This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-1182
State of Minnesota, Respondent,
vs.
Davie Eugene McCoy, Appellant.
Filed June 6, 2016 Affirmed Johnson, Judge
Wright County District Court File No. 86-CR-14-4183
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Thomas N. Kelly, Wright County Attorney, Greg T. Kryzer, Assistant County Attorney, Buffalo, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Veronica May Surges, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; Worke, Judge; and Schellhas,
Judge. UNPUBLISHED OPINION
JOHNSON, Judge
Davie Eugene McCoy pleaded guilty to first-degree driving while impaired. Before
sentencing, McCoy moved for a downward dispositional departure. The district court
denied the motion and imposed a presumptive guidelines sentence. We affirm.
FACTS
On August 5, 2014, at approximately 3:30 a.m., a citizen reported a vehicle driving
erratically and very fast on interstate highway 94 near Albertville. A state trooper
responded to the call and followed the vehicle. The trooper observed the vehicle drive in
and out of its lane at a high rate of speed. The trooper stopped the vehicle, which was being
driven by McCoy. The trooper detected a strong odor of alcohol, observed that McCoy
had bloodshot and watery eyes, and noted that McCoy’s speech was slurred. The trooper
arrested McCoy for driving while impaired (DWI). After the trooper read McCoy the
implied-consent advisory, McCoy consented to a blood test, which indicated an alcohol
concentration of 0.12.
The state promptly charged McCoy with one count of first-degree DWI, in violation
of Minn. Stat. §§ 169A.20, subd. 1(1), .24, subd. 2 (2014). In October 2014, the state added
a second count: first-degree DWI with an alcohol concentration of 0.08 or more, in
violation of Minn. Stat. §§ 169A.20, subd. 1(5), .24, subd. 2. The state charged each count
in the first-degree because McCoy was convicted of a felony DWI offense in 2009. See
Minn. Stat. § 169A.24, subd. 1(2). In February 2015, McCoy pleaded guilty to count 2.
2 Before sentencing, McCoy moved for a downward dispositional departure. In a
memorandum supporting his motion, McCoy argued that a downward dispositional
departure is appropriate because (a) his conduct was less severe than conduct typically
involved in this type of crime, (b) his diabetes may have affected the blood-test result,
(c) he proactively entered and completed treatment before sentencing, (d) he had no
conditional-release violations before sentencing, and (e) he successfully completed
probation on his prior felony DWI. At sentencing, in response to the district court’s
allocution, McCoy made a personal statement in which he expressed remorse and thanked
the trooper who arrested him “because he saved somebody’s life.” The state opposed
McCoy’s motion and argued for an executed guidelines sentence of 42 months of
imprisonment. See Minn. Sent. Guidelines 2.C.3.d & 4.A (2014). The state argued that
McCoy is not amenable to probation because he failed to complete after-care treatment and
failed to attend his PTSD support group after completing treatment. The state also argued
that a downward dispositional departure is inappropriate because McCoy has four prior
DWIs in the past 15 years and is a substantial risk to public safety.
At the conclusion of the sentencing hearing, the district court found that “there are
no substantial and compelling reasons for departure from the sentencing guidelines, and
that Mr. McCoy is not amenable to probation.” In addition, the district court found that
McCoy is “a substantial risk to public safety.” Thus, the district court denied McCoy’s
motion and imposed a presumptive guidelines sentence of 42 months of imprisonment.
McCoy appeals.
3 DECISION
McCoy argues that the district court erred by denying his motion for a downward
dispositional departure.
The Minnesota Sentencing Guidelines provide for a presumptive sentence for a
felony offense. Minn. Sent. Guidelines 2.C (2014). The presumptive sentence is
“presumed to be appropriate for all typical cases sharing criminal history and offense
severity characteristics.” Minn. Sent. Guidelines 1.B.13 (2014). Accordingly, a district
court “must pronounce a sentence . . . within the applicable [presumptive] range unless
there exist identifiable, substantial, and compelling circumstances to support a” departure.
Minn. Sent. Guidelines 2.D.1 (2014); see also State v. Kindem, 313 N.W.2d 6, 7 (Minn.
1981). If the district court departs from the presumptive guidelines range, the district court
is required to state the reason or reasons for the departure. Minn. Sent. Guidelines 2.D.1.c.
But if the district court does not depart, the district court is not required to state reasons for
imposing a guidelines sentence. State v. Johnson, 831 N.W.2d 917, 925 (Minn. App.
2013), review denied (Minn. Sept. 17, 2013); State v. Van Ruler, 378 N.W.2d 77, 80 (Minn.
