State v. Garcia, 52061.

• Citation: 302 NW 2d 643
• Decision Date: 13 February 1981
• Docket Number: No. 52061.,52061.
• Parties: STATE of Minnesota, Respondent, v. Dale Gene GARCIA, Appellant.
• Court: Supreme Court of Minnesota (US)

302 N.W.2d 643 (1981)

STATE of Minnesota, Respondent, v. Dale Gene GARCIA, Appellant.

No. 52061.

Supreme Court of Minnesota.

February 13, 1981.

William E. Falvey, Ramsey County Public Defender, St. Paul, for appellant.

Warren Spannaus, Atty. Gen., Thomas W. Foley, County Atty. and Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.

Considered and decided by the court en banc without oral argument.

SHERAN, Chief Justice.

This is an appeal, pursuant to Minn.Stat. § 244.11 (1980), permitting appellate review of sentences in criminal cases, from a judgment of conviction of unauthorized use and kidnapping. The convictions were based on negotiated guilty pleas. The sentences which defendant is serving are concurrent prison sentences of 1 year and 1 day for the unauthorized use and 45 months for the kidnapping. The sentencing court departed from the Sentencing Guidelines in refusing to stay execution of the sentences and in setting the length of the sentence for the kidnapping. The issue on appeal is whether the court clearly abused its discretion in departing from the Guidelines. We hold that the court did not clearly abuse its discretion, and we therefore affirm.

Defendant, age 27 at the time, was arrested on May 21, 1980, shortly after he took a van belonging to another person, and he was subsequently charged with unauthorized use.

On June 17, 1980, defendant stopped a young woman leaving a discotheque in downtown St. Paul and, threatening to use a pistol, which he said he had in his pocket, forced her to accompany him in her car. Defendant then spent the next 2 hours terrorizing her and forcing her to have sexual relations (both vaginal intercourse and fellatio) with him. While the defendant was outside the car after one of the sexual acts, the victim locked the car doors and drove off.

On June 20, 1980, the woman positively identified defendant's picture as being the picture of the man who kidnapped her and raped her.

On July 2, 1980, defendant appeared in district court and entered a guilty plea to the unauthorized-use charge. The negotiated plea involved dismissing a second charge of unauthorized use and specified a limit of 1 year and 1 day. The trial court ordered a presentence investigation.

On July 9, 1980, while awaiting sentence, defendant was arrested and charged with violating drug laws.

A lineup was held on July 11 and defendant was identified by the victim of the kidnapping and rape.

On September 30, 1980, defendant appeared in district court and pled guilty to kidnapping. Minn.Stat. § 609.25, subd. 1(2), subd. 2(1) (1980). Defendant testimonially admitted committing not only the kidnapping but also the sexual acts. The plea negotiation specified that (a) the charge of criminal sexual conduct in the first degree and the drug charges would be dismissed and (b) the trial court, if it chose to depart from the presumptive sentence established by the Sentencing Guidelines, would be limited to imposing a maximum term of 50 months in prison.

Defendant appeared in district court for sentencing on October 3, 1980. The presumptive sentence for the unauthorized-use conviction, based on the severity level of the crime (level 1) and defendant's criminal history score (1, based on defendant's extensive record of misdemeanors and gross misdemeanors), was 1 year and 1 day with execution stayed. The presumptive sentence for the kidnapping, based on the severity level (6) and the criminal history score (1), was 26 months with execution stayed.

The recommendation of the person who prepared the presentence investigation report for the unauthorized-use conviction was that defendant be sentenced to 1 year and 1 day, that execution be stayed but that defendant serve the term in the workhouse because defendant was an "extremely poor candidate" for straight probation. With respect to the kidnapping conviction, the same officer recommended that the court depart from the presumptive sentence and impose and execute a limited maximum sentence of 50 months in prison (i. e., the maximum permitted pursuant to the plea negotiation), to run concurrently with the sentence for unauthorized use.

In its written departure report the sentencing court stated as follows:

This Court in imposing sentence on the defendant, Dale Gene Garcia, has departed from the presumptive sentence in that Mr. Garcia was incarcerated rather than placed on probation, and he was committed to the Commissioner of Corrections for 45 months rather than the presumptive sentence of 26 months.

The Court found that this 28-year old defendant had a chemical dependency problem which he has not been able to manage. He has no stable family life and a horrendous employment record. His criminal history indicates a conviction for the unauthorized use of a motor vehicle and the commission of these latter offenses while he was awaiting sentencing for the charge of unauthorized use of a motor vehicle. That indicates a rather brazen and blatant attitude with respect to his conduct and the rights of the citizens of this community.

The history of this crime would indicate that for an entire day the defendant participated in the excessive use of alcohol and drugs to a point where he presented a menace to the people of this community. He

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