State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1531

State of Minnesota,
Respondent,

vs.

James Francis Muelken,
Appellant.

Filed June 19, 2017
Affirmed
Cleary, Chief Judge

Scott County District Court
File Nos. 70-CR-15-24114 and 70-CR-16-4791

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, First Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chie f Judge; Bjorkman, Judge; and Toussaint,
Judge.


 Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
On appeal from his convictions of failing to register as a predatory offender and
financial transaction card fraud, appellant Ja mes Francis Muelken argues that he is
particularly amenable to prob ation and that the district c ourt abused its discretion by
denying his motion for a downward dispositional departure. We affirm.
FACTS
In April 2016, Muelken pleaded guilty to one count of failing to register as a
predatory offender and one count of financial transaction card fraud without any agreement
with the state regarding sentencing. After th e plea hearing, a presentencing investigation
(PSI) report was prepared, which recommended that the district court sentence Muelken to
39 months for the failure-to-regi ster offense and 24 months for the financial-transaction-
card-fraud offense.
Muelken moved for a dispositional or durational departure. The district court denied
Muelken’s motion for a dispositional departure, noting that the PSI characterized Muelken
as a high-risk individual and citing Muelken’s substantial crim inal history. The district
court also denied Muelken’s motion for a durational departure. Adopting the
recommendation of the PSI, the district court imposed a sentence of 39 months for the
failure-to-register offense and a concurrent sentence of 24 months for the financial-
transaction-card-fraud offense, sentences within the presumptive range for individuals with
Muelken’s criminal history. This appeal followed.
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D E C I S I O N
Muelken argues that the district court abused its discretion by denying his motion
for a downward dispositional departure. Muelke n argues that he is particularly amenable
to probation because he accepted responsibility for the offenses, is remorseful, has family
support, is committed to changing his life, and is amenable to chemical dependency
treatment.
“The Minnesota Sentencing Guidelines es tablish presumptive sentences for felony
offenses.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016). The district court must
impose a presumptive sentence under the guide lines “unless substantial and compelling
circumstances warrant a departure.” State v. Pegel , 795 N.W.2d 251, 253 (Minn. App.
2011) (quotation omitted); see also Minn. Sent. Guidelines 2.D.1 (Supp. 2015). We review
the district court’s decision whether to depart from the sentencing guidelines for an abuse
of discretion. Pegel, 795 N.W.2d at 253. “We will affirm the imposition of a presumptive
guidelines sentence when the record shows [that] the sentencing court carefully evaluated
all the testimony and information presen ted before making a determination.” State v.
Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013 ) (alteration in original) (quotation
omitted), review denied (Minn. Sept. 17, 2013).
Substantial and compelling circumstances are those that make a case atypical.
Taylor v. State , 670 N.W.2d 584, 587 (Minn. 2003). In determining whether to depart
dispositionally, the district c ourt should focus “on the defe ndant as an individual and on
whether the presumptive sentence would be best for him and for society.” State v.
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Heywood, 338 N.W.2d 243, 244 (Minn. 1983). A defendant’s “particular amenability to
probation” may support a downwa rd dispositional departure. State v. Soto , 855 N.W.2d
303, 314 (Minn. 2014) (emphasis added). In State v. Trog, the Minnesota Supreme Court
established a number of factors for a district court to consider in deciding whether an
individual is particularly amenable to proba tion, including the defendant’s age, criminal
history, remorse, cooperation, attitude while in court, and support of family or friends. 323
N.W.2d 28, 31 (Minn. 1982).
If the district court departs from the senten cing guidelines, it is required to state the
reason or reasons for departure. Minn. Sent. Guidelines 2.D.1.c. But, if a district court
does not depart, the district court is not required to state its reasons for imposing a
presumptive sentence. Johnson, 831 N.W.2d at 925.
In this case, the district court stated on the record that it had reviewed the
memoranda submitted in connection with Muelken’s motion for a downward dispositional
departure, two letters submitte d by Muelken in connection wi th the motion, and the PSI.
The district court acknowledg ed that Muelken had been accepted into a chemical
dependency treatment program, but noted that the PSI characterized Muelken as a high-
risk individual and that Muelken had a lengthy cr iminal history. The district court stated
that it could not find a reason to depart disp ositionally in this case and denied Muelken’s
motion.
Muelken argues that the district court ab used its discretion be cause he presented
substantial and compelling reasons suppor ting a downward dispositional departure,
5
including evidence regarding his acceptance of responsibility, remorse, cooperation,
attitude while in court, family support, and amenability to chemical dependency treatment.
But, the fact that mitigating factors are present does not obligate the district court to grant
a defendant’s motion for a dispositional departure. State v. Wall, 343 N.W.2d 22, 25 (Minn.
1984). The record reflects that the district court acknowledged that Muelken had taken
responsibility for his actions, stated that he appeared to be sincere and honest in expressing
his commitment to change his lif e, and noted that he had been admitted to treatment.
However, the district court weighed these fa ctors against Muelken’s extensive criminal
history, which it characterized as “awful,” and the PSI’s characterization of him as a high-
risk individual, and declined to depart from the guidelines sentence.
Because the district court deliberately c onsidered the circumstances for and against
departure, we conclude that the district court did not abuse its discretion by denying
Muelken’s motion for a downward dispositional departure.
Affirmed.