Opinion
No. A03-1670.
Filed August 3, 2004.
Appeal from the District Court, Polk County, File No. K9-03-611.
Mike Hatch, Attorney General, and Gregory A. Widseth, Polk County Attorney, (for respondent).
John M. Stuart, State Public Defender, Sean McGuire, Assistant Public Defender, (for appellant).
Considered and decided by Halbrooks, Presiding Judge, Harten, Judge, and Minge, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Lee Allen Tibbets, who pleaded guilty to one count of first-degree driving while impaired, argues that the district court abused its discretion by denying his request for a downward dispositional departure in sentencing. Because we find no abuse of discretion, we affirm.
FACTS
On the evening of April 28, 2003, a bystander called the Crookston police after witnessing a pickup truck driving on the fairway at the Minakwa Golf Club. Police arrived shortly thereafter and were informed that the vehicle had left the premises after crossing the fairway near the eighth hole. Approximately one hour later, a security officer at the University of Minnesota — Crookston (UMC) advised police that there was a pickup truck of a similar description stuck on the railroad tracks near campus. Police then proceeded to UMC, where the pickup driver's passenger informed them that the driver of the vehicle was "extremely intoxicated" and had run off. The passenger also stated that the driver of the pickup was appellant Lee Allen Tibbets. Police later apprehended appellant near the UMC football field, where he was "hiding on the ground behind some trees." After his arrest, appellant submitted a breath sample that indicated an alcohol concentration of 0.16. Appellant was subsequently charged with five driving-related offenses.
On June 30, 2003, appellant pleaded guilty to one count of first-degree driving while impaired (DWI), in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24 (2002). As part of the plea negotiation, the state dismissed the remaining counts with the understanding that appellant would pay $50 in restitution as requested under count 5.
The presentence investigation (PSI) report indicated that appellant's record included seven prior felony convictions, as well as six prior DWI convictions, and that appellant was on supervised probation at the time of his most recent offense. The PSI also revealed that appellant had a history of alcohol abuse and had been through treatment before, but did not complete aftercare. Furthermore, the PSI stated:
[Appellant] has always complied with his conditions of probation and has always met with this agent on a monthly basis. However, when looking at [appellant's] lengthy criminal history, he has exhibited a pattern of criminal behavior for most of his adult life. At this interview, [appellant] told this agent that he had started drinking again but at no time reached out to me for any help with this problem until he was arrested. This agent does not believe that [appellant] is able to control himself when he is abusing alcohol.
The agent also stated that appellant was "at a very high risk to re-offend" and "is a threat to the community." Because the agent believed "[t]his threat is enhanced when [appellant] is abusing alcohol," she advised that "[c]ommunity safety would best be met if [appellant] is committed to the commissioner of corrections" for 75 months.
At the sentencing hearing, the sole witness to testify was appellant's psychologist, David Jansen, Ph.D. Dr. Jansen stated that he had been treating appellant for approximately 20 months and that appellant is a "long-term alcoholic" who suffers from "psychiatric problems." According to Dr. Jansen, appellant's alcoholism is treatable, but appellant had "not had a good shot at alcohol treatment" in recent years. When asked whether a long-term treatment program at Fergus Falls Regional Treatment Center would be a "more appropriate disposition" than a lengthy incarceration, Dr. Jansen responded, "I think so . . . jailing doesn't do anything for [alcoholism]." Nonetheless, Dr. Jansen acknowledged that appellant would be unable to drink if incarcerated and that treatment was available in prison.
After considering Dr. Jansen's testimony and the arguments of counsel, the district court stated:
Well, you are fortunate nobody got hurt this time, Mr. Tibbets, and maybe next time you won't be so fortunate and someone else won't be either. Your previous felony record doesn't bother me. I'm not concerned about that, but I am concerned about all of the previous DWI's. And it's not just a question of whether you need treatment or you change, it's a question of threat to public safety. And the pre-sentence report indicates that you are at a high risk to offend. And I don't doubt your sincerity at all, but I'm sure you've been to treatment before, or told the Court you're going to stop drinking, but you just are not able to and that creates a tremendous risk to the public.
. . . .
. . . with all those previous DWI's, Mr. Tibbets, I am not justified, and I don't think any court would be in taking the risk that you would not drink and drive in the future. I don't really care about the drinking, it's the drinking and driving that's the problem.
The district court then denied appellant's request for long-term treatment in lieu of incarceration and sentenced appellant to the presumptive guidelines sentence of 72 months in prison. Appellant's sentence was executed, and he was ordered to pay $50 in restitution and $67.50 in costs and surcharges. This appeal follows.
DECISION I.
