This opinion will be unpublished and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. 

U N P U B L I S H E D O P I N I O N

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 
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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.

D E C I S I O N

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
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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.
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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-degreeassault conviction. In addition to these points, the district court assigned appellant onehalf 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). 
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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.