                         This opinion will be unpublished and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                        UNPUBLISHED OPINION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


                                            4
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.




                                            5
                                              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).


                                              6
       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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