App. 1985).
A district court may grant a downward dispositional departure from the presumptive
guidelines range if a defendant has a “particular amenability to individualized treatment in
a probationary setting.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). In considering
whether a defendant is particularly amenable to probation so as to justify a downward
dispositional departure, a district court may consider, among other things, “the defendant’s
age, his prior record, his remorse, his cooperation, his attitude while in court, and the
4 support of friends and/or family.” Id. If the defendant requests a downward dispositional
departure, the district court must “deliberately consider[]” the factors that are urged by a
defendant in support of the motion. State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App.
2002), review denied (Minn. Apr. 16, 2002). “[T]he mere fact that a mitigating factor is
present . . . does not obligate the court to place [a] defendant on probation.” State v. Pegel,
795 N.W.2d 251, 253 (Minn. App. 2011) (quotation omitted). Furthermore, if there are
valid reasons for refusing to depart, a district court is not obligated to depart based on the
existence of a mitigating factor. See State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006);
Kindem, 313 N.W.2d at 7-8. This court applies a very deferential standard of review to a
district court’s denial of a defendant’s motion for a downward dispositional departure. See
Bertsch, 707 N.W.2d at 668. We will reverse such a decision only if the district court
abused its discretion. Pegel, 795 N.W.2d at 253.
In this case, McCoy argued that a downward dispositional departure is appropriate
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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 A15-1182
State of Minnesota, Respondent,
vs.
Davie Eugene McCoy, Appellant.
Filed June 6, 2016 Affirmed Johnson, Judge
Wright County District Court File No. 86-CR-14-4183
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Thomas N. Kelly, Wright County Attorney, Greg T. Kryzer, Assistant County Attorney, Buffalo, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Veronica May Surges, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; Worke, Judge; and Schellhas,
Judge. UNPUBLISHED OPINION
JOHNSON, Judge
Davie Eugene McCoy pleaded guilty to first-degree driving while impaired. Before
sentencing, McCoy moved for a downward dispositional departure. The district court
denied the motion and imposed a presumptive guidelines sentence. We affirm.
FACTS
On August 5, 2014, at approximately 3:30 a.m., a citizen reported a vehicle driving
erratically and very fast on interstate highway 94 near Albertville. A state trooper
responded to the call and followed the vehicle. The trooper observed the vehicle drive in
and out of its lane at a high rate of speed. The trooper stopped the vehicle, which was being
driven by McCoy. The trooper detected a strong odor of alcohol, observed that McCoy
had bloodshot and watery eyes, and noted that McCoy’s speech was slurred. The trooper
arrested McCoy for driving while impaired (DWI). After the trooper read McCoy the
implied-consent advisory, McCoy consented to a blood test, which indicated an alcohol
concentration of 0.12.
The state promptly charged McCoy with one count of first-degree DWI, in violation
of Minn. Stat. §§ 169A.20, subd. 1(1), .24, subd. 2 (2014). In October 2014, the state added
a second count: first-degree DWI with an alcohol concentration of 0.08 or more, in
violation of Minn. Stat. §§ 169A.20, subd. 1(5), .24, subd. 2. The state charged each count
in the first-degree because McCoy was convicted of a felony DWI offense in 2009. See
Minn. Stat. § 169A.24, subd. 1(2). In February 2015, McCoy pleaded guilty to count 2.
2 Before sentencing, McCoy moved for a downward dispositional departure. In a
memorandum supporting his motion, McCoy argued that a downward dispositional
departure is appropriate because (a) his conduct was less severe than conduct typically
involved in this type of crime, (b) his diabetes may have affected the blood-test result,
(c) he proactively entered and completed treatment before sentencing, (d) he had no
conditional-release violations before sentencing, and (e) he successfully completed
probation on his prior felony DWI. At sentencing, in response to the district court’s
allocution, McCoy made a personal statement in which he expressed remorse and thanked
the trooper who arrested him “because he saved somebody’s life.” The state opposed
McCoy’s motion and argued for an executed guidelines sentence of 42 months of
imprisonment. See Minn. Sent. Guidelines 2.C.3.d & 4.A (2014). The state argued that
McCoy is not amenable to probation because he failed to complete after-care treatment and
failed to attend his PTSD support group after completing treatment. The state also argued
that a downward dispositional departure is inappropriate because McCoy has four prior
DWIs in the past 15 years and is a substantial risk to public safety.
