State of Minnesota v. Scott Anthony Hebert

This opinion will be unpublished and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
A15-1121

State of Minnesota,
Respondent,

vs.

Scott Anthony Hebert,
Appellant.

Filed April 25, 2016
Affirmed
Johnson, Judge

Anoka County District Court
File No. 02-CR-14-7961

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Johnson, Judge; and John P.

Smith, Judge.


Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
 UNPUBLISHED OPINION

JOHNSON, Judge

Scott Anthony Hebert pleaded guilty to violating a domestic-abuse no-contact order.

He argues that the district court erred by denying his motion for a downward dispositional

departure from the presumptive sentencing guidelines range. We affirm.

FACTS

In December 2014, an Anoka County deputy sheriff stopped a vehicle driven by

Hebert. T.M. was a passenger in the vehicle. A domestic-abuse no-contact order

prohibited Hebert from having contact with T.M. at that time. Hebert had three previous

convictions related to domestic violence: a 2009 domestic-assault conviction, a 2014 gross

misdemeanor domestic-assault conviction, and a 2014 felony domestic-assault conviction.

The state charged Hebert with one count of violating a domestic-abuse no-contact

order within ten years of the first of two or more previous qualified convictions related to

domestic violence, in violation of Minn. Stat. § 629.75, subd. 2(d)(1) (2014). In February

2015, the state and Hebert entered into a plea agreement in which Hebert agreed to plead

guilty and the state agreed that his sentence would be no longer than the shortest sentence

of the presumptive sentencing guidelines range and that any prison time could be served

concurrently with an existing sentence in an unrelated case.

At sentencing in April 2015, Hebert moved for a downward dispositional departure.

He argued that he is amenable to probation and treatment and that his conduct was less

serious than the typical case because T.M. consented to the unlawful contact. The state

opposed the motion on the grounds that Hebert had committed domestic assault on multiple

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occasions and that a concurrent executed sentence of the maximum agreed-upon duration

would extend his current imprisonment by only three months. The district court denied

Hebert’s motion for a downward dispositional departure and imposed an executed sentence

of 21 months of imprisonment, which is at the low end of the presumptive guidelines range.

See Minn. Sent. Guidelines 4.A, 5.A (2014). Hebert appeals.

DECISION

Hebert argues that the district court erred by denying his motion for a downward

dispositional departure from the presumptive sentencing guidelines range.

The Minnesota Sentencing Guidelines generally provide for a presumptive sentence

for a felony offense. Minn. Sent. Guidelines 2.C (2014). The presumptive sentence is

“presumed to be appropriate for all typical cases sharing criminal history and offense

severity characteristics.” Minn. Sent. Guidelines 1.B.13 (2014). Accordingly, a district

court “must pronounce a sentence . . . within the applicable [presumptive] range unless

there exist identifiable, substantial, and compelling circumstances to support a departure.”

Minn. Sent. Guidelines 2.D.1. If a district court departs from the presumptive guidelines

range, the district court is required to state the reason or reasons for the departure. Minn.

Sent. Guidelines 2.D.1.c. But if a district court does not depart from the presumptive

guidelines range, the district court is not required to state the reason or reasons for not

departing from the presumptive guidelines sentence. State v. Johnson, 831 N.W.2d 917,

925 (Minn. App. 2013), review denied (Minn. Sept. 17, 2013); State v. Van Ruler, 378

N.W.2d 77, 80 (Minn. App. 1985).

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 A district court may impose a downward dispositional departure from the

presumptive guidelines sentence if a defendant has a “particular amenability to

individualized treatment in a probationary setting.” State v. Trog, 323 N.W.2d 28, 31

(Minn. 1982). In considering whether a defendant is particularly amenable to probation so

as to justify a downward dispositional departure, a district court may consider, among other

factors, “the defendant’s age, his prior record, his remorse, his cooperation, his attitude

while in court, and the support of friends and/or family.” Id. If a defendant requests a

downward dispositional departure, the district court must “deliberately consider[]” the

factors that are urged by a defendant in support of the motion. State v. Mendoza, 638

N.W.2d 480, 483 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002). If a district

court denies a defendant’s motion for a downward dispositional departure, the district court

need not discuss all of the Trog factors. State v. Pegel, 795 N.W.2d 251, 254 (Minn. App.

2011). Furthermore, “the mere fact that a mitigating factor is present . . . does not obligate

the court to place [a] defendant on probation.” Id. at 253-54 (quotation omitted). This

court applies a very deferential standard of review to a district court’s denial of a

defendant’s motion for a downward dispositional departure. See State v. Bertsch, 707

N.W.2d 660, 668 (Minn. 2006). We will reverse such a decision only if the district court

abused its discretion. Pegel, 795 N.W.2d at 253.

In this case, the district court received oral arguments from both the prosecutor and

Hebert’s attorney. The district court allowed Hebert to address the court personally by way

of allocution. Hebert took advantage of the opportunity by stating that his elderly mother

needs his attention, that he intends to attain sobriety, and that he is working on obtaining a

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high-school diploma. The district court responded to Hebert by approving of the chemical-

dependency treatment he was receiving in prison. The district court stated that it was

disinclined to make a downward dispositional departure because of the relatively short

amount of time that Hebert would be on probation given the duration of the presumptive

sentence. The district court stated that the most appropriate sentence is an executed

sentence. In light of the record as a whole, the transcript of the sentencing hearing reveals

that the district court exercised its discretion and “deliberately consider[ed]” the factors

that Hebert urged in support of his motion. See Mendoza, 638 N.W.2d at 483.

Hebert contends that the district court erred because it “analyzed the request for a

departure without consideration of the Trog factors” and because “nothing in the record

indicates the court considered [Hebert’s evidence of amenability] in full while deciding the

motion for a dispositional departure.” Hebert’s contention appears to be based on the

premise that a district court must expressly consider each of the Trog factors before denying

a motion for a downward dispositional departure. But there is no such requirement. In

fact, this court has held to the contrary. As stated above, if a district court denies a

defendant’s motion for a downward dispositional departure, the district court need not

discuss all of the Trog factors. Pegel, 795 N.W.2d at 254. Furthermore, if a district court

imposes a presumptive sentence, the district court is not required to state the reason or

reasons for doing so. Johnson, 831 N.W.2d at 925; Van Ruler, 378 N.W.2d at 80. The

only requirement when a defendant moves for a downward dispositional departure is that

the district court consider the reasons urged by the defendant and exercise its discretion to

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grant or deny the motion. Van Ruler, 378 N.W.2d at 80-81. We are satisfied that the

district court did so in this case.

In sum, the district court did not err by denying Hebert’s motion for a downward

dispositional departure.

Affirmed.

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