Opinion
No. C5-98-1051.
Filed February 23, 1999.
Appeal from the District Court, Wright County, File No. K097247.
Michael A. Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, (for respondent).
Wyman A. Nelson, Wright County Attorney, (for respondent).
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant Public Defender, (for appellant).
Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat § 480A.08, subd. 3 (1998)
UNPUBLISHED OPINION
In an appeal from sentencing, Jason Van Erp challenges the district court's refusal to grant a dispositional departure to stay execution of his 32-month prison sentence. We find no abuse of discretion in the district court's sentence, and we affirm.
FACTS
Jason Van Erp was convicted, through an Alford plea, of conspiracy to commit a second degree controlled substance crime in violation of Minn. Stat. §§ 152.022, subd. 1(3) (1994), and 152.096, subd. 1 (1994). The factual basis for the plea included statements by co-defendants. Michael Burke, a co-defendant arrested for manufacturing methamphetamine, admitted that he was purifying ephedrine and pseudoephedrine into methamphetamine. He identified Van Erp as one of the persons who purchased ephedrine for him. At the plea hearing, Van Erp stated that he knew ephedrine was used in the manufacture of methamphetamine, that he purchased 4,000 tablets of ephedrine, that he was acquainted with Burke, and that he knew Burke was manufacturing methamphetamine.
The presentencing investigation (PSI) report recommended that Van Erp receive both a dispositional and a durational departure from the presumptive 58-month executed sentence. The district court departed durationally and imposed a 32-month executed sentence. Van Erp appeals, contending the district court erred by not staying execution of the sentence.
DECISION
A decision to depart from the Sentencing Guidelines rests within the district court's discretion. State v. Givens , 544 N.W.2d 774, 776 (Minn. 1996). The court's durational departure is not disputed, but Van Erp challenges the denial of his request for a dispositional departure. Only in a rare case, involving substantial and compelling circumstances, will an appellate court reverse a district court's imposition of a presumptive sentence. See State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981). The threshold issue is whether the case involves compelling circumstances justifying departure. State v. Leibfried , 309 N.W.2d 36, 36-37 (Minn. 1981).
The presumptive sentence for Van Erp's second degree controlled substance crime, computed on Van Erp's criminal history score of one, is an executed term of 58 months. Minn. Sent. Guidelines § IV. The district court sentenced Van Erp to an executed term of 32 months. The district court explained the reasons justifying the durational departure and also explained that a dispositional departure was not appropriate based on Van Erp's conduct.
The district court is not required to provide reasons when it denies a departure. State v. Van Ruler , 378 N.W.2d 77, 80 (Minn.App. 1985). Reasons that have justified a dispositional departure include particular amenability to probation and unamenability to imprisonment. State v. Trog , 323 N.W.2d 28, 31 (Minn. 1982). In considering a dispositional departure, the district court's focus is on the individual and whether the presumptive sentence would be best for him and for society. State v. Wright , 310 N.W.2d 461, 462 (Minn. 1981). Factors considered by the district court may include the defendant's age, prior record, remorse, cooperation, attitude in court, and the support of friends or family. Trog , 323 N.W.2d at 31.
The PSI report considered many of the factors relevant to a determination of Van Erp's amenability to probation. Van Erp was 25 years old at the time of the offense. He had been cited for five traffic offenses between 1989 and 1995, minor consumption in 1990, and fifth degree assault in 1990 (subsequently dismissed). In 1992, Van Erp was convicted of a fifth degree controlled substance crime, for which he received probation. Van Erp appeared at all scheduled court proceedings and remained free on his own recognizance. At the time the PSI report was compiled, Van Erp lived with his fiancée, their daughter, and his fiancée's parents, and paid $97 per week in child support for his son from a prior relationship. The PSI report concluded that Van Erp was not a threat to society.
Van Erp specifically points to his passive role in the crime and his family relationships as compelling reasons for a dispositional departure. Van Erp's less active participation in the offense was the basis for the plea to controlled substance crime in the second degree rather than in the first degree, with which he was originally charged. The less serious nature of his actions also provided the basis for the district court's durational departure. Although social factors may be considered as reasons for dispositional departure, Van Erp's close relationships with his parents, fiancée, and children were fully presented in the PSI report and considered by the judge when he weighed whether a dispositional departure was appropriate. See State v. Heywood , 338 N.W.2d 243 (Minn. 1983).
The district court stated it considered the PSI report as well as Van Erp's motion in making its sentencing decision. In addition to this material, the district court also heard Van Erp testify that (1) he knew his co-defendant, Burke, was manufacturing methamphetamine; (2) he knew ephedrine was used in the manufacture of methamphetamine; (3) he purchased a large quantity of ephedrine; and (4) he had personally used the drug with Burke on numerous occasions. At the time of the current offense, Van Erp was on probation for another drug-related conviction. Despite the favorable PSI report, we cannot conclude that the present case involves such compelling circumstances that a dispositional departure is mandated. See Jackson v. State , 329 N.W.2d 66, 67 (Minn. 1983) (defendant's drug use may be considered when determining whether dispositional departure is appropriate). The district court did not abuse its discretion in denying a dispositional departure.