Opinion
No. C2-01-676.
Filed August 28, 2001.
Appeal from the District Court, Anoka County, File No. K3004107.
Mike Hatch, Attorney General, and
Robert M. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant Anoka County Attorney, (for appellant)
John W. Lundquist, Jay M. Quam, Fredrikson Byron, P.A., (for respondent)
Considered and decided by Edward Toussaint, Jr., Chief Judge, Gary L. Crippen, Judge and G. Barry Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Respondent, found guilty of fleeing a peace officer in a motor vehicle, a felony, moved for a downward durational departure from the sentencing guidelines. The district court granted the request for a downward departure. The state appeals, and because we conclude that the factors relied upon by the court do not justify the downward departure, we reverse and remand.
FACTS
At about 1:30 a.m. on May 15, 2000, respondent Robert Joseph Jeddeloh fled police while driving his car at speeds in excess of 115 miles per hour for 6.9 miles. Respondent, driving northbound on Highway 65 in Ham Lake, pulled over at the top of a hill; two police squad cars with their lights activated had set up spikes across the road approximately four blocks away. Respondent agreed to submit to a breath test, which showed an alcohol concentration of .21%. Respondent is a physician.
The district court found respondent guilty of fleeing a peace officer in a motor vehicle, a violation of Minn. Stat. §§ 609.487, subd. 3 (1998) and 609.101, subd. 4 (1998), and having an alcohol concentration of .20 or more within two hours of driving, a violation of Minn. Stat. §§ 609.121, subd. 1(f) (2000) and 169.101, subd. 4 (2000). Respondent moved for a downward departure from the presumptive sentence. At the sentencing hearing, respondent's attorney stated:
Now I would suggest that Dr. Jeddeloh is the type of person that it would be appropriate for a downward departure. What we suggest is appropriate is I think what the probation officer suggests in the fleeing charge, Your Honor, and that's a sentence to a gross misdemeanor rather than a felony which creates practically not much difference in what Dr. Jeddeloh actually does. But it does remove a psychological barrier and a stigma to him that has intrinsic value to him. * * * [W]e're just asking [the Court] to recognize the efforts that Dr. Jeddeloh has made and allow him to avoid the felony label that he would have to have if the Court goes with the recommended sentence.
The district court sentenced respondent to a one year stayed sentence and a $3,000 fine in connection with his conviction for fleeing a peace officer, even though the presumptive sentence for this offense under the Minnesota Sentencing Guidelines is a stayed term of one year and one day. Thus, the district court departed downward from the guidelines by one day, which resulted in respondent receiving a gross misdemeanor sentence for a felony conviction. The state appeals, arguing that the factors relied upon by the court do not justify the downward departure.
DECISION
A district court's decision to depart from the presumptive sentence specified in the sentencing guidelines is reviewed for an abuse of discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). This court will reverse a district court's findings only when they are clearly erroneous. State v. Butterfield, 555 N.W.2d 526, 530 (Minn.App. 1996), review denied, (Minn. Dec. 17, 1996). The sentencing guidelines specifically allow for district court discretion. See Minn. Sent. Guidelines II.D.2.a(5) (allowing departure when "[o]ther substantial grounds exist which tend to excuse or mitigate the offender's culpability, although not amounting to a defense."). But a sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). The aggravating or mitigating circumstances justifying departure from the presumptive sentence must be present in the record. Rairdon, 557 N.W.2d at 326. The list of potentially aggravating or mitigating factors is non-exclusive. Minn. Sent. Guidelines Comment II.D.
The district court determined that there were mitigating factors in this case to support a downward durational departure. The district court noted respondent's amenability to probation and clean criminal record as factors supporting a downward departure. The state, however, argues that these two factors should not be considered in a downward durational departure. We agree. See State v. Cizl, 304 N.W.2d 632, 634 (Minn. 1981) (holding that because the sentencing guidelines already take a defendant's prior criminal history into consideration, lack of a prior criminal record cannot be considered again); State v. Behl, 573 N.W.2d 711, 713 (Minn.App. 1998) (stating that, with respect to a durational departure, the sentencing court "must not focus on a defendant's amenability to treatment or probation, or speculate about a defendant's future conduct or background"), review denied (Minn. Mar. 19, 1998); State v. Bauerly, 520 N.W.2d 760, 762 (Minn.App. 1994) (criminal record already considered in calculation of criminal history points and cannot be considered again), review denied (Minn. Oct. 27, 1994).
