This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-228

 

 

State of Minnesota,

Respondent,

 

vs.

 

William J. Grady,

Appellant.

 

 

Filed March 27, 2007

Affirmed

Lansing, Judge

 

 

Sherburne County District Court

File No. K6-05-0546

 

 

Lori Swanson, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Kathleen A. Heaney, Sherburne County Attorney, Samuel Wertheimer II, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)

 

John A. Price III, 22530 Forest Ridge Drive, Lakeville, MN 55044 (for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            William Grady appeals his aggravated sentence for criminal vehicular homicide, arguing that the district court relied on improper aggravating factors, ignored significant mitigating factors, and imposed a sentence that is disproportionate to the severity of the crime.  Because the court acted within its discretion by imposing the double durational departure and because the constitutional arguments in Grady’s pro se brief do not present a basis for reversal, we affirm.

F A C T S

            The Sherburne County District Court convicted William Grady of two counts of criminal vehicular homicide and one count of violation of a restricted driver’s license in October 2005.  The facts are not in dispute.

            Grady is a repeat driving-while-impaired (DWI) offender, with five DWI convictions between 1978 and 1992.  After receiving his third DWI in October 1981, Grady was ordered to enter a rehabilitation program.  He completed rehabilitation in April 1988 and, less than two months later, received his fourth DWI.  As a result of the fourth DWI, Grady’s driver’s license was revoked for two years, and he was again ordered into rehabilitation.  Grady’s license was reinstated in June 1990, and he received his fifth DWI in 1992.  After Grady’s fifth DWI, his license was revoked for ten years, and he was ordered into rehabilitation for a third time.  In 2002 Grady completed rehabilitation and his license was reinstated.  As a condition of the reinstatement Grady signed a declaration promising to abstain from alcohol and controlled substances. 

            In March 2005 Grady was driving his Ford Expedition just after midnight and turned onto Highway 169, a four-lane divided highway, proceeding south.  Grady, who had been consuming alcohol while playing cards at a friend’s house, was unaware that he had turned into the northbound lanes and was driving against traffic.  Motorists on Highway 169 attempted to alert Grady to his error by waving at him and flashing their headlights.  Other motorists called 911 to notify the police.

            After traveling almost four miles on the wrong side of the divided highway against oncoming traffic, Grady struck a Honda Accord head-on.  The impact of the collision partially ejected the driver, Christine Heath from her car.  Heath was pinned underneath the burning car as it came to rest in the median.  She died from multiple traumatic injuries sustained in the crash. 

            Grady told police officers who responded to the 911 calls that Heath had been driving in the wrong lane.  He admitted that he had consumed a “couple of” beers earlier in the evening, and police obtained a blood sample at a hospital less than two hours after the accident.  The sample evidenced an alcohol concentration of .26.

            Sherburne County charged Grady with three counts of criminal vehicular homicide resulting in death, one count of violation of a restricted driver’s license, and one count of third-degree driving while impaired.  The county later dismissed one of the criminal vehicular homicide charges and the driving-while-impaired charge. 

            Grady waived his trial rights and submitted the issue of guilt to the court under the procedure set out in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  Grady also waived his Blakely trial rights and submitted the issue of aggravating sentencing factors to the court on stipulated facts.  The district court found Grady guilty on each of the three remaining counts but imposed a sentence only for one criminal-vehicular-homicide conviction.  On that conviction the court determined that aggravating factors warranted a double departure, rejected defense arguments on mitigating factors, and sentenced Grady to ninety-six months in prison.

            Grady appeals his sentence, arguing that the district court relied on invalid aggravating factors to support the double departure, that the district court improperly rejected his arguments on mitigating factors, and imposed a sentence that is disproportionate to the severity of the offense.  In a separate pro se brief Grady also argues that the Blakely sentencing procedures used by the district court violated his constitutional rights. 

D E C I S I O N

I

            A district court may depart from the presumptive sentence if “substantial and compelling” circumstances have been proved beyond a reasonable doubt.  Minn. Sent. Guidelines II.D; State v. Griller, 583 N.W.2d 736, 744 (Minn. 1998).  The decision to depart is reviewed under the abuse-of-discretion standard.  Griller, 583 N.W.2d at 744.  In general, an upward departure is not an abuse of discretion if the conduct involved is significantly more serious than the conduct that ordinarily occurs in the commission of the particular crime.  State v. Rasinski, 472 N.W.2d 645, 649 (Minn. 1991) (citing State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984)).  Conversely, a district court abuses its discretion by not considering the presence of mitigating factors.  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). 

