Opinion
No. C2-01-1598.
Filed January 22, 2002.
Appeal from the District Court, Ramsey County, File No. K299400.
Mike Hatch, Attorney General, and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appealing from a sentence imposed for his conviction as a felon in possession of a firearm, appellant alleges that the district court abused its discretion in denying his motion for a downward departure. He argues that because his prior offenses were juvenile adjudications and because he only constructively possessed a firearm in a car where others were present, the offense was less serious than the typical offense. He also contends that he demonstrated particular amenability to probation. We affirm.
FACTS
During the evening of February 4, 1999, a St. Paul police officer noticed an older model tan Oldsmobile pulling out of a liquor store parking lot near the intersection of Robert and Concord Streets in St. Paul. The car drew her attention because it had a smashed rear window, and she believed it might have been stolen. When she began to follow the car, she saw its three male occupants moving about inside; the driver appeared to drop his shoulder as if he were reaching down to the floor. She stopped the car on suspicion that it was "fresh stolen." As she approached the car, she observed the driver, Demmings, again reach toward the floor. She saw open bottles of alcohol on the back seat. After receiving Demmings's permission to search the car, she saw a gun slightly protruding from under the driver's seat. It proved to be a fully-loaded Norinco semi-automatic handgun, without the safety on and ready to fire. Demmings, who had prior offenses, including an adjudication under the extended jurisdiction juvenile sentencing provisions for second degree criminal sexual conduct, was arrested and charged with the offense of felon in possession of a firearm.
After an initial mistrial, a jury found Demmings guilty, and he received a sixty-month executed sentence, the mandatory minimum pursuant to Minn Stat. § 609.11, subd. 5(b) (1998). On a previous appeal to this court, we reversed and remanded for resentencing, holding that the district court had erroneously relied on State v. Sheppard, 587 N.W.2d 53 (Minn.App. 1998), review denied (Minn. Jan. 27, 1999) in finding that it had no discretion to depart downward from Demmings's presumptive sentence.
State v. Demmings, No. C7-00-582, 2001 WL 267497 (Minn.App. Mar. 20, 2001). In Sheppard, we held that the district court lacked authority to stay the execution of a mandatory-minimum sentence when the defendant had been convicted of two prior offenses in which he used a dangerous weapon. Sheppard, 587 N.W.2d 53, 55. We previously distinguished this case from Sheppard because an accomplice, not Demmings, possessed the firearm during the commission of the previous felony. Demmings, 2001 WL 267497, at *4.
On remand, the district court again declined to depart downward durationally or dispositionally from the presumptive sentence. This appeal followed.
DECISION
The decision to depart from the sentencing guidelines rests within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). "[T]he court may sentence the defendant without regard to the mandatory minimum sentences * * * if the court finds substantial and compelling reasons to do so." Minn. Stat. § 609.11, subd. 8(a) (1998). Similarly, the Minnesota Sentencing Guidelines provide that "[t]he judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances." Minn. Sent. Guidelines II.D. Substantial or compelling circumstances are those making the facts of a particular case either more or less serious than a typical case involving the same crime. State v. Allen, 482 N.W.2d 228, 231 (Minn.App. 1992), review denied (Minn. Apr. 13, 1992).
While this case involves a mandatory sentence, not a presumptive sentence, the sentencing guidelines provide:
When an offender has been convicted of an offense with a mandatory minimum sentence of one year and one day or more, the presumptive disposition is commitment to the Commissioner of Corrections. The presumptive duration of the prison sentence should be the mandatory minimum sentence according to statute or the duration of the prison sentence provided in the appropriate cell of the Sentencing Guidelines Grid, whichever is longer.
Minn. Sent. Guidelines II.E. Therefore, the presumptive sentence in these circumstances is the mandatory sentence.
Demmings contends that his crime was significantly less serious than the typical offense involving a felon in possession of a firearm because his previous felony convictions were for juvenile offenses, and he did not personally carry a weapon during those offenses. But Minn. Stat. § 624.713, subd. 1(b) (1998) prohibits "a person who has been convicted of, or adjudicated delinquent or convicted as an extended jurisdiction juvenile for committing * * * a crime of violence" from possessing a firearm. Minn Stat. § 624.712, subd. 5 (1998) defines a "crime of violence" to include second-degree criminal sexual conduct. In Demmings's second adjudication, which resulted in an extended-jurisdiction-juvenile disposition, an accomplice used a weapon to force the victim to submit shortly before Demmings committed second-degree criminal sexual conduct. Therefore the court was not required to find that Demmings's failure to hold the pistol himself during the commission of the earlier offense made this case any more or lessserious than a typical one involving the same crime.
Demmings also argues that his possession of the gun in this case was constructive, not actual. But a case of constructive possession does not require the court to depart from the mandatory minimum sentence. See State v. Royster, 590 N.W.2d 82, 85 (Minn. 1999) (holding that mandatory minimum sentencing provisions of Minn. Stat. § 609.11 apply to cases of constructive possession where it is reasonable to assume that the weapon's presence increased the risk of violence). In this case, the police officer's testimony indicated that Demmings, the driver of the car, moved around during and after the police pursuit, dropping his shoulder down towards the seat. The loaded weapon, with no trigger lock and no safety on, was found directly beneath the driver's seat where he had been sitting. The presence of the loaded weapon significantly increased the risk of violence in these circumstances. The district court judge specifically stated at resentencing that she did not think that the gun's position under the seat made the crime "any less typical or any less serious" than another crime of this nature. Given the evidence in the record, it cannot be said that she abused her discretion.
Nor did the district court judge err in refusing to order a dispositional departure. When considering a dispositional departure, the sentencing court may focus more on the defendant as an individual and whether the presumptive sentence would be best for him or her and for society. State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). The district judge remarked at resentencing that she was impressed that Demmings had used his time wisely while incarcerated. She specifically stated, however, that this was a serious offense, and that Demmings had not provided her with substantial and compelling reasons to depart downward. The record contains no evidence to contradict this conclusion.
Because the district court acted within its discretion in refusing to order a downward durational or dispositional departure, and the record supports this decision, we affirm.