State of Minnesota v. Lasheka Bolden

This opinion will be unpublished and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
A14-1726
State of Minnesota,
Respondent,
vs.
Lasheka Bolden,
Appellant.
Filed August 24, 2015
Affirmed
Hudson, Judge
Hennepin County District Court
File No. 27-CR-14-11912
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Chelsie Willett, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hudson, Presiding Judge; Cleary, Chief Judge; and
Schellhas, Judge.
UNPUBLISHED OPINION
HUDSON, Judge
In this appeal, appellant challenges the 48-month sentence imposed on her
conviction of felony chemical test refusal. She argues that, although the district court
ordered a downward durational departure, it abused its discretion by declining to order a
downward dispositional departure as well. She advances additional arguments in a pro se
supplemental brief. We affirm.
FACTS
Brooklyn Park police stopped appellant Lasheka Bolden’s vehicle around
midnight on April 27, 2014, after they observed the vehicle stop at a green light and rear-
window tint on the vehicle that was too dark. When conducting the stop, they noticed
that Bolden had a strong odor of an alcoholic beverage and that her movements were
slow, her speech slurred, and her eyes bloodshot and watery. Bolden failed field sobriety
tests, and a preliminary breath test showed an alcohol concentration of .185. She was
arrested, read the implied-consent advisory, and offered a breath test; she ultimately
stated that she would not take the test.
The state charged Bolden with first-degree chemical test refusal, a felony-level
offense based on her record of three qualified prior impaired-driving incidents within ten
years. She pleaded guilty to the charge without an agreement. At sentencing, defense
counsel argued on the record for both a durational and a dispositional departure.
The district court sentenced Bolden to 48 months executed, a downward durational
departure from the 66-month presumptive sentence, noting as a reason her acceptance of
responsibility. The district court, however, declined to order a downward dispositional
departure. The district court observed that driving while impaired is an extremely serious
crime, which leads to numerous traffic fatalities; that Bolden has a history of alcohol-
related offenses dating back 12 years; and that, although she had modified her behavior to
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only weekend drinking, she failed to acknowledge the serious nature of her problem with
alcohol. The district court further stated that it had “to weigh the possible punitive
consequence here with the safety of the public” and that it “[saw] the safety of the public
winning out here.” This sentencing appeal follows.
DECISION
This court reviews a district court’s sentencing decision for an abuse of discretion.
State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). The Minnesota Sentencing
Guidelines require that “[a] sentencing court ‘must pronounce a sentence within the
applicable [guidelines] range unless there exist identifiable, substantial, and compelling
circumstances’ that distinguish a case and overcome the presumption in favor of the
guidelines sentence.” State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014) (quoting Minn.
Sent. Guidelines 2.D.1). Only a “rare” case merits reversal of a district court’s
imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
We will affirm the imposition of the presumptive 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), review denied (Minn. Sept. 17, 2013) (quotation omitted). When
compelling circumstances supporting a departure exist, the district court must
deliberately consider those circumstances before imposing the presumptive sentence.
State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984). But the Minnesota Supreme
Court has recently emphasized that “merely being amenable to probation” is not
sufficient to stay a presumptively executed sentence. Soto, 855 N.W.2d at 308. A
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defendant must be particularly amenable to probation, as distinguished from others, to
present the substantial and compelling circumstances required for a dispositional
departure. Id.; see also State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (stating that the
presence of mitigating factors does “not obligate the court to place [a] defendant on
probation”). Therefore, in order to demonstrate substantial and compelling circumstances
warranting a downward dispositional departure, Bolden was required to show that she
was particularly amenable to probation. Soto, 855 N.W.2d at 308.