            Grady argues that the district court relied on four invalid factors as bases for the aggravated sentence.  These factors are Grady’s (1) alcohol concentration of .26; (2) violation of the terms of a restricted driver’s license; (3) five prior driving-while-impaired (DWI) convictions; and (4) conduct that presented a greater-than-normal danger to public safety.  We address each factor separately.

Grady contends, first, that his alcohol concentration cannot be used as an aggravating factor because it is an element of the crime charged.  See Minn. Stat. § 609.21, subd. 1(4) (2004) (imposing criminal liability for causing death of another while operating motor vehicle with alcohol concentration of 0.10 or more as measured within two hours of time of driving).  According to Grady, the legislature already factored in an alcohol concentration exceeding 0.10 by using the phrase “or more” in the statute.  He analogizes this to the use of the modifier “great” in State v. Herrmann,479 N.W.2d 724, 731 (Minn. App. 1992) (holding that when crime charged requires “great bodily harm” seriousness of victim’s injuries cannot be aggravating factor), review denied (Minn. Mar. 19, 1992).  We disagree.

The phrase “or more” and the word “great” have dissimilar purposes in the respective statutes.  The phrase “or more” is necessary to quantitatively identify the entire range of prohibited conduct, while “great” qualitatively describes a specific area within a range of prohibited conduct.  In other words, “or more” identifies a set of prohibited conduct while “great” creates a subset of prohibited conduct.  Thus “or more” does not preclude the use of an extremely high alcohol concentration as an aggravating factor in the same way that “great” precludes the use of significant injury as an aggravating factor.

This distinction is supported by appellate opinions that affirm the use of extreme intoxication as an aggravating factor in criminal-vehicular-homicide cases.  See State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995) (finding aggravating circumstances when alcohol concentration was .25); State v. Gebeck, 635 N.W.2d 385, 390 (Minn. App. 2001) (finding aggravating factor when alcohol concentration was .25); State v. Condon, 497 N.W.2d 272, 276 (Minn. App. 1993) (justifying greater-than-double durational departure when alcohol concentration was .27); State v. Williams, 414 N.W.2d 781, 782 (Minn. App. 1987) (upholding upward-durational departure when alcohol concentration was .26), review denied (Minn. Jan. 15, 1988).  Grady’s alcohol concentration of .26 falls squarely within this range.  Consequently, Grady’s high alcohol concentration was an appropriate aggravating factor.

Grady’s second argument is that the violation of his restricted driver’s license does not constitute an aggravating factor because it is conduct that serves as the basis for a separate conviction.  As the supreme court noted in State v. Cox, when assessing aggravating factors “the [district] court may not consider evidence that points to the defendant’s guilt of some other offense but that does not support the conclusion that the defendant committed the offense in question in a particularly serious way.”  343  N.W.2d at 643; see also State v. Spaeth, 552 N.W.2d 187, 196 (Minn. 1996) (suggesting that consideration of conduct underlying different offenses should be limited to offenses for which no sentence is imposed).  Grady focuses on the first part of the Cox statement but ignores the remainder. 

Evidence of a separate conviction on an unsentenced offense is acceptable if it also enhances the gravity of the offense for which the defendant is being sentenced.  Cox, 343 N.W.2d at 643.  Grady’s violation of his restricted license is not only the basis for another offense but is also evidence that he committed the sentenced offense in a more serious manner because it demonstrates that he was engaging in conduct that he had been specifically warned against, that he had expressly promised not to undertake, and that showed a “callousness towards other motorists.”  Rasinski, 472 N.W.2d at 650; see also Chaklos, 528 N.W.2d at 228 (citing driving without insurance as aggravating factor); Herrmann, 479 N.W.2d at 731 (citing driving without valid license as aggravating factor).  The district court did not abuse its discretion on this factor.

Grady’s third argument is that his prior DWIs should not serve as aggravating factors because they are not sufficiently recent.  See Minn. Sent. Guidelines II.B.03.c (setting ten-year decay period for prior misdemeanors and gross misdemeanors in computing criminal-history scores).  The supreme court has upheld the use of “nondecayed” DWIs so long as they were not also included in computing the defendant’s criminal-history score.  Rasinski, 472 N.W.2d at 649-50; State v. McGee, 347 N.W.2d 802, 806 (Minn. 1984).  It is unclear whether decayed DWIs are also acceptable, but we need not address that question because the issue is not so narrowly drawn.  Under State v. Wilkinson, “chemical dependence and disregard for the effects of . . . alcohol use . . . may be used as a basis for departure.”  539 N.W.2d 249, 254 (Minn. App. 1995).  And at Grady’s sentencing hearing the district court observed that Grady’s prior DWIs had provided him with “five opportunities,” all of which he ignored, “to understand that his conduct was illegal, that there were resources available to reform that conduct, and that there was punishment to be imposed if he continued . . . that behavior.”  Grady’s decayed DWIs were therefore considered as evidence of his intentional disregard of the predictable effects of alcohol use despite these cautionary events, rather than as aggravating factors in their own right.  Thus the district court did not abuse its discretion in considering the decayed DWIs.