The district court also determined that the non-aggravating nature of respondent's actions warranted a downward departure from the presumptive sentence. Under Minnesota law, a downward durational departure may be proper when a defendant's conduct is significantly less serious than that typically involved in the commission of the crime in question. State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984). The district court made the following statement:
I also see lots of cases that go through this court system that * * * involve people that flee police officers in motor vehicles. And I've seen cases that are maybe as egregious or possibly even less egregious that yours that end up, for example, as misdemeanor convictions, obstruction plea. And I take that into consideration today.
* * * *
I don't believe your acts are aggravating in nature. You stopped your driving voluntarily. You did not, in my estimation under the facts I heard in this trial, constitute a danger to either life or property.
The state argues, however, defendant's conduct was not significantly less serious than other similar crimes, and cites cases, both published and unpublished, to support its position. See State v. Johnson, 374 N.W.2d 285, 286 (Minn.App. 1985), review denied, (Minn. Nov. 18, 1989) (defendant farmer, after being pulled over by police, fled traveling 15 miles-per-hour and stopped after officer fired his pistol).
See also State v. Campbell, No. C4-98-1056, 1999 WL 58565 (Minn.App. Feb. 9, 1999) (police pursued defendant after he failed to stop at stop sign in Supermarket parking lot; defendant fled on foot but turned himself in next day); State v. McLoughlin, No. C7-98-418, 1998 WL 811557 (Minn.App. Nov. 24, 1998) (defendant, with .19 blood alcohol content, fled police traveling 50-55 mph until he crashed in ditch); State v. Salzl, No. C5-97-1346, 1998 WL 113979 (Minn.App. Mar. 17, 1998) (vehicle crashed into snow bank and defendant fled on foot but was later apprehended). We recognize, however, that unpublished opinions are of persuasive value "[a]t best" and not precedential. Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn.App. 1993).
Respondent counters that his conduct was significantly less serious than other similar crimes and points to the district court's findings, as articulated during the sentencing hearing, for support. The district court found that respondent stopped voluntarily, but the record reveals that respondent stopped at the top of a hill while two police squad cars with their emergency lights activated had set up spikes across the road approximately four blocks away. While we may have reached a different result with respect to this finding, we are not convinced that a mistake has been made. See Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997) (stating a finding is clearly erroneous when upon review of the entire evidence, the court is left with the definite and firm conviction that a mistake has been made). The district court also found that respondent's actions did not constitute a danger to either life or property to support its finding that respondent's actions were significantly less serious than that typically involved in the commission of the crime in question. But the record reveals that respondent eluded police for 6.9 miles at speeds exceeding 115 miles per hour with an alcohol concentration of .21. Police officers blocked traffic from entering the highway to protect motorists from harm. Thus, we conclude that the district court's finding that respondent did not "constitute a danger to either life or property" is clearly erroneous. As a result, we conclude that the district court improperly relied on the significantly less serious nature of respondent's actions as a basis for its downward departure.
Finally, the district court considered respondent's remorse as a factor supporting a downward departure from the presumptive sentence. The district court stated:
I believe you've expressed sufficient remorse to this court through your conduct as I've watched throughout the proceedings and at your trial. I think you've taken it seriously. I think you stepped up to the plate, attempted to resolve it, but you couldn't resolve it. And I take those things into account. And I do believe that you've accepted responsibility for the behavior which brings you here today.
While a defendant's remorse generally bears on his or her amenability to probation and is most relevant to dispositional departure, this court has held that a district court may consider a defendant's remorse, along with other factors, when making a downward durational departure from the guidelines. See Bauerly, 520 N.W.2d at 762-63 (district court properly considered the defendant's remorse and the less serious nature of defendant's conduct compared to other similar crimes where defendant pleaded guilty to one count of felony theft and was sentenced to one year (execution stayed) when the presumptive felony sentence was a year and a day).
But here, based on the record before us, only respondent's genuine remorse supports a downward durational departure. In light of the egregious conduct by respondent, conduct which placed at risk the lives of others, we conclude the district court abused its discretion in departing from the sentencing guidelines. We therefore remand for resentencing consistent with the presumptive guidelines sentence in force at the time of conviction.