We first address the state's motion to strike pursuant to Minn. R. Civ. App. P. 127. The state argues that pages 1 through 5 of appellant's appendixshould be stricken as outside the record on appeal. See State v. LaRose, 673 N.W.2d 157, 168 (Minn.App. 2003) (recognizing that "[t]he production of new evidence not already in the record is never allowed in an appellate court for the purpose of reversing a judgment"), review granted (Minn. Feb. 25, 2004); see also Plowman v. Copeland, Buhl Co. Ltd., 261 N.W.2d 581, 584 (Minn. 1977) (same). Appellant, on the other hand, asserts that published sentencing statistics, such as those contained in his appendix, should be allowed because they are "matters of public record." See State v. Rewitzer, 617 N.W.2d 407, 411 (Minn. 2000) (refusing to strike documents containing Minnesota and federal sentencing statistics introduced on appeal when documents were matters of public record and court was free to refer to them in the course of its own research).
Here, the contested document is generated by the Minnesota Sentencing Guidelines Commission and contains various statistics on offenders sentenced for felony driving while impaired, current through October 2003. This document is analogous to those allowed in Rewitzer, and furthermore, appellant is correct that sentencing statistics are a matter of public record that this court could freely refer to in the course of its own research. See id.; see also In re Estate of Turner, 391 N.W.2d 767, 771 (Minn. 1986) (denying motion to strike a statistical report on state medical assistance, finding it to be a matter of public record). Because these statistics are a matter of public record and they are not offered as evidence in this case, but merely to give the court a better understanding of appellant's argument, we deny the state's motion to strike. See Northland Ins. Co. v. Continental Western Ins. Co., 550 N.W.2d 298, 303 (Minn.App. 1996).
II.
Appellant challenges the district court's refusal to grant a downward dispositional departure. The decision whether to depart from the sentencing guidelines rests within the district court's discretion, and we will not reverse absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996); State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (stating that "it would be a rare case which would warrant reversal of the refusal to depart"). "[E]ven if there are grounds that would justify departure," this court generally will not interfere with the district court's decision to impose the presumptive sentence. State v. Abeyta, 336 N.W.2d 264, 265 (Minn. 1983).
Generally, the sentencing court may depart dispositionally from the sentencing guidelines only if the defendant is particularly amenable to probation or if offense-related mitigating circumstances exist. State v. Love, 350 N.W.2d 359, 361 (Minn. 1984). Amenability depends on numerous factors, including the defendant's age, prior record, remorse, cooperation, attitude while in court, and the support of friends or family. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Appellant argues that the Trog factors weigh in favor of individualized treatment in a probationary setting, rather than incarceration. Appellant also argues that because the district court's only expressed reason for denying the departure request was a concern for public safety, "the court's failure to address the safety to be gained through treatment . . . constitutes an abuse of discretion."
Appellant bases his argument primarily on the testimony of Dr. Jansen, who stated that appellant had "not had a good shot at alcohol treatment" in recent years and that a long-term treatment program could be a "more appropriate disposition" than a lengthy incarceration because "jailing doesn't do anything for [alcoholism]." But Dr. Jansen's expert opinion was called into question during the following questioning on cross-examination:
Q. . . . Do you also understand that as part of that sentence in his previous file that he's on probation for, he was supposed to undergo a chemical dependency assessment?
A. Why hasn't he? I don't know.
Q. And he was supposed to follow any recommendations of that, correct?
A. I don't know.
Q. So he's had the availability through probation of attending treatment?
A. I don't know.
Q. Okay. Have you read the PSI in this matter?
A. No.
Q. Okay. Do you understand that they find him a very high risk to re-offend?
A. I don't know.
. . .
Q. Are you aware of any treatment options that might be available if [appellant] goes to prison?
A. They have treatment in prison.
Appellant's argument also ignores several key facts that illustrate why this is not the "rare" case where a downward dispositional departure is appropriate. See Kindem, 313 N.W.2d at 7. This is appellant's eighth felony conviction and his seventh DWI in the last 13 years. Appellant was on probation at the time of his most recent offense, and his conduct constituted a direct violation of the conditions of that probation. Additionally, the PSI states that appellant "is at a very high risk to re-offend" and "is a threat to the community." The PSI also recommends that "[c]ommunity safety would best be met if [appellant] is committed to the commissioner of corrections" for a period of 75 months.
Appellant was convicted of third-degree assault and received a downward dispositional departure. One of the conditions of his probation was that he be law-abiding and not consume alcohol.
Therefore, because the record shows that prison time is appropriate given appellant's criminal history, the strong likelihood that appellant will re-offend, and the threat appellant poses to the community, we conclude that the district court did not abuse its discretion by sentencing appellant to the presumptive guidelines sentence of 72 months in prison.