Opinion
No. A06-1084.
Filed October 31, 2007.
Appeal from the District Court, Becker County, File No. K8-05-1313.
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General.
Joseph A. Evans, Becker County Attorney, (for respondent).
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, (for appellant).
Considered and decided by Minge, Presiding Judge; Willis, Judge; and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Appellant was convicted of first-degree driving while impaired; she challenges her sentence, arguing that the district court erred by determining that an amendment to Minn. Stat. § 169A.28 (2006), which provides that consecutive sentences are not mandatory if a defendant is being sentenced for first-degree driving while impaired, is not retroactive. Appellant argues also that the district court abused its discretion by denying her motion for a downward dispositional departure. We affirm.
FACTS
On September 3, 2005, a caller reported to the state highway patrol, that a vehicle had passed the caller on the shoulder of a road before pulling into a liquor-store parking lot. A state trooper was dispatched. While on his way to the liquor store, the state trooper spotted a vehicle matching that described by the caller traveling southbound on highway 59. The trooper saw the vehicle cross the fog line and the center line. The trooper activated his emergency lights, and the vehicle speeded up to 70 miles per hour, slowed, and then speeded up again. After chasing the vehicle for five miles, the trooper was finally able to force it to stop.
Appellant Pamela Louise Belcourt was identified as the driver of the vehicle. Because Belcourt's speech was slurred and there was a "strong odor of an alcoholic beverage coming from her person," she was arrested and transported to jail, where testing showed an alcohol concentration of 0.23. Belcourt had been convicted of driving while impaired in July 2004, September 2003, August 2000, and January 1999, and she was on probation for her July 2004 conviction.
Belcourt was charged with one count of first-degree driving while impaired, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24, subds. 1, 2 (2004); and fleeing a peace officer, in violation of Minn. Stat. § 609.487, subd. 3 (2004). Belcourt pleaded guilty to both charges and moved for a downward dispositional departure. In support, she submitted a sentencing memorandum, in which a defense dispositional advisor noted that after Belcourt's son passed away in November 1990, Belcourt suffered mental depression and "turned to alcohol." The dispositional advisor recommended that Belcourt receive "extended care treatment at a dual diagnosis program" and that the district court "place the burden onto [Belcourt] to demonstrate her success with the use of staggered sentencing."
The district court denied Belcourt's motion, finding that although Belcourt's "heart [was] always in the right place," because of Belcourt's "severe addiction problem," "the only way [she] can remain sober is through a forced period of sobriety." The district court determined also that because Belcourt was on probation for her 2004 first-degree driving-while-impaired conviction, consecutive sentences were mandatory under Minn. Stat. § 169A.28, subd. 1 (2004). The district court sentenced Belcourt to 42 months' imprisonment for her current conviction and, after revoking Belcourt's probation on the 2004 conviction, sentenced her to a consecutive term of imprisonment for the remaining balance of that sentence. Finally, the district court sentenced Belcourt to 15 months' imprisonment on the fleeing-a-peace-officer conviction, to run concurrently with the sentence for her current driving-while-impaired conviction. This appeal follows.
DECISION I.
Belcourt argues that the district court erred by determining that under Minn. Stat. § 169A.28, her sentences for her current and July 2004 convictions of first-degree driving while impaired must be consecutive. The construction of a statute is a question of law, which we review de novo. State v. Colvin, 645 N.W.2d 449, 452 (Minn. 2002).
Belcourt acknowledges that under Minn. Stat. § 169A.28(2) (2004), which was in effect when she was arrested, a defendant's sentence for driving while impaired must be consecutive to an earlier sentence for driving while impaired if the defendant, at the time of sentencing, was on probation for the earlier conviction. But Belcourt asserts that a recent amendment to section 169A.28, which eliminated the requirement of consecutive sentencing when the defendant is being sentenced for first-degree driving while impaired, is applicable to her sentence under the supreme court's decision in State v. Coolidge, 282 N.W.2d 511 (Minn. 1979).
In 2006, the legislature amended section 169A.28 to provide that "[t]he requirement for consecutive sentencing . . . does not apply if the person is being sentenced to an executed prison term for a violation of section 169A.20 (driving while impaired) under circumstances described in section 169A.24 (first-degree driving while impaired)." Minn. Stat. § 169A.28, subd. 1(b) (2006). The amendment specifies that its effective date was the day following its enactment, or June 2, 2006. 2006 Minn. Laws ch. 260, art. 2, § 4, at 734-35. And nothing in the text of the amendment expressly provides the amendment is retroactive. See Minn. Stat. § 645.21 (2006) (providing that a statute shall not be construed as retroactive without the statute evidencing that intent clearly and manifestly). Here, Belcourt was convicted of first-degree driving while impaired in January 2006 and sentenced in March 2006. The state concedes that if the amendment applies, the district court was not required to impose consecutive sentences.
