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State v. Gongoll

Court of Appeals of Minnesota

May 28, 2013

State of Minnesota, Respondent,
v.
Jesse Allen Gongoll, Appellant.

UNPUBLISHED OPINION

Carver County District Court File No. 10-CR-10-433

Lori Swanson, Attorney General, St. Paul, Minnesota; and Mark Metz, Carver County Attorney, Colin Haley, Assistant County Attorney, Chaska, Minnesota (for respondent)

David W. Merchant, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

SCHELLHAS, Judge

Appellant challenges his presumptive guidelines sentence. We affirm.

FACTS

Police arrested appellant Jesse Gongoll for refusal to submit to a chemical test for intoxication on July 4, 2010, at which time Gongoll had five prior driving-while-impaired convictions. Respondent State of Minnesota charged appellant Jesse Gongoll with felony second-degree driving-while-impaired refusal to submit to a chemical test with the presence of an aggravating factor in violation of Minn. Stat. §§ 169A.20, subd. 2, .25, subd. 2 (2008). The aggravating factor consisted of Gongoll's two prior driving-while-impaired convictions within ten years prior to the offense on July 4. Gongoll was on probation for a 2007 driving-while-impaired conviction at the time of his offense on July 4. The state also charged Gongoll with driving in violation of the restrictions imposed on a restricted driver's license in violation of Minn. Stat. § 171.09, subd. 1 (d)(1) (2008). On March 25, 2011, the state charged Gongoll with driving after cancellation of his license, inimical to public safety, in violation of Minn. Stat. § 171.24, subd. 5 (2010).

Gongoll pleaded guilty to second-degree driving-while-impaired refusal to submit to a chemical test, and the state dismissed the remaining charges. The district court ordered a presentence investigation (PSI). Before sentencing, Gongoll moved for a downward dispositional departure and, alternatively, a downward durational departure. The district court heard testimony from the probation officer, who prepared the PSI; considered the parties' arguments; and sentenced Gongoll to the presumptive guidelines sentence of 48 months in prison.

This appeal follows.

DECISION

Gongoll argues that the district court abused its discretion by denying his motion for a downward dispositional departure but makes no argument regarding the court's denial of his motion for a downward durational departure.

On appeal, this court may review a sentence to "determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court." Minn. Stat. § 244.11, subd. 2(b) (2008). The district court must order the presumptive sentence provided by the sentencing guidelines "unless there exist identifiable, substantial, and compelling circumstances" that warrant a departure. Minn. Sent. Guidelines II.D (2008). Appellate courts apply the abuse-of-discretion standard to a sentencing court's decision to deny a motion for a downward dispositional sentencing departure. State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). "Departures from the presumptive sentence are justified only when substantial and compelling circumstances are present in the record." State v. Jackson, 749 N.W.2d 353, 360 (Minn. 2008). Only a rare case warrants reversal of a district court's refusal to depart. State v. ...


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