Polk County District Court File No. 60-CR-11-2622
Lori Swanson, Attorney General, St. Paul, Minnesota; and Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, Crookston, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Tania K.M. Lex, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Kirk, Judge.
In this sentencing appeal from controlled-substance convictions, appellant argues the district court abused its discretion by (1) using the Hernandez method to calculate his criminal-history score, (2) not granting a downward departure from the presumptive sentence, and (3) imposing a sentence that unfairly exaggerates the criminality of his conduct. We affirm.
On September 15, 2011, a confidential informant (CI) told East Grand Forks Police Lieutenant Rodney Hajicek that appellant Buddy King was selling methamphetamine. That same day, officers organized a controlled buy during which the CI purchased approximately one gram of methamphetamine from King. Additional controlled buys of methamphetamine were conducted through the CI on October 3 (3 grams), November 1 (1 gram), and November 12 (3.8 grams). On November 16, police officers executed a search warrant at King's residence, discovering 17 grams of methamphetamine, $762 in cash, two digital scales, and other drug paraphernalia. King told the officers that he intended to sell the methamphetamine and that he had been selling about one ounce per week for several months.
Respondent State of Minnesota charged King with one count of first-degree controlled-substance crime, one count of failure to affix a tax stamp, one count of second-degree controlled-substance crime, and three counts of third-degree controlled-substance crime. King pleaded guilty to the five controlled-substance offenses in exchange for the dismissal of the tax-stamp charge. During the plea hearing, he acknowledged that the presumptive sentence for first-degree controlled-substance crime with a criminal-history score of six is 135 to 189 months' imprisonment.
A probation officer conducted a presentence investigation, reporting that King began selling methamphetamine after he lost his job to support his family but continued selling to support his addiction. Despite identifying several mitigating factors, the officer recommended imposition of the presumptive sentence because King was likely part of a drug hierarchy, he was not entirely truthful with police during his initial interview, the sales occurred over an extended period of time, methamphetamine has a severe negative impact on the community, and he sold and used the substance while in the presence of his five-year-old daughter. King argued for a downward departure on the basis that he is a spree offender with no prior felonies and is amenable to probation.
At the sentencing hearing, the district court heard the parties' arguments for and against departure and a statement from King. The district court denied the departure motion and used the Hernandez method to increase King's criminal-history score by each count on which he was sentenced that day. King's criminal-history score was zero when he was sentenced on the first count; his criminal-history score was six when he was sentenced on the final count (first-degree controlled-substance crime). The concurrent sentences culminated in 135 months' imprisonment for the first-degree controlled-substance-crime conviction. King did not object to the Hernandez method or challenge the state's decision to charge him with five separate controlled-substance offenses. This appeal follows.
The district court has substantial discretion when imposing sentences. State v.Munger, 597 N.W.2d 570, 573 (Minn.App. 1999), review denied (Minn. Aug. 25, 1999). We will not disturb a sentence unless the district court abused its discretion and the sentence is not ...