This opinion will be unpublished and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

A05-1768

 

State of Minnesota,

Appellant,

 

vs.

 

Brion Kelly Burns,

Respondent.

 

Filed January 31, 2006

Reversed and remanded; motion granted

Gordon W. Shumaker, Judge

 

Dakota County District Court

File No. K8-05-585

 

 

 

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

 

James C. Backstrom, Dakota County Attorney, Thomas L. Folie, Special Staff Assistant County Attorney, 1560 West Highway 55, Hastings, MN 55033 (for appellant)

 

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for respondent)

 

 

            Considered and decided by Peterson, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant State of Minnesota challenges the district court’s order staying adjudication of respondent’s criminal conviction, over appellant’s objection, arguing that a stay of adjudication was not justified because no special circumstances existed and respondent was not selectively prosecuted.  Because we find that no special circumstances existed and do not reach the issue of selective prosecution because it was not raised in the district court, the stay of adjudication was not proper, and we reverse and remand for re-sentencing.

FACTS

            Respondent Brion Kelly Burns applied for and received public assistance benefits in 2004.  As part of the application process, he was required to report changes in household status to his financial worker within 10 days.  Burns had custody of his daughter when he initially applied for assistance, but sometime around May 2004, his daughter moved to her grandmother’s house because Burns was unable to care for her. 

            A Dakota County Employment and Economic Assistance Agency worker investigated and found that the child left Burns’s care in May 2004.  Burns admitted that the child moved out of his residence and that he did not report the information since he could not afford to maintain himself financially without the assistance.  He received $4,126 in public assistance benefits to which he was not entitled.

            Burns was charged with wrongfully obtaining public assistance, and a plea agreement was reached. The agreement called for a stay of imposition of sentence with three years of probation and other terms.  But after accepting Burns’s guilty plea, the court stayed the adjudication of the conviction and placed Burns on probation for five years.  The state objected to the stay of adjudication.  This appeal followed.

D E C I S I O N

I.

            A clear-abuse-of-discretion standard applies to appellate review of stays of adjudication of criminal convictions.  State v. Angotti, 633 N.W.2d 554, 556 (Minn. App. 2001).  The district court’s decision to stay adjudication is within the court’s “inherent judicial power” when the decision is supported by “special circumstances.”  State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn. 1996).  But unless the prosecutor abuses his or her discretion or demonstrates improper intent, “the judiciary is powerless to interfere with the prosecutor’s charging authority.”  State v. Lee, 706 N.W.2d 491, 494 (Minn. 2005 (citing Krotzer, 548 N.W.2d at 254); see also State v. Colby, 657 N.W.2d 897, 899 (Minn. App. 2003) (holding that district courts may stay adjudication of a charge only where there is a “clear abuse of prosecutorial discretion in charging.” 

The power to stay adjudication is to 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.”  State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996); see also State v. Ohrt, 619 N.W.2d 790, 792-93 (Minn. App. 2000) (reversing stay of adjudication when the district court made no findings regarding an abuse of prosecutorial discretion).  The Foss court also noted that “mere disagreement” by the trial court with the prosecutor’s exercise of charging would not constitute “special circumstances” justifying a stay under Krotzer.  Foss, 556 N.W.2d at 541.  The legislature has provided that, unless the prosecutor agrees, “a court may not refuse to adjudicate the guilt of a defendant who tenders a guilty plea . . . or who has been found guilty by a court or jury following a trial.”  Minn. Stat. § 609.095(b) (2002).

Here, the parties reached a plea agreement whereby Burns would plead guilty to wrongfully obtaining public assistance and would receive a stay of imposition of sentence, probation up to three years, seven days in a Sentence to Service program, and would pay restitution and a fine as determined by the court, as well as a surcharge.  But after the district court found an adequate factual basis for the guilty plea, it stayed adjudication because Burns explained that he was depressed during the period he fraudulently received public assistance and was remorseful.  The district court noted, “it appears to me that society would benefit from you receiving a stay of adjudication and I will do so.”

The state objected to a stay of adjudication, and the district court clarified that it believed that special circumstances existed for the stay, namely: Burns’s remorse for his actions and that Burns was operating under “depression” which “put him in this position.”

To impose a stay of adjudication over the prosecutor’s objection, the district court must find “special circumstances.”  Krotzer, 548 N.W.2d at 254-55.  Here, the district court cited appellant’s “remorse” and “depression” as special circumstances.  But remorse and depression as a cause for welfare fraud are not special circumstances justifying a stay of adjudication.  See State v. Streiff, 673 N.W.2d 831, 837 n.4 (Minn. 2004) (commenting favorably on State v. Leming, 617 N.W.2d 587 (Minn. App. 2000), where the court of appeals enumerated several factors that would not qualify as “special circumstances,” including possibility of loss of employment, the inability of the defendant to pay restitution if she lost her job, the victim’s agreement to the stay, the defendant’s lack of a criminal record, and the defendant’s remorse). 

In Leming, this court noted that “[r]emorse and cooperation with authorities are also not special circumstances; of course, a sentencing court is free to take into account a defendant's cooperation.”  Leming, 617 N.W.2d at 589-90.  And the supreme court has rejected as a special circumstance the justification that a defendant was impacted by a traumatic event such that it affected the defendant’s emotional and mental state at the time the offense was committed.  State v. Hauer, No. C5-96-249 (Minn. Dec. 11, 1996) (unpublished order rejecting claim of special circumstances in a welfare fraud case, stating, “In almost every case of [welfare fraud], a case could be made that it might make more sense to stay adjudication.”).

Because remorse and depression do not qualify as special circumstances justifying a stay of adjudication, we conclude that the district court erred in granting Burns a stay of adjudication.  And because respondent did not argue that he was selectively prosecuted below, nor is there any evidence in the record to suggest this occurred, we reverse the district court’s ruling and remand for imposition of sentence not inconsistent with this opinion.

II.

Respondent’s brief also contains an argument that he was selectively prosecuted.  Appellant filed a motion to strike this portion of the brief on the grounds that respondent raised this argument for the first time on appeal.  Generally, this court will not consider matters not argued and considered in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  There is no evidence in the record that respondent raised a selective-prosecution argument before the district court.  We therefore grant the motion to strike and decline to address respondent’s selective-prosecution argument.

            Reversed and remanded; motion granted.