Belcourt, relying on Coolidge, argues that the amendment applies to her sentence because "no final judgment" had been entered. In Coolidge, after the defendant had been sentenced but before his conviction was final, the legislature repealed the statute under which the defendant had been prosecuted and changed the maximum punishment for the crime of which the defendant was convicted from 10 years to one year. 282 N.W.2d at 514-15. The Minnesota Supreme Court determined that the defendant was entitled to the benefit of the amended maximum punishment because "a statute mitigating punishment is applied to acts committed before its effective date, as long as no final judgment has been reached," noting that "[n]othing would be accomplished by imposing a harsher punishment, in light of the legislative pronouncement, other than vengeance." Id.; see also Ani v. State, 288 N.W.2d 719, 720 (Minn. 1980) (concluding that under Coolidge, the defendant's sentence for first-degree criminal sexual conduct and aggravated sodomy must be reduced to 20 years).
We conclude that Coolidge is inapplicable. As the state points out, unlike the circumstances in Coolidge, the first-degree driving-while-impaired statute has not been repealed, and the maximum punishment for that offense has not been reduced. Further, even if the amendment were applicable here, under the sentencing guidelines, consecutive sentencing for first-degree driving-while-impaired convictions would remain permissive. See Minn. Sent. Guidelines II.F, VI. Thus, unlike the defendant's sentence in Coolidge, even if the amendment were applied retroactively, Belcourt's sentence may not be reduced at all. Finally, as amended, section 169A.28, subdivision 1(b), provides that the requirement of consecutive sentences is not applicable when "the person is being sentenced" to an executed prison term for first-degree driving while impaired. (Emphasis added.) Here, the amendment was not effective when Belcourt was "being sentenced." See Edstrom v. State, 326 N.W.2d 10, 10 (Minn. 1982) (concluding that Coolidge applies only in the absence of contrary legislative intent). We conclude that Coolidge is not applicable and that the district court did not err by determining that consecutive sentencing was mandatory here.
II.
Belcourt argues next that the district court abused its discretion by denying her motion for a downward dispositional departure. We review a district court's decision whether to depart for an abuse of discretion, although it is a "rare" case in which we will reverse a refusal to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The district court has no discretion to depart from the presumptive sentence absent the presence of aggravating or mitigating factors. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). When the district court has the discretion to depart, it must consider the relevant factors in favor of and against departure. See State v. Curtiss, 353 N.W.2d 262, 264 (Minn.App. 1984) (noting that case was not the rare case in which an appellate court reverses for abuse of discretion but rather a case in which the exercise of discretion never occurred). But if the district court imposes the presumptive sentence, that sentence is generally not reversed by appellate courts. State v. Witucki, 420 N.W.2d 217, 223 (Minn.App. 1988), review denied (Minn. Apr. 15, 1988).
As a preliminary matter, the state argues that Belcourt has waived appellate review of this issue because she did not assert in the district court that "she did not believe that the [district] court had even considered the factors that she had proffered in support of a downward dispositional departure." See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (noting that an issue not raised in the district court is waived on appeal). We disagree. Belcourt appeals the district court's denial of her motion for a downward departure. Thus, whether the district court should have departed downwardly was before the court, and Belcourt has not waived appellate consideration of her claim that the district court abused its discretion.
If a defendant is particularly amenable to probation, a downward dispositional departure is warranted. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). When determining whether to depart dispositionally, a district court may consider a defendant as an individual and evaluate the presumptive sentence on the basis of what is the best outcome for the defendant and for the community. State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). The district court may consider the defendant's age, prior record, remorse, cooperation, attitude in court, and the support of family and friends. Trog, 323 N.W.2d at 31. But the presence of a mitigating factor does not compel the district court to place the defendant on probation or shorten the presumptive sentence. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).
Belcourt argues that her remorse and willingness to seek treatment are mitigating factors that the district court "failed to weigh heavily enough," that she relapsed only after her boyfriend ended their relationship, and that staggered sentencing would "better prepare" her to deal with her mental-health issues. The record shows that the district court considered and rejected these factors, noting that because of Belcourt's addiction to alcohol, "the only way [Belcourt] can remain sober is through a forced period of sobriety." The district court also found that Belcourt was not amenable to probation, noting that to be successful on probation, a defendant must "do certain things, successfully, over a period of time" and that "[p]robation is not for everybody." Although there are mitigating factors here, their presence did not compel the district court to depart downwardly. Wall, 343 N.W.2d at 25. We conclude that the district court did not abuse its discretion by denying Belcourt's motion for a downward dispositional departure.
III.
Belcourt argues in her pro se supplemental brief that we should reverse her conviction of fleeing a peace officer because she did not intend to flee the state trooper. See Minn. Stat. § 609.487, subd. 1 (2004) (requiring that to prove that a defendant fled a peace officer, the state must establish that the defendant intended to elude the officer). Belcourt asserts that because she was focused on getting home safely, she did not realize that the officer wanted her to stop. But Belcourt pleaded guilty to fleeing a peace officer. And as the state points out, a counseled and voluntary plea of guilty is an admission of guilt that is sufficient to remove the issue of a defendant's factual guilt from consideration. See State v. Jenson, 312 N.W.2d 673, 675 (Minn. 1981). Belcourt does not allege that she received ineffective assistance of counsel, and Belcourt does not argue that her plea was involuntary. Thus, there is no basis to reverse her conviction of fleeing a peace officer.