State of Minnesota v. Raymond Benjamin ( 2015 )


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  •                          This opinion will be unpublished and
    may not be cited except as provided by
    Minn. Stat. § 480A.08, subd. 3 (2014).
    STATE OF MINNESOTA
    IN COURT OF APPEALS
    A14-1171
    State of Minnesota,
    Respondent,
    vs.
    Raymond Benjamin,
    Appellant.
    Filed April 6, 2015
    Affirmed
    Peterson, Judge
    Aitkin County District Court
    File No. 01-CR-13-625
    Lori Swanson, Attorney General, St. Paul, Minnesota; and
    James P. Ratz, Aitkin County Attorney, Lisa Roggenkamp Rakotz, Assistant County
    Attorney, Aitkin, Minnesota (for respondent)
    Cathryn Middlebrook, Chief Appellate Public Defender, Stephen Lemar Smith, Assistant
    Public Defender, St. Paul, Minnesota (for appellant)
    Considered and decided by Peterson, Presiding Judge; Worke, Judge; and
    Connolly, Judge.
    UNPUBLISHED OPINION
    PETERSON, Judge
    In this appeal from a conviction of and sentence for refusal to submit to chemical
    testing, appellant argues that the district court (1) abused its discretion in denying his
    motion for a dispositional and/or a durational departure when it concluded that he is not
    amendable to probation, (2) incorrectly calculated his criminal-history score, and
    (3) erred in determining that the test-refusal statute is constitutional. We affirm.
    FACTS
    When a state trooper arrived at the scene of a single-vehicle crash, he saw a van
    rolled over in the ditch and several people tending to a man lying on the ground. The
    trooper smelled the odor of an alcoholic beverage coming from the man. The man told
    the trooper that he was in the back of the van and that there were two other occupants
    who ran into the woods after the crash. The trooper administered a preliminary breath
    test, which indicated an alcohol concentration of .224. He also searched the crash scene
    and found only one set of tracks leading away from the van and no indication that anyone
    else had been in the van.
    An Aitkin County Sheriff’s Deputy who responded to the scene confirmed that the
    man lying on the ground was appellant Raymond Benjamin. The deputy smelled alcohol
    on appellant’s breath and noted that his speech was slurred and his eyes were bloodshot.
    Appellant was taken by ambulance to a hospital emergency room, where the
    deputy administered the implied-consent advisory to him.           Appellant stated that he
    understood the advisory and that he wanted to speak with his attorney. At 2:49 p.m., the
    deputy gave appellant a telephone and phone books. Appellant indicated that he wanted
    to speak to his own attorney but wanted to wait until the next morning when the attorney
    would be at his office. The deputy told appellant that he could not wait that long but
    could try to reach another attorney. Appellant indicated that he was not interested in
    2
    another attorney. At 3:01 p.m., the deputy asked appellant if he would submit to a blood
    or urine test, and appellant refused.
    Appellant has a history of alcohol-related driving offenses, including three within
    the last ten years, and other offenses dating back to the mid-1980s. Appellant was
    charged with one count each of (1) first-degree driving while impaired (DWI) – operating
    a motor vehicle under the influence of alcohol; (2) first-degree DWI – refusal to submit
    to chemical testing; (3) driving after cancellation – inimical to public safety; and
    (4) driving without proof of insurance.
    Appellant moved to dismiss the test-refusal charge, arguing that the test-refusal
    statute violates the Fourth Amendment and the unconstitutional-conditions doctrine. The
    district court denied the motion. Appellant pleaded guilty to the test-refusal charge, and
    the remaining charges were dismissed. The parties did not reach an agreement on
    sentencing, and appellant move for a dispositional or durational departure, arguing that he
    was amenable to probation and should be given an opportunity to enter a long-term
    treatment program. The district court denied appellant’s motion and sentenced him to the
    guidelines sentence of 66 months in prison with a five-year conditional-release period.
    This appeal followed.
    DECISION
    I.
    We review a district court’s refusal to depart from the sentencing guidelines for an
    abuse of discretion. State v. Bertsch, 
    707 N.W.2d 660
    , 668 (Minn. 2006). “Departures
    from the presumptive sentence are justified only when substantial and compelling
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    circumstances are present in the record.” State v. Jackson, 
    749 N.W.2d 353
    , 360 (Minn.
    2008) (emphasis in original). We do not usually interfere with a sentence falling within
    the presumptive guidelines “even if there are grounds that would justify departure.”
    Bertsch, 707 N.W.2d at 668 (quotation omitted). This court “will affirm the imposition
    of a presumptive guidelines sentence when the record shows that the sentencing court
    carefully evaluated all the testimony and information presented before making a
    determination.” State v. Johnson, 
    831 N.W.2d 917
    , 925 (Minn. App. 2013) (quotation
    omitted), review denied (Minn. Sept. 17, 2013). “[I]t would be a rare case which would
    warrant reversal of the refusal to depart.” State v. Kindem, 
    313 N.W.2d 6
    , 7 (Minn.
    1981).
    “[A] defendant’s particular amenability to individualized treatment in a
    probationary setting will justify departure in the form of a stay of execution of a
    presumptively executed sentence.” State v. Trog, 
    323 N.W.2d 28
    , 31 (Minn. 1982).
    “Numerous factors, including the defendant’s age, his prior record, his remorse, his
    cooperation, his attitude while in court, and the support of friends and/or family, are
    relevant to a determination whether a defendant is particularly suitable to individualized
    treatment in a probationary setting.” 
    Id.
     But the risk to public safety incurred in placing
    an offender on probation is significant when determining whether to depart
    dispositionally from the sentencing guidelines. State v. Sejnoha, 
    512 N.W.2d 597
    , 600
    (Minn. App. 1994), review denied (Minn. Apr. 22, 1994).
    Although offender-related factors are relevant to a dispositional departure, a
    durational departure must be supported by offense-related factors. State v. Chaklos, 528
    