At the conclusion of the sentencing hearing, the district court found that “there are
no substantial and compelling reasons for departure from the sentencing guidelines, and
that Mr. McCoy is not amenable to probation.” In addition, the district court found that
McCoy is “a substantial risk to public safety.” Thus, the district court denied McCoy’s
motion and imposed a presumptive guidelines sentence of 42 months of imprisonment.
McCoy appeals.
3 DECISION
McCoy argues that the district court erred by denying his motion for a downward
dispositional departure.
The Minnesota Sentencing Guidelines provide for a presumptive sentence for a
felony offense. Minn. Sent. Guidelines 2.C (2014). The presumptive sentence is
“presumed to be appropriate for all typical cases sharing criminal history and offense
severity characteristics.” Minn. Sent. Guidelines 1.B.13 (2014). Accordingly, a district
court “must pronounce a sentence . . . within the applicable [presumptive] range unless
there exist identifiable, substantial, and compelling circumstances to support a” departure.
Minn. Sent. Guidelines 2.D.1 (2014); see also State v. Kindem, 313 N.W.2d 6, 7 (Minn.
1981). If the district court departs from the presumptive guidelines range, the district court
is required to state the reason or reasons for the departure. Minn. Sent. Guidelines 2.D.1.c.
But if the district court does not depart, the district court is not required to state reasons for
imposing a guidelines sentence. State v. Johnson, 831 N.W.2d 917, 925 (Minn. App.
2013), review denied (Minn. Sept. 17, 2013); State v. Van Ruler, 378 N.W.2d 77, 80 (Minn.
App. 1985).
A district court may grant a downward dispositional departure from the presumptive
guidelines range if a defendant has a “particular amenability to individualized treatment in
a probationary setting.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). In considering
whether a defendant is particularly amenable to probation so as to justify a downward
dispositional departure, a district court may consider, among other things, “the defendant’s
age, his prior record, his remorse, his cooperation, his attitude while in court, and the
4 support of friends and/or family.” Id. If the defendant requests a downward dispositional
departure, the district court must “deliberately consider[]” the factors that are urged by a
defendant in support of the motion. State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App.
2002), review denied (Minn. Apr. 16, 2002). “[T]he mere fact that a mitigating factor is
present . . . does not obligate the court to place [a] defendant on probation.” State v. Pegel,
795 N.W.2d 251, 253 (Minn. App. 2011) (quotation omitted). Furthermore, if there are
valid reasons for refusing to depart, a district court is not obligated to depart based on the
existence of a mitigating factor. See State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006);
Kindem, 313 N.W.2d at 7-8. This court applies a very deferential standard of review to a
district court’s denial of a defendant’s motion for a downward dispositional departure. See
Bertsch, 707 N.W.2d at 668. We will reverse such a decision only if the district court
abused its discretion. Pegel, 795 N.W.2d at 253.
In this case, McCoy argued that a downward dispositional departure is appropriate
because of his age, remorse, acceptance of responsibility, and amenability to probation.
After receiving McCoy’s memorandum, his attorney’s argument, and his personal
statement, the district court stated, “I’m specifically finding that there are no substantial
and compelling reasons for departure from the sentencing guidelines, and that Mr. McCoy
is not amenable to probation.” The record as a whole indicates that the district court
“deliberately considered” the relevant factors and exercised its discretion when it denied
McCoy’s motion. See Mendoza, 638 N.W.2d at 483. No more was required of the district
court. Johnson, 831 N.W.2d at 925; Van Ruler, 378 N.W.2d at 80.
5 Furthermore, the district court elaborated on its reasons for denying McCoy’s
motion by stating:
Well, Mr. McCoy, my decision is that I’m sending you to prison. And this is why. As [the prosecutor] said, you are a substantial risk to public safety. You and [your attorney] tell me that you have the best of intentions, but if you go out and drink and drive as you have shown is your habit, everybody in this room and everybody on the highway is at risk.
The district court’s assertion that McCoy is “a substantial risk to public safety” is supported
by the record. McCoy has four prior DWIs, including a prior felony DWI. A party’s “prior
record” is a valid consideration when determining whether a dispositional departure is
appropriate, Trog, 323 N.W.2d at 31, as is “the risk to the public safety incurred in placing
an offender on probation,” State v. Sejnoha, 512 N.W.2d 597, 600 (Minn. App. 1994),
review denied (Minn. Apr. 21. 1994). Thus, the district court’s stated reason for refusing
to depart is valid. See Bertsch, 707 N.W.2d at 668; Kindem, 313 N.W.2d at 7-8.
In sum, the district court did not err by denying McCoy’s motion for a downward
Affirmed.