is

controlled by State v. Allen, 706 N.W.2d 40, 48 (Minn. 2005) (rejecting argument that finding of custody-status point implicates Blakely).

Affirmed.

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