State of Minnesota v. Krystal Elizabeth Alwin ( 2015 )

This opinion will be unpublished and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
A15-0309
State of Minnesota,
Appellant,
vs.
Krystal Elizabeth Alwin,
Respondent.
Filed August 31, 2015
Reversed and remanded
Stauber, Judge
Ramsey County District Court
File No. 62CR142036
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for appellant)
Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant State
Public Defender, St. Paul, Minnesota (for respondent)
Considered and decided by Peterson, Presiding Judge; Stauber, Judge; and
Stoneburner, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
STAUBER, Judge
The state challenges the district court’s imposition of a gross-misdemeanor
sentence that was one day shorter than the presumptive felony sentence, arguing that this
constituted a durational departure that the district court did not justify with sufficient
offense-related findings. We agree, and we reverse and remand for resentencing.
FACTS
In November 2013, during a legal traffic stop, a state patrol officer detected a
marijuana odor emanating from respondent Krystal Elizabeth Alwin’s vehicle. When
questioned about the odor, Alwin handed the officer her purse, which contained
marijuana, hashish oil lollipops, and hashish oil candies. Alwin admitted the drugs were
hers and claimed she used them to control her pregnancy-related morning sickness.
Alwin was charged with one count of fifth-degree controlled-substance possession, a
felony.
Alwin pleaded guilty and moved for a dispositional sentencing departure,
requesting that the presumptive year-and-a-day stayed felony sentence be reduced by one
day to a 365-day stayed gross-misdemeanor sentence. Alwin stated that she displayed a
“remorseful attitude,” had completed chemical-dependency treatment, and had provided
consistently negative drug-test results. She also claimed that a felony disposition would
cause her to lose her sober housing. The state opposed Alwin’s motion, arguing that she
was actually requesting a durational departure because she requested a shorter sentence,
and that a durational departure is unwarranted because her offense is not less serious than
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the typical offense. The district court concluded that Alwin’s request constituted a
dispositional departure because the requested sentence would result in a jail rather than a
prison sentence. The district court granted the 365-day stayed sentence based on Alwin’s
completion of treatment and her sober housing. This state appeal follows.
DECISION
The Minnesota Sentencing Guidelines set forth sentence ranges “presumed to be
appropriate for the crimes to which they apply.” Minn. Sent. Guidelines 2.D.1 (2012).
The district court must impose the presumptive sentence unless there are “substantial and
compelling circumstances” to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
We review a district court’s decision to depart from the sentencing guidelines for an
abuse of discretion. State v. Robideau, 796 N.W.2d 147, 150 (Minn. 2011). But the
question of whether the district court relied on proper reasons to depart is a question of
law subject to de novo review. Dillon v. State, 781 N.W.2d 588, 595 (Minn. App. 2010),
review denied (Minn. July 20, 2010).
The state first asserts that the district court erred by characterizing the sentence
imposed as a dispositional departure rather than a durational departure. In State v.
Bauerly, this court ruled that the imposition of a 365-day gross-misdemeanor sentence on
a felony conviction that carried a presumptive year-and-a-day sentence “is a durational
departure rather than a dispositional departure.” 520 N.W.2d 760, 762 (Minn. App.
1994), review denied (Minn. Oct. 27, 1994). Likewise, because Alwin’s imposed stayed
sentence was reduced by one day from the presumptive stayed sentence, it constitutes a
durational departure.
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The district court may consider only offense-related factors—and not offender-
related factors—when granting durational departure. State v. Peter, 825 N.W.2d 126,
130 (Minn. App. 2012), review denied (Minn. Feb. 27, 2013). Essentially, for durational
departures, the court considers whether the offense was significantly less serious than the
typical conduct involved for that offense. Id.Here, the district court relied upon factors used to justify a dispositional departure,
including Alwin’s amenability to probation, the steps she had taken to correct her
behavior, and society’s best interests. See State v. Heywood, 338 N.W.2d 243, 244
(Minn. 1983) (holding that to justify a dispositional departure the district court “can focus
more on the defendant as an individual and on whether the presumptive sentence would
be best for [her] and for society”). But “[c]aselaw is settled that offender-related factors
do not support durational departures.” Peter, 825 N.W.2d at 130. Therefore, the district
court improperly relied upon offender-related factors when granting a durational
departure.
However, even if the departure reasons relied upon by the district court are
improper or inadequate, we may affirm if “there is sufficient evidence in the record to
justify departure.” Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). Alwin argues
that her cooperation with law enforcement supports the downward durational departure.
Cooperation with law enforcement generally relates to whether a defendant is amenable
to probation, a factor used to justify a dispositional departure. State v. Trog, 323 N.W.2d
28, 31 (Minn. 1982). The record before us does not demonstrate that Alwin’s surrender
of the drugs mitigates the seriousness of possessing a controlled substance. Moreover,
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we do not observe other factors that make Alwin’s offense less serious than the typical
offense.1
The state finally contends that we should not remand for resentencing, relying on
State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003). Geller states that “[a]bsent a
statement of the reasons for the sentencing departure placed on the record at the time of
sentencing, no departure will be allowed.” Id. But Geller involved an upward departure
where the record was devoid of reasoning for the departure. Here, although the district
court mischaracterized the downward durational departure as a dispositional departure,
the district court stated its reasoning at the time of sentencing. Therefore, we reverse and
remand for resentencing.
Reversed and remanded.
1
We note that the record does not reflect the weight of Alwin’s controlled substances, but
any amount of product containing marijuana or THC constitutes fifth-degree possession.
Minn. Stat. § 152.025, subd. 2(a)(1) (2012). While fifth-degree possession excludes a
“small amount of marijuana,” that definition specifically excludes the resinous form of
marijuana, also known as hashish. Minn. Stat. § 152.01, subd. 16 (2012); State v. Soutor,
316 N.W.2d 576, 576 (Minn. 1982). And Alwin possessed numerous individual hashish
oil products, therefore likely easily exceeding the felony threshold. Cf. Bauerly, 520
N.W.2d at 762 (affirming a downward durational departure in a theft case where the
dollar amount stolen “barely exceeded” the felony threshold).
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