In determining whether a defendant is amenable to probation and appropriate for a
dispositional departure, a district court may consider a number of factors, including the
defendant’s age, prior record, showing of remorse, attitude in court, and support of family
and friends. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Bolden argues that the
district court abused its discretion by imposing the presumptive executed sentence, rather
than placing her on probation, because she demonstrated the existence of several Trog
factors. She argues that her criminal-history score of five exaggerated her criminality
because her three felony points derived from two low-level drug convictions that
occurred more than ten years before the current offense. She maintains that she
cooperated with the district court and probation and that she showed remorse by not
minimizing her drinking and submitting a letter to the district court acknowledging the
consequences of her actions. And she argues that she has some close associations in the
community, that she has a generally good record in complying with previous conditions
of probation, and that she would benefit from the rehabilitation available to her on
probation.
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Bolden argues that in declining to grant a dispositional departure, the district court
did not consider any of the Trog factors, but only the seriousness of driving-while-
impaired offenses in general as a cause of traffic-related deaths. Thus, she argues that the
district court improperly focused only on her crime and not on her as an individual,
except with respect to her alcoholism. See State v. Heywood, 338 N.W.2d 243, 244
(Minn. 1983) (stating that a decision on a dispositional departure allows the court to
“focus more on the defendant as an individual and on whether the presumptive sentence
would be best for [her] and for society”). But the district court is not required to address
all of the Trog factors when it imposes the presumptive sentence. See State v. Pegel, 795
N.W.2d 251, 254 (Minn. App. 2011) (rejecting appellant’s argument that the district
court failed to discuss all of the Trog factors and observing that “there is no requirement
that the district court must do so”).
The supreme court has recently reiterated that public safety may be a factor in
determining whether to grant a dispositional departure. Soto, 855 N.W.2d at 313; see
also State v. Sejnoha, 512 N.W.2d 597, 600 (Minn. App. 1994) (holding that in
addressing a request for a dispositional departure, the district court may consider the risk
to public safety incurred as a result of placing a defendant on probation); review denied
(Minn. Apr. 21, 1994). Here, the district court expressly noted Bolden’s 12-year history
of alcohol-related offenses and stated that public safety weighed in favor of imposing the
presumptive executed sentence. The district court did not err by considering the risk to
public safety in its sentencing decision.
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In ordering a downward durational departure, the district court indicated that it
would consider Bolden’s criminal-history score to be three, rather than five, based on a
discrepancy in handling her previous felony drug convictions from another state. The
district court’s consideration of this factor in its decision on a downward durational
departure did not, however, require the district court to depart dispositionally as well.
The district court also observed that it had reviewed the presentence investigation report,
as well as Bolden’s letter to the court. And the district court noted that, until recently,
Bolden did not acknowledge that she has a problem with alcohol. The record therefore
demonstrates that the district court adequately considered and evaluated Bolden’s reasons
for a dispositional departure. See, e.g., State v. Van Ruler, 378 N.W.2d 77, 81 (Minn.
App. 1985) (affirming the district court’s decision not to order a downward dispositional
departure when it sufficiently evaluated all information presented on that issue). We
conclude that, based on the record, the district court did not abuse its discretion by
declining to order a dispositional departure.
Bolden also makes several additional arguments in a pro se supplemental brief.
She maintains that police lacked reasonable suspicion to stop her vehicle, arguing that a
discrepancy existed between the police report and the reason she was given for the stop.
But she did not challenge the grounds for the stop in the district court before her guilty
plea and has therefore forfeited that issue. See State v. Ford, 397 N.W.2d 875, 878
(Minn. 1986) (stating that a counseled guilty plea extinguishes all pre-plea non-
jurisdictional defects). She also argues that she was deprived of her Fifth Amendment
right to a fair trial. But she knowingly and voluntarily waived her trial rights when she
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pleaded guilty. See Minn. R. Crim. P. 15.01, subd. 1 (listing the required waivers for a
guilty plea). She finally argues that the district court imposed an excessive bail condition
of $50,000. But absent extraordinary circumstances, questions relating to the amount of
bail are moot after conviction. State v. Huber, 275 Minn. 475, 478, 148 N.W.2d 137, 140
(1967). We therefore conclude that these arguments do not warrant relief.
Affirmed.
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