This opinion will be unpublished and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

A05-1282

                                                                                   

State of Minnesota,

Respondent,

 

vs.

 

Jeri Jerome Knopik,

Appellant.

 

Filed May 9, 2006

Affirmed

Peterson, Judge

 

Brown County District Court

File No. 08-KX-04-000519

 

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

 

James R. Olson, Brown County Attorney, 519 Center Street, P.O. Box 428, New Ulm, MN  56073 (for respondent)

 

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

 

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

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from his conviction of second-degree controlled-substance offense, appellant Jeri Jerome Knopik challenges (1) the district court’s refusal to grant a dispositional departure; and (2) the use of a custody-status point in sentencing when a jury did not determine that he was on probation at the time of the offense and he did not waive his right to have a jury determine every fact used to support an increase in his sentence.  We affirm.

FACTS

            Knopik was initially charged with first-degree controlled-substance offense for selling methamphetamine to an undercover officer.  The state later amended the complaint to charge second-degree controlled-substance offense.

            Knopik pleaded guilty to the second-degree charge under a “straight plea” that included no agreement as to sentence.  A presentence-investigation report showed that Knopik had four prior misdemeanor or gross-misdemeanor convictions, but no prior felonies.  The sentencing worksheet assigned Knopik a custody-status point for being on probation at the time of the controlled-substance offense. 

            Knopik moved for a dispositional departure and submitted the testimony of a dispositional advisor for the public defender’s office, who recommended that the court impose a “staggered incarceration sentence.”  The dispositional advisor testified that Knopik had made several voluntary attempts at chemical-dependency treatment and that he had the support of his mother, although she was not able at that time to provide him a residence.  The dispositional advisor also recommended that Knopik be sent to a treatment program specifically for methamphetamine addicts.  She admitted on cross-examination that Knopik had failed in four different treatment programs, two inpatient and two outpatient, and completed one but then relapsed. 

            Knopik’s counsel argued that factors supporting a dispositional departure included that Knopik was young, had no prior felonies, was remorseful, and had attempted to work with the Drug Task Force after his arrest.  The prosecutor opposed a departure, arguing that Knopik was deeply involved in the local drug-dealing culture, as demonstrated by the more than 100 phone numbers on his cell phone, which police suspected were the numbers of customers or dealers. 

            Following a recess, the district court found that Knopik was not particularly amenable to probation, noting that Knopik had violated probation in the past, and concluded that there was no basis for a downward departure.  The district court imposed the presumptive sentence of 58 months executed.

D E C I S I O N

            The district court has broad discretion when sentencing and “we generally will not interfere with the exercise of that discretion.”  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  But the district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” that warrant a departure.  Id.; see also State v. Anderson, 463 N.W.2d 551, 555 (Minn. App. 1990) (applying abuse-of-discretion standard in evaluating denial of downward departure), review denied (Minn. Jan. 14, 1991).  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.

            Knopik argues that the district court failed to properly exercise its discretion when it denied his motion for a dispositional departure.  Knopik contends that the district court did not “deliberately” consider the circumstances favoring a departure as it did those opposing a departure.  See State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002) (“If the district court has discretion to depart . . ., it must exercise that discretion by deliberately considering circumstances for and against departure.”), review denied (Minn. Apr. 16, 2002).  The state argues that there were no mitigating factors, and therefore the district court had no discretion to depart and Mendoza does not apply. 

            The supreme court has explained with respect to dispositional departures that “just as a defendant’s particular unamenability to probation will justify departure in the form of an execution of a presumptively stayed sentence, a defendant’s particular amenability to individualized treatment in a probationary setting will justify departure in the form of a stay of execution of a presumptively executed sentence.”  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  The district court heard the testimony of the public-defender dispositional advisor, and the argument of defense counsel, both pointing to mitigating circumstances, including Knopik’s age, his remorse, his cooperation, and his willingness to seek treatment.  See id. (listing factors indicating amenability to probation).  But the record also demonstrates that Knopik had failed treatment five times, had never “completed a probationary sentence without at least one violation,” and had violated his conditions of pretrial release by using methamphetamine.

            The district court did not recite the circumstances favoring a departure before it imposed the presumptive sentence.  But there is no case law holding that the district court must do so.  This court has remanded for reconsideration when the circumstances at sentencing make it clear that the district court did not exercise its discretion.  In Mendoza, the district court acknowledged that there were arguments favoring a dispositional departure, but concluded that because the defendant was subject to deportation if she were not imprisoned, a probationary sentence was “really impossible and impractical.” 638 N.W.2d at 482.  After concluding that the district court should not have considered the defendant’s immigration status, this court remanded for the district court to exercise its discretion and consider the factors favoring, as well as those weighing against, departure.  Id. at 483-84.

            This case is not like Mendoza, in which factors favoring probation were negated by an improper consideration like immigration status.  Knopik is young and has no prior felonies, which are factors favoring probation.  But his record of failure in treatment and on probation weighs strongly against finding him particularly amenable to probation.  The district court was not required to engage in a lengthy analysis on the record weighing these facts against the mitigating circumstances.  Knopik has not shown that the district court failed to exercise its discretion when denying his request for a dispositional departure.  Instead, the record indicates that the district court considered factors for and against departure and concluded that Knopik is not particularly amenable to individualized treatment in a probationary setting.

            Knopik also argues that the assignment of a custody-status point when determining his presumptive sentence violated his right to a jury trial under Blakely v. Washington, 542 U.S. 296, 313, 124 S. Ct. 2531, 2543 (2004).  But after Knopik submitted his brief, the supreme court held that the assignment of a custody-status point fits within the “prior conviction” exception recognized in Blakely.  State v. Allen, 706 N.W.2d 40, 48 (Minn. 2005).  Knopik was on probation, the same type of custody status that was at issue in Allen, which, therefore, is not factually distinguishable.  Under Allen, Knopik is not entitled to relief under Blakely.           

            Affirmed.