                          This opinion will be unpublished and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                         UNPUBLISHED OPINION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

dispositional departure.

       Affirmed.




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