A07-295

State of Minnesota,

Appellant,

vs.

Jeffrey Thomas Clary,

Respondent.

Filed September 25, 2007

Affirmed

Hudson, Judge

Clay County District Court

File No. 14-K2-06-1455

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

Brian Melton, Clay County Attorney, Heidi Davies, Assistant County Attorney, Clay County Courthouse, 807 North 11th Street, Moorhead Minnesota 56560 (for appellant)

John M. Stuart, State Public Defender, Philip Marron, Susan J. Andrews, Assistant Public Defenders, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for respondent)

Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.

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

HUDSON, Judge

In this appeal from respondent’s sentence for first-degree controlled-substance offense, appellant argues that the district court abused its discretion when it stayed imposition of respondent’s sentence because (1) the district court improperly relied on socioeconomic factors; (2) respondent’s immaturity and addiction are not mitigating factors; and (3) respondent’s selling cocaine only to his high-school classmates does not make the offense less serious. Although respondent’s sale of cocaine to his high-school classmates was not a proper mitigating factor, the remaining departure grounds cited by the district court were proper and were supported by the record. Accordingly, the district court did not abuse its discretion, and we affirm. This court dismissed respondent’s direct appeal of his conviction after he chose not to pursue it.

FACTS

In May 2006, respondent Jeffery Clary was arrested in Moorhead after buying one ounce of cocaine in a controlled purchase from a cooperating criminal defendant (CCD). Respondent told the CCD that he would be able to “get rid” of the cocaine quickly. The CCD later testified that he had previously sold cocaine to respondent in varying quantities, about once every other week, at least 20 times. In July 2006, the state charged respondent with one count of first-degree controlled-substance crime (sale) in violation of Minn. Stat. § 152.021, subd. 1(1) (2004).

During his October 2006 jury trial, respondent testified that he snorted cocaine with his high-school friends and stated that he had never sold more than ten grams of the drug. Respondent also testified that he was addicted to cocaine. At the time of his arrest, respondent lived with his parents and drove his father’s car. Respondent’s father testified that he had not observed respondent with any possessions that had been paid for with any money other than what he gave respondent.

At the conclusion of the trial, the district court denied respondent’s motion for acquittal and the jury found respondent guilty of first-degree controlled-substance crime. Respondent then moved for both downward durational and downward dispositional departures. Respondent also entered a drug treatment program before sentencing. The presentence investigation recommended that the district court impose the presumptive sentence. Because respondent’s crime is a severity-level 9 offense and he had no criminal-history points, the presumptive guidelines sentence is 86 months, executed.

In January 2007, the district court granted a downward durational departure to 48 months and stayed its imposition. The court stated that

I think that probably the worst thing we could do and something that would not be good for him or for society is to commit him to a long term in prison, which is full of hardened criminals, and that to do that I think would likely be tantamount to sentencing him to a life of addiction and crime.

The district court also indicated that respondent enjoyed “good support in the community” from his employer, friends, and girlfriend.

Three days later, the district court amended respondent’s sentence by vacating the 48-month term and staying imposition of the sentence without pronouncing a specific duration. The district court stated that it wanted to clarify that respondent’s sentence was a stay of imposition and not a stay of execution because it did not “want there to be any possible mistake on that point.” The district court continued, “[I]f and when the defendant’s probation is revoked, it will be up to whatever judge deals with it at that time to pronounce a sentence, which could be whatever that judge thinks is an appropriate sentence at that time.” The district court then filed an amended sentencing order staying imposition of a sentence for six years. This appeal follows.

D E C I S I O N

Appellant argues that a downward departure was not warranted by the facts of this case and that respondent should be resentenced. On appeal, this court “review[s] a sentencing court’s departure from the sentencing guidelines for abuse of discretion.” State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003). The reviewing court must examine the record to determine whether it supports the district court’s stated reasons for a departure. State v. Sebasky, 547 N.W.2d 93, 100 (Minn. App. 1996), review denied (Minn. June 19, 1996). But “this court is loathe to interfere with the [district] court’s sentencing decision.” State v. Bendzula, 675 N.W.2d 920, 921 (Minn. App. 2004) (quotation omitted).

The district court must impose the presumptive sentence provided by the sentencing guidelines unless the case involves “substantial and compelling circumstances” to warrant a downward departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). “[I]n exercising the discretion to depart from a presumptive sentence, the judge must disclose in writing or on the record the particular substantial and compelling circumstances that make the departure more appropriate than the presumptive sentence.” Minn. Sent. Guidelines II.D.

The district court may impose probation “in lieu of an executed sentence when the defendant is particularly amenable to probation.” State v. Gebeck, 635 N.W.2d 385, 389 (Minn. App. 2001). When determining whether to grant a stay, a court may consider “the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family.” State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983) (quotation omitted). “A defendant’s particular amenability to probation justifies a district court’s decision to stay the execution of a presumptively executed sentence.” State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006).

The district court may focus on the defendant as an individual and determine whether the presumptive sentence would be best for the defendant and society. Heywood, 338 N.W.2d at 244. A court “ought to depart for a felon substantially different from a typical case.” Bendzula, 675 N.W.2d at 923 (quotation omitted). A departure may be based on grounds that do not amount to a defense, but “tend to excuse or mitigate the offender’s culpability.” Id. (quotation omitted); Minn. Sent. Guidelines II.D.2.a(5). Finally, when considering a sentence, the court “is required to be mindful that the capacities of state and local correctional facilities are finite.” Bendzula, 675 N.W.2d at 923 (quotation omitted).

Here, the district court concluded that “there are substantial and compelling circumstances justifying a downward dispositional departure from the guidelines sentence” and that “[i]t is more appropriate, reasonable and equitable to depart dispositionally downward in this case by staying imposition of sentence.” Specifically, the district court concluded that a stay was appropriate because (1) respondent’s crime was not a typical first-degree controlled-substance crime and the mitigating facts of the crime “are substantial enough to tend to excuse culpability”; (2) respondent was not a typical first-degree controlled-substance offender “who sells drugs as a livelihood”; (3) respondent was amenable to probation, had a full-time job, and had support from his family and employer; (4) respondent was not a threat to public safety because he only distributed drugs to “a small group of his high school classmates,” and not the “greater community”; and (5) it would be a waste of the “finite resources” of the correction facilities to sentence respondent to prison. The district court also noted that (6) respondent was addicted to cocaine; (7) he had no criminal history aside from two self-reported juvenile convictions for possession of marijuana paraphernalia; (8) a drug counselor concluded that respondent was motivated to engage in treatment and that respondent would benefit from chemical-dependency and mental-health services; and (9) respondent was 18 years old at the time of the crime.

The record supports all but one the district court’s departure grounds. Specifically, we reject the district court’s finding that respondent was not a threat to public safety because he only distributed the drugs to a “small group of his high school classmates,” and not to the “greater community.” Although the record otherwise supports the district court’s conclusion that respondent does not pose a threat to public safety, the fact that respondent only chose to sell cocaine to his peers is not a proper mitigating factor.

Based on the district court’s other proper and extensive findings, we conclude that the district court did not abuse its discretion by staying imposition of respondent’s sentence.

Affirmed.