Opinion
No. A05-905.
Filed May 30, 2006.
Appeal from the District Court, Hennepin County, File No. 03084003.
Michael Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Thomas A. Wiest, Assistant County Attorney, (for respondent).
John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, (for appellant).
Considered and decided by Randall, Presiding Judge; Shumaker, Judge; and Minge, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
On appeal from a sentence imposed for felon in possession of a firearm and possession of a firearm with a serial number removed, appellant argues (1) that the latter offense was based on the same conduct and was part of the same behavioral incident, and therefore should not have been separately sentenced, and (2) that he is particularly amenable to probation, based in part on his "exceptional support" in the community and at work, and therefore the district court abused its discretion in denying his motion for a downward dispositional departure. We affirm in part and vacate in part.
FACTS
On November 24, 2003, police executed a search warrant at a home in Minneapolis. Upon entering the premises, officers observed that appellant Devon Carson had his right hand in his pocket. Officer Beaupre ordered appellant to lie down on the ground with his hands out. When appellant hesitated, he was forced to the ground and handcuffed. After being handcuffed, appellant informed the officers that he had a gun in his pocket. Officers then recovered a Taurus 9 m.m. semi-automatic handgun from appellant's front-right pants pocket.
Because appellant had a 1998 felony conviction of theft of a motor vehicle and a 1994 conviction of third-degree assault, appellant was charged with felon in possession of a firearm under Minn. Stat. § 624.713, subd. 1(b) (2002). Appellant was also charged with possession of a firearm with a removed serial number under Minn. Stat. § 609.667(2) (2002). Following a stipulated-facts trial, the district court found appellant guilty of the charged offenses.
A sentencing hearing was held in February 2005, in which appellant sought a downward dispositional departure from the presumptive sentence. At the hearing, appellant testified that one night several weeks before his arrest, someone had shot at him "30 times" while he was at this aunt's house. Appellant claimed that he believed the shooting was in retaliation for his cooperation in a 1999 murder case. According to appellant, he found a gun a few days after the shooting in his aunt's backyard and decided to keep it for protection. Appellant also presented testimony from his employer and co-workers suggesting that he was a good candidate for probation because he was an excellent employee who had a wide network of support.
The district court found that although appellant raised some "positive points" at the sentencing hearing, appellant's argument for probation was "diminished" by testimony showing that he "used a dime bag of marijuana daily until about a month ago when he reduced his usage to a dime bag every other day." The district court denied appellant's motion for a downward departure and sentenced appellant to 60 months in prison for felon in possession of a firearm, the mandatory minimum term. The district court also imposed a concurrent year-and-a-day stayed sentence for the conviction of possession of a firearm with a removed serial number. This appeal followed.
DECISION I.
Appellant argues that his convictions of felon in possession of a firearm and possession of a firearm with a removed serial number are based entirely upon the same conduct, and, therefore, the district court's imposition of concurrent sentences for the two convictions was improper under Minn. Stat. § 609.035 (2002). The state concedes that appellant is correct, and we appreciate the state's candor on the issue. Accordingly, we vacate appellant's sentence for possession of a firearm with a removed serial number.
II.
Appellant argues that because the record demonstrates that he is amenable to probation, the district court abused its discretion in denying his motion for a downward dispositional departure. A downward departure from a presumptive sentence is reviewed for an abuse of discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). A district court may depart downward from the guidelines only if "substantial and compelling circumstances" exist. Minn. Sent. Guidelines II.D; see also State v. Best, 449 N.W.2d 426, 427 (Minn. 1989) (holding that "the [district] court has broad discretion to depart only if aggravating or mitigating circumstances are present"). The presence of a mitigating factor does not require departing from the presumptive sentence. State v. Oberg, 627 N.W.2d 721, 724 (Minn.App. 2001), review denied (Minn. Aug. 22, 2001).
It is only a "rare case" that warrants reversal of the district court's refusal to depart from the sentencing guidelines. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Appellant's claim that he is amenable to probation is a little rough around the edges. Although there is testimony in the record that appellant is an excellent employee and co-worker and that he has a wide network of support, the presence of a mitigating factor does not require departing from the presumptive sentence. Oberg, 627 N.W.2d at 724. The record reflects that appellant uses marijuana on a regular basis and that the same employer and co-workers whose testimony was offered to show appellant's amenability to probation were unaware of appellant's marijuana use. The record reflects that when appellant was on probation in the past, he was unable to follow through with chemical-dependency treatment. Appellant's testimony regarding his possession of the firearm raises credibility issues, which the district court is in the best position to evaluate. State v. Lopez 379 N.W.2d 633, 638 (Minn.App. 1986) (stating that he district court is in the better position to determine the credibility of witnesses), review denied (Minn. Feb. 14, 1986). Accordingly, the district court did not abuse its discretion in concluding that there were no substantial and compelling reasons present to justify a downward dispositional departure.