This opinion will be unpublished and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UNPUBLISHED OPINION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
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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
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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.
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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.
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