STATE v. SHINGOBE

In this appeal from a 72-month presumptive sentence for first-degree driving while impaired, appellant argues that the district court abused its discretion in denying her motion for a dispositional departure. We affirm.

Appellant Valerie Jayne Shingobe is enrolled in the Mille Lacs Band of Ojibwe, a band of the Minnesota Chippewa Tribe. On January 9, 2009, appellant was arrested after she rolled the vehicle that she was driving in Aitkin County. Appellant was charged with first-degree driving while impaired (DWI) in violation of Minn. Stat. § 169A.20, subds. 1(1), 3, .24 (2008); first-degree refusal to submit to chemical testing in violation of Minn. Stat. § 169A.20, subds. 2-3, .24 (2008) and driving after cancellation inimical to public safety in violation of Minn. Stat. § 171.24, subds. 3, 5 (2008). Appellant pleaded guilty to one count of first-degree DWI, and the remaining charges were dismissed.

The district court ordered a presentence investigation (PSI), which was conducted by Senior Corrections Agent Richard McKanna. As part of the PSI, McKanna completed a risk assessment, which placed appellant within the "High Risk" of reoffending continuum. McKanna's report notes appellant's history of significant mental-health and chemical-dependency issues, participation in numerous interventions, and the relatively limited periods of stability in the community that she has maintained. McKanna further stated that he believes appellant "presents a significant risk to public safety, considering the relatively short period of time she was actually in the community since being released from MCF-Shakopee on February 5, 2007 and the amount of services which were provided in that same period of time." McKanna recommended that the presumptive sentence of 72 months be imposed.

At sentencing, appellant moved for a dispositional departure from the presumptive guidelines sentence, citing her mental illness, historical trauma, and the opportunity to participate in culturally based chemical-dependency and mental-health treatment if a probationary sentence were imposed. Appellant emphasized her childhood in foster care and her ongoing mental-health and chemical-dependency issues. The district court denied the motion and sentenced appellant to the presumptive 72-month sentence. This appeal followed.

Appellant argues that the district court abused its discretion by refusing to grant a dispositional departure from the presumptive sentence. The decision whether to depart from the sentencing guidelines rests within the district court's discretion and will not be reversed absent an abuse of that discretion. State v. Olson, 765 N.W.2d 662, 664 (Minn. App. 2009). The district court must impose the presumptive guidelines sentence unless "substantial and compelling circumstances" warrant a departure. State v. Morris, 609 N.W.2d 242, 245 (Minn. App. 2000); (quoting Minn. Sent. Guidelines II.D) (quotation marks omitted), review denied (Minn. May 23, 2000). Only in a "rare case" will a reviewing court reverse a district court's imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Even when mitigating circumstances exist that might justify a departure, a reviewing court ordinarily will not interfere with the imposition of a presumptive sentence. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983); see State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (noting that district court retained discretion to deny downward departure despite existence of mitigating factor); Kindem, 313 N.W.2d at 7-8 (affirming district court's refusal to depart downward although mitigating factor existed). As long as the record demonstrates that the district court carefully evaluated all the testimony and information presented before making its sentencing decision, this court will not interfere with the district court's exercise of discretion. State v. Van Ruler, 378 N.W.2d 77, 80-81 (Minn. App. 1985).

When considering a dispositional departure, the district court may focus "on the defendant as an individual and on whether the presumptive sentence would be best for [her] and for society." State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). The district court may impose a dispositional departure and place a defendant on probation if the defendant is particularly amenable to probation or if mitigating circumstances are present. State v. Donnay, 600 N.W.2d 471, 473-74 (Minn. App. 1999), review denied (Minn. Nov. 17, 1999). 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, 601 (Minn. App. 1994), review denied (Minn. Apr. 22, 1994).

Appellant argues that the district court abused its discretion in denying her motion for departure because Minn. Stat. § 609.1055 (2008) authorizes an alternative placement for offenders with serious and persistent mental illness. See also Minn. Sent. Guidelines II.D.2.a(6) (stating that district court may depart from presumptive sentence when alternative placement exists for "offender with serious and persistent mental illness").

That statute states:

When a court intends to commit an offender with a serious and persistent mental illness . . . to the custody of the commissioner of corrections for imprisonment at a state correctional facility . . ., the court, when consistent with public safety, may instead place the offender on probation . . . and require as a condition of the probation that the offender successfully complete an appropriate supervised alternative living program having a mental health treatment component.

Minn. Stat. § 609.1055 (emphasis added).

The district court found that appellant has a serious and persistent mental illness but noted that "[t]he question before the Court is not one of probation and treatment versus prison. The question really is whether the proposed treatment and probation can be considered `consistent with public safety.'" The district court concluded that "although [appellant] is in fact a `person with serious and persistent mental illness' for purposes of Minn. Stat. § 609.1055, public safety considerations do not allow this Court to consider the options now requested by [appellant]." The district court observed that appellant will "have [an] opportunity to undergo dual diagnosis treatment either in prison or as a condition of supervised release."

It is apparent that when deciding whether to depart from the presumptive sentence, the district court weighed appellant's interest in receiving treatment within a probationary setting against public-safety concerns. The district court acknowledged that appellant has a "serious and persistent mental illness" but also noted that appellant has nine prior DWI offenses and that she committed the current offense while she was on supervised release for a prior felony DWI conviction. The record demonstrates that the district court carefully considered the relevant factors for and against departure and that the district court's denial of appellant's motion for a downward dispositional departure was not an abuse of its discretion.

Appellant also argues that the district court abused its discretion by failing to consider as a basis for departure the fact "that she is a Native American suffering from Historic Trauma, in a system that only creates more trauma for her." Appellant contends that the fact "that Native Americans make up only 1% of Minnesota's population, yet, Minnesota leads the nation regarding the incarceration of Native Americans," "is what truly makes this case `substantial and compelling.'" But under the Minnesota Sentencing Guidelines, race and social factors should not be used as reasons for departure. Minn. Sent. Guidelines II.D.1.(a), (d) (2008); see also State v. Brusven, 327 N.W.2d 591, 594 (Minn. 1982) (stating that fact that defendant was sexually abused as a child was social factor that could not be relied on to support departure). Therefore, the district court did not abuse its discretion in denying appellant's motion to depart based on these circumstances.

In her appellate brief, appellant questioned the district court's subject-matter jurisdiction. But, at oral argument, appellant's counsel clarified that appellant is not raising a jurisdiction issue. Therefore, we will not address the district court's subject-matter jurisdiction.

Affirmed.