Fourth, Grady argues that his driving was not significantly more dangerous than the conduct usually found in criminal-vehicular-homicide cases.  See Rasinski, 472 N.W.2d at 649 (citing unusual dangerousness as necessity for departure).  Grady also argues that other cases suggest that the hallmark of more-dangerous driving is a driver’s failure to heed his own awareness that he is driving recklessly.  See Gebeck, 635 N.W.2d at 390 (citing excessive speed with high alcohol concentration as aggravating factor); Williams, 414 N.W.2d at 782 (noting that extremely intoxicated driver’s two near-accidents immediately before crash heightened seriousness of conduct in criminal vehicular operation).  Grady reasons that he is less culpable because he was not aware that he was driving dangerously until after the accident.

We disagree.  Grady’s lack of awareness was brought on by his self-induced extreme intoxication, which prevented him from noticing that he had turned into the wrong lanes, that he was driving against oncoming traffic, and that other drivers were visibly warning him of his dangerous driving.  But more importantly, the determination that conduct is significantly more dangerous than normal rests on all of the facts surrounding the offense.  These facts include Grady’s driving a large SUV in the wrong direction on a major highway while intoxicated for almost four miles before the head-on collision.  Grady’s argument that his conduct was no more serious than the “normal” criminal-vehicular-homicide case is not supported by the facts. 

The district court did not abuse its discretion by relying on each of the four factors in imposing a double-upward departure.

            Grady next argues that the court abused its discretion by failing to consider mitigating factors because it categorically ignored evidence of Trog factors that he put forth as reasons for a downward-durational departure.  See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (discussing factors evidencing amenability to probation).  Grady’s argument is misplaced.  The district court did consider the Trog factors in determining that Grady was not amenable to probation.  Grady argues that the Trog factors should also weigh on the court’s decision to depart from the presumptive sentence, but his argument is contradicted by case law, which explains that decisions to depart upward durationally are influenced by offense-related factors and not by offender-related Trog factors.  Chaklos, 528 N.W.2d at 228 (explaining that offender-related factor may be used in dispositional-departure considerations but not in durational-departure considerations).  We see no reason to establish an opposite rule for situations involving downward departures.  Hence, the district court did not abuse its discretion by declining to apply the Trog factors when addressing the duration of Grady’s sentence.

Finally, Grady argues that his sentence is disproportionate to other criminal-vehicular-homicide cases and inconsistent with the goals of sentencing.  The gravity of Grady’s offense as compared to other criminal-vehicular-homicide cases is evident, and Grady’s sentence is comparable to other cases of similar severity.  See State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988) (recognizing that double duration usually limits departure unless severe aggravating circumstances are present).  The district court did not abuse its discretion by imposing a sentence of ninety-six months.

II

            In his pro se brief, Grady argues that the Blakely procedures used in determining the presence of aggravating factors are unconstitutional because they constitute ex post facto laws that were instituted retrospectively after the date of his offense, and they do not satisfy the constitutional requirement that a complaint contain every element of the crime charged.  Grady also argues that the aggravating factors were not proper bases for departure because they either did not constitute separate offenses or constituted separate offenses of which he was not convicted.  Grady’s arguments are unsupported by the law.

            In Hankerson v. State, the supreme court held that “the retrospective application of the 2005 [Blakely]amendments . . . is not prohibited as an ex post facto law because the change was procedural, it inured to [the defendant’s] advantage, and [the defendant] was on notice of the criminality of her conduct and its potential punishment.”  723 N.W.2d 232, 243-44 (Minn. 2006).  And in an opinion filed simultaneously with Hankerson, the supreme court held that “the aggravating factor of victim vulnerability need not be alleged in the complaint” in order for due process to be upheld.  State v. Chauvin, 723 N.W.2d 20, 30 (Minn. 2006).  Thus the aggravating factors applied in this case did not need to be alleged in the complaint. 

            Finally, Grady’s remaining argument cannot succeed because a district court is permitted to consider, for sentencing purposes, a defendant’s course of conduct in the commission of an offense.  Cox, 343 N.W.2d at 643.  Furthermore, Grady waived his right to a jury trial on the aggravating factors, and the district court found that each factor was proved beyond a reasonable doubt.  See Minn. Sent. Guidelines II.D (permitting departure from presumptive sentence if “substantial and compelling” circumstances are proved beyond reasonable doubt).

            Affirmed.