This opinion will be unpublished and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

A06-730

 

State of Minnesota,
Respondent,

vs.

Patricia A. Keener,
Appellant.

 

Filed July 3, 2007

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 05034525

 

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

 

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

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

 

            Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

 

PETERSON, Judge

            In this sentencing appeal, appellant argues that the district court abused its discretion by denying her request for a downward dispositional departure.  We affirm.

FACTS

            While driving at approximately 2:45 p.m. on March 12, 2005, appellant Patricia A. Keener approached an intersection that was controlled by stop signs in all four directions.  There were also red, flashing, overhead lights in all four directions.  Appellant failed to stop at the intersection, and crashed into another vehicle.  The driver of the other vehicle died a short time later as a result of injuries suffered in the crash.   

            A sample of appellant’s blood that was taken shortly after the crash tested positive for amphetamine, methamphetamine, phenylpropanolimine, and ephedrine in levels that were classified as moderate to high and consistent with levels of regular drug use.  Appellant was charged with criminal vehicular homicide while operating a motor vehicle in a negligent manner with a controlled substance in her body in violation of Minn. Stat. § 609.21, subd. 1(6) (2004), and criminal vehicular homicide while operating a motor vehicle in a grossly negligent manner in violation of Minn. Stat. § 609.21, subd. 1(1) (2004). 

            A Minnesota State Highway Patrol officer reconstructed the accident and concluded that appellant’s vehicle was traveling between 56 and 60 miles per hour and that neither road and weather conditions nor mechanical defects in appellant’s vehicle contributed to the crash.  Appellant admitted going through the stop sign, but denied using illegal drugs.  Appellant indicated that she did not believe that she has chemical issues.  Appellant admitted using methamphetamine on a regular basis during the two years preceding the accident.  Appellant denied that methamphetamine impaired her driving ability or played a role in the crash. 

            Upon completing a rule-25 chemical-dependency evaluation, appellant was diagnosed as in need of immediate chemical-health treatment and referred to the inpatient program at Vinland Center.  Appellant completed the inpatient, chemical-dependency program in which she became more aware of her need for treatment.  Appellant then completed Vinland Center’s eight-week, outpatient, after-care treatment program.  Appellant’s attorney noted that upon discharge, appellant was very compliant, continued to make progress in her treatment, and appeared to take responsibility for her actions and to display sincere remorse.  Appellant’s attorney also noted that appellant’s prognosis upon discharge was good.    

            Appellant pleaded guilty to criminal vehicular homicide while operating a motor vehicle in a negligent manner with a controlled substance in her body, and the charge under Minn. Stat. § 609.21, subd. 1(1), was dismissed.  At sentencing, the state requested the 48-month presumptive guidelines sentence, and appellant requested a downward dispositional departure.  The district court imposed the presumptive sentence.  This appeal follows.

D E C I S I O N

            Appellant argues that the district court abused its discretion by denying her request for a downward dispositional departure.  Appellant contends that she put forth substantial and compelling reasons that justify a downward dispositional departure and that her remorse and her lack of any substantial criminal record were mitigating factors that the district court failed to weigh heavily enough.  Appellant also contends that although the district court’s findings of fact acknowledge appellant’s sincere remorse and her successful chemical-dependency treatment, the district court “mistakenly failed to recognize those factors as substantial and compelling reasons to justify a downward dispositional departure.”  

            The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent an abuse of that discretion.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  The guidelines sentences are presumed to be appropriate for every case.  Minn. Sent. Guidelines II.D.  A district court may order a downward dispositional departure from the presumptive sentence only if “substantial and compelling circumstances” warrant such a departure.  State v. Cameron, 370 N.W.2d 486, 487 (Minn. App. 1985), review denied (Minn. Aug. 29, 1985); see also Minn. Sent. Guidelines II.D (stating that court may depart from presumptive sentence when “substantial and compelling circumstances” are present).  The mere fact that a mitigating factor is present in a particular case does “not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.”  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).  Only in a rare case would a sentencing court’s refusal to depart warrant reversal.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

            As appellant contends, the district court found that appellant was remorseful and had successfully completed chemical-dependency treatment.  At the sentencing hearing, the district court stated, “Another finding that I want to put on the record and make is that [appellant] was immediately remorseful, and I don’t think that there’s any question about either the extent or sincerity of her remorse.”  The district court also found

that [appellant] eventually went to Vinland, completed --successfully completed a two-week treatment program.  That -- and her, what’s been called an epiphany, does stand out.  And also completed eight weeks of aftercare at Vinland as well.  And that [appellant] now acknowledges her drug use and that her drug use caused the accident.   

 

            Immediately after making this finding the district court concluded,

            I am going to deny [appellant’s] motion for downward departure because I cannot find substantial and compelling circumstances for the departure.  The -- I cannot agree with counsel’s argument that but for the fact that [appellant] drove through the intersection that her driving was relatively a normal fashion.  Because of the facts that I found that [appellant] used illegal drugs and under the influence, and I don’t mean that she had to be high, but knew she was under the influence of drugs and still drove, coupled with the fact that the intersection was marked with flashing red lights facing both ways and stop signs, and . . . marked by an additional yellow warning sign, that that cannot be described as relatively normal driving.  Even taking [appellant’s] --  well, noting [appellant] also states that she was also distracted by the dog in the car and the coffee, that all of these contributed to what ended up to be something that I would not consider to be driving a car in relatively normal fashion.  I cannot distinguish this case from the repeat DWI cases, because I think that the behavior in this case actually is the same behavior that those cases are recognizing.

 

            The record demonstrates that the district court recognized that appellant’s prior record, remorse, and success in chemical-dependency treatment were mitigating factors to be considered when the district court decided whether to depart from the guidelines sentence.  See State v. Donnay, 600 N.W.2d 471, 473-74 (Minn. App. 1999) (stating that if defendant is particularly amenable to probation, district court may make dispositional departure and place defendant on probation and that defendant’s prior record, remorse, and cooperation are factors to consider when determining amenability to probation), review denied (Minn. Nov. 17, 1999).  But the fact that these mitigating factors were present did not obligate the district court to grant a dispositional departure. 

            The presumptive sentence for appellant’s offense is based on the fact that appellant does not have a felony record, and appellant does not explain why her lack of any substantial criminal record should further reduce her sentence.  Also, although appellant is remorseful, her argument in the district court and on appeal that her sentence should be reduced because she did not intend to cause any harm indicates that she has not taken responsibility for her offense.  Appellant pleaded guilty to an offense that required proof that she acted negligently, not intentionally.  Appellant’s arguments regarding intent indicate that she fails to understand that regardless of her intent, her negligent actions had severe consequences that made her negligent actions a criminal offense.  Finally, appellant argues that because her chemical-dependency problem “was a problem that was almost forced upon her by the difficult circumstances of her life,” her successful treatment effort is a substantial and compelling reason to justify a dispositional departure.  But the fact that appellant completed treatment after committing her offense did not compel the district court to grant a dispositional departure when imposing a sentence for the offense.

            It is apparent that when deciding whether to depart from the guidelines sentence, the district court carefully considered all of the relevant factors before concluding that there were not substantial and compelling circumstances warranting a departure.  Taking into consideration all of the district court’s factual findings, we conclude that the district court did not abuse its discretion and this is not the rare case that warrants a reversal of the district court’s refusal to depart.

            Affirmed.