    4 N.W.2d 225
    , 228 (Minn. 1995); State v. Peter, 
    825 N.W.2d 126
    , 130 (Minn. App. 2012),
    review denied (Minn. Feb. 27, 2013).
    The district court found:
    [Appellant] has violated probation numerous times in the
    past, and he was under court supervision in Crow Wing
    County when this offense occurred. This is [appellant’s] 10th
    DWI in his lifetime, and he has not shown an ability to
    remain law abiding or not be a danger to the public. Some of
    the gaps between his DWI convictions are attributable to him
    being incarcerated. [Appellant] has also completed three
    inpatient treatment programs, which have not successfully led
    to long-term sobriety.
    [Appellant] very likely has a problem with alcohol that
    can only be addressed through rehabilitative measures.
    However, the Court will not make a departure from his
    presumptive sentence absent any proof he has been amenable
    to probation in the past. From the information the Court has
    received, Adult and Teen Challenge Minnesota is a great
    program. If [appellant] is so inclined to attend the program,
    the option will be available to him after he serves his
    sentence. [Appellant] will also have rehabilitative measures
    available to him in prison.
    The record demonstrates that the district court carefully evaluated the testimony
    and information presented to it before denying appellant’s motion for a sentencing
    departure.    The court considered appellant’s history of DWI offenses, probation
    violations, treatment failures, and dangerousness to public safety, which are factors
    related to a dispositional departure, and appellant has not identified any offense-related
    factors that would support a durational departure. This is not the rare case that warrants
    reversal of the refusal to depart.
    5
    II.
    In a pro se supplemental brief, appellant argues that the district court
    (1) improperly calculated his criminal-history score as five when it should have been
    four, and (2) erred when it denied his motion to dismiss the test-refusal charge.
    Criminal-history score
    Appellant argues that he should have been assigned one point for gross
    misdemeanors, one custody-status point, and two points for a previous first-degree-
    assault conviction. In addition to these points, the district court assigned appellant one-
    half point for a felony fifth-degree controlled-substance offense and one-half point for a
    felony fleeing-a-peace-officer-in-a-motor-vehicle offense. Appellant does not explain
    why the assignment of points for those two offenses was error. An appellate court “will
    not consider pro se claims on appeal that are unsupported by either arguments or citations
    to legal authority.” State v. Bartylla, 
    755 N.W.2d 8
    , 22 (Minn. 2008). We, therefore,
    will not consider appellant’s claim that the district court incorrectly calculated his
    criminal-history score.
    Test-refusal statute
    A guilty plea by a counseled defendant generally acts as a waiver of all
    nonjurisdictional defects arising prior to entry of the plea. State v. Jeffries, 
    806 N.W.2d 56
    , 64 (Minn. 2011). “When a criminal defendant has solemnly admitted in open court
    that he is in fact guilty of the offense with which he is charged, he may not thereafter
    raise independent claims relating to the deprivation of constitutional rights that occurred
    prior to the entry of the guilty plea.” 
    Id.
     (quotation omitted).
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    To preserve a dispositive pretrial ruling for appellate review, a defendant must
    maintain a plea of not guilty, waive the right to a jury trial, and stipulate to the
    prosecution’s evidence. Minn. R. Crim. P. 26.01, subd. 4. Because appellant did not
    follow the procedure set forth in rule 26.01, subdivision 4, he waived the right to
    challenge the constitutionality of the test-refusal statute on appeal.
    Affirmed.
    7
    

Document Info

Docket Number: A14-1171

Filed Date: 4/6/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021