State of Minnesota, Appellant,

This opinion will be unpublished and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
A16-1896

State of Minnesota,
Appellant,

vs.

Amanda Jean Jenniges,
Respondent.

Filed June 12, 2017
Reversed and remanded
Bratvold, Judge

Dakota County District Court
File No. 19HA-CR-16-1174

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

James C. Backstrom, Dako ta County Attorney, Elizabeth Swank, Assistant County
Attorney, Hastings, Minnesota (for appellant)

Derek W. Hansen, R yan M. Pacyga, Ryan Pacyga Criminal Defense, Minneapolis,
Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Kirk, Judge; and Toussaint,
Judge.

 Retired judge of the Minnesota Court of Appeals, 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
Bratvold, Judge
In this sentencing appeal, appellant State of Minnesota argues that the district court
abused its discretion when it granted respondent a downward durational departure based
on factors typically used to support a dispositional departure. Because the district court
improperly based the durational departure on offender -related factors, instead of the
required offense-related factors, we reverse and remand.
FACTS
On March 27, 2016, police and emergency personnel responded to a report of a one-
car accident. Upon arrival, officers saw that a van had crashed into a tree. Respondent
Amanda Jean Jenniges stood on the curb. Jenniges admitted that she drove the van and had
been drinking alcohol. She stated that she felt “fine to driv e” and “was the most sober to
drive.” As they spoke, the officer detected an “overwhelming odor of alcoholic beverage”
emanating from Jenniges and observed that her eyes were watery and bloodshot. The
officer administered standard field sobriety tests, which Jenniges failed. A preliminary
breath te st was completed and it showed that Jenniges ’s alcohol concentration “was
significantly in excess of the legal limit.” Later, her alcohol level registered at 0.189.
Jenniges’s mother and father, both passengers in the van, were injured and taken to
the hospital. Her mother had a broken pelvis, collapsed lung, fractured ribs, and traumatic
brain injury. She was in surgery for several hours and her “injuries were so significant she
could have died.” Jenniges’s father required internal and external stitches to close a
laceration to his leg.
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The state charged Jenniges with felony-level criminal vehicular operation resulting
in great bodily harm (count one) and gross-misdemeanor-level criminal vehicular operation
resulting in bodily harm (count two). Jenniges entered a “straight” guilty plea to both
counts, with the explicit understanding that there was no agreement regarding her sentence.
Jenniges reserved the right to argue for both a dispositional and dura tional departure at
sentencing.
Probation submitted a pre sentence investigation report and recommended the
guidelines sentence, i.e., that the court would stay execution of an 18 -month sentence for
count one with five years on probation, including conditions that re quired 30 days in jail.
The report recommended staying imposition of sentence on count two.
At sentencing, Jenniges moved for a downward durational departure on count one,
arguing that the victims did not believe she should face a felony sentence, she had
completed a Mothers Against Drunk Driving panel with the victims, and she had completed
48 hours of outpatient treatment.1 Jenniges also told the district court that the accident had
“turned my family’s lives upside down” and she took responsibility for what happened .
Jenniges asked the district court to impose a gross misdemeanor sentence and stay
execution of a 365 -day sentence , with conditions including 30 days of AlcoSensor

1 In her written motion, Jenniges relied on Minn. R. Civ. P. 27.03, subd. 2, which allows
a party to challenge a presentence investigation rep ort. It appears, however, that Jenniges
actually sought to have her felony conviction deemed to be a gross misdemeanor pursuant
to Minn. Stat. § 609.13, subd. 1, which authorizes a district court to impose a gross
misdemeanor sentence for a felony convicti on, and thereby “the conviction is deemed to
be” a gross misdemeanor.
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monitoring each year of probation. Jenniges did not differentiate between counts one and
two.
The state opposed the departure request, arguing that Jenniges’s crime was not less
serious than a typical criminal -vehicular-operation crime, the victims’ injuries were
significant, and mitigating circumstances were not present to support a departure. The state
requested that the court stay execution of an 18 -month sentence for count one, with five
years of probation, and conditions including 180 days in jail. The state sought two years of
probation for count two.
The district court granted Jenniges’s motion . On co unt one, the district court
imposed a gross misdemeanor sentence b y staying execution of a 365 -day sentence, with
six years of probation, and conditions including 30 days in jail or on AlcoSensor
monitoring each year of probation. On count two, the district court also sentenced Jenniges
to the same gross misdemeanor sent ence, consecutive to count one, for a total of 12 years
on pro bation. To support its decision , the district court cited Jenniges’s amenability to
probation and stated that the longer probationary term would “ensure continued sobriety.”
The state appeals.
D E C I S I O N
This court reviews a district court’s decision to depart from a presump tive
guidelines sentence for abuse of discretion. State v. Hicks , 864 N.W.2d 153, 156 (Minn.
2015). The district court’s reasons for departing from the presumptive senten ce are
reviewed de novo. Dillon v. State, 781 N.W.2d 588, 595 (Minn. App. 2010), review denied
(Minn. July 20, 2010). If the district court’s reasons for departing from a guidelines
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sentence are legally permissible and supported by the record, the departur e will be
affirmed. Hicks, 864 N.W.2d at 156. If the district court’s reasons are “improper or
inadequate” or there is insufficient evidence in the record to justify the departure, the
departure will be reversed. State v. Heath, 685 N.W.2d 48, 65 (Minn. Ap p. 2004), review
denied (Minn. Nov. 16, 2004).
“The Minnesota Sentencing Guidelines promote uniformity, proportionality, and
predictability in sentencing.” Hicks, 864 N.W.2d at 156; see also Minn. Sent. Guidelines
1.A (2014). A guidelines sentence is “presumed to be appropriate,” and the district court
should not deviate from a guidelines sentence “unless there exist identifiable, substantial,
and compelling circumstances” to support a deviat ion. Minn. Sent. Guidelines 2.D.1 ; see
also Taylor v. State, 670 N.W.2d 584, 587–88 (Minn. 2003). “Substantial and compelling
circumstances are those circumstances that make the facts of a particular case different
from a typical case.” Taylor, 670 N.W.2d at 587 (quotation omitted).
The presumptive sentence in this case for felony count one is a stayed sentence of
18 months. Minn. Sent. Guidelines 4.A, 5.A. The district court stayed execution of a 365 -
day sentence, which is a gross -misdemeanor sentence. The imposition of a gross -
misdemeanor sentence for a felony conviction is a downward durational departure. See
Minn. Stat. § 609.13; see also State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994)
(holding that imposing a gross -misdemeanor sentence for fe lony theft conviction is a
durational departure ), review denied (Minn. Oct. 27 , 1994). “The district court may
consider only offense-related factors . . . when granting a downward durational departure.”
State v. Solberg , 869 N.W.2d 66, 69 (Minn. App. 2015) , aff’d 882 N.W.2d 618 (Minn.
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2016). To support a durational departure, the district court must determine “whether the
offense was significantly less serious than the typical conduct involved in that offense.” Id.
Here, the district court stated t hat the d urational departure was supported by
Jenniges’s amenability to probation . The state argues that this factor does not support a
durational departure. We agree. Amenability to probation is an offender-related
characteristic that is unrelated to the nature of the offense. State v. Behl, 573 N.W.2d 711,
713–14 (Minn. App. 1998) (stating that amenability to probation has “no bearing” when
considering a durational departure), review denied (Minn. Mar. 19, 1998). Thus, the district
court abused its discretion in granting a durational departure on this ground.
Although the district court’s stated reason does not support a durational departure,
this court looks to the record to determine whether sufficient evidence exists to justify the
departure. Heath, 685 N.W.2d at 65. Jenniges argues that the departure is justified because
of her remorse and the victims’ wishes. We disagree.
Remorse typically supports a d ownward dispositional departure because it is an
offender-related characteristic. State v. Solberg, 882 N.W.2d 618, 625 (Minn. 2016). “[A]
durational departure may be granted only if a defendant’s remorse . . . bears on a
determination of the cruelty or seriousness