Opinion
No. C3-97-213.
Filed June 17, 1997.
Appeal from the District Court, Dakota County, File No. K9-96-1614.
Hubert H. Humphrey, III, Attorney General, (for Appellant State)
James C. Backstrom, Dakota County Attorney, Charles A. Diemer, Assistant Dakota County Attorney, (for Appellant State)
John M. Stuart, State Public Defender, Bradford Colbert, Assistant State Public Defender, Tricia Whitehill, Certified Student Attorney, (for Respondent Akinosi)
Considered and decided by Short, Presiding Judge, Lansing, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
On July 15, 1996, respondent Olumuyiwa Shakirudee Akinosi drove through a stop sign and broadsided a marked Dakota County Sheriff Department vehicle, killing the deputy inside. Akinosi was charged with three counts of criminal vehicular homicide and one count of open bottle under Minn. Stat. §§ 609.21, subd. 1(1), (2), (3) and 169.122, subd. 2 (1994). He eventually pleaded guilty to one count of criminal vehicular homicide, § 609.21, subd. 1(3) (causing death of another as result of operation of motor vehicle with alcohol concentration of .10 or more). The trial court imposed the presumptive sentence of 48 months in prison.
Separate sentencing appeals were filed by appellant State of Minnesota and respondent Akinosi. This court has consolidated these appeals because this is not one of those rare cases meriting reversal of the trial court's imposition of a presumptive sentence, we affirm.
DECISION
This court must review the trial court's imposition of the presumptive sentence under an abuse of discretion standard. See State v. Givens , 544 N.W.2d 774, 776 (Minn. 1996). We may reverse a trial court's refusal to depart only in a "rare" case. See State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981). The general issue in a departure case is whether the defendant's conduct was significantly more or less serious than the typical offense. See State v. Broten , 343 N.W.2d 38, 41 (Minn. 1984).
The state sought an upward double durational departure of 96 months in prison, citing as aggravating factors (1) Akinosi's excessive alcohol concentration of .18; (2) his irresponsible conduct in repeatedly driving around in an area while intoxicated instead of returning home; (3) his prior arrest in Oklahoma, which should have served as a "wake-up" call to him; (4) and the statement by the probation officer who prepared the PSI that Akinosi "does not appear to be particularly amenable to treatment at this time * * * in that he continues to minimize his level of use and intoxication at the time of the offense." Criminal vehicular homicide cases involving upward departures generally involve a defendant who was not only excessively intoxicated, but who was also traveling at an excessive rate of speed at the time of the accident and who either fled the scene after the accident or denied involvement in the accident. See, e.g., State v. Chaklos , 528 N.W.2d 225, 228 (Minn. 1995); State v. McGee , 347 N.W.2d 802, 806 (Minn. 1984); State v. Gartland , 330 N.W.2d 881, 882-83 (Minn. 1983); State v. Williams , 414 N.W.2d 781, 782-83 (Minn.App. 1987), review denied (Minn. Jan. 15, 1988). Although Akinosi was extremely intoxicated, he was traveling under the posted speed limit and did not attempt to flee the scene or otherwise deny involvement in the accident. Moreover, these cases all involve an appellate court's affirmance of a trial court's upward departure, whether dispositional or durational; the state has cited no case in which an appellate court reversed when the trial court imposed a presumptive sentence instead of departing.
Akinosi sought a downward dispositional departure of a stay of imposition, noting that he (1) has no prior criminal convictions; (2) has expressed remorse for his actions; (3) is amenable and willing to undergo treatment; and (4) will, if placed on probation, remain a productive member of society. See State v. Trog , 323 N.W.2d 28, 31 (Minn. 1982) (dispositional departure justified when defendant particularly amenable to individualized treatment in probationary setting, considering factors such as defendant's age, prior record, remorse, cooperation, attitude while in court, and support of friends and/or family); Minn. Sent. Guidelines II.D.2.a.(5) (mitigating factors justifying departure may include "[o]ther substantial grounds * * * which tend to excuse or mitigate the offender's culpability though not amounting to a defense"). While the supreme court has reversed a trial court's imposition of a presumptive sentence and ordered a downward departure, we do not believe that this is one of those "rare" cases where we should interfere with the trial court's discretion. See State v. Hennum , 441 N.W.2d 793, 800-01 (Minn 1989).
The sentence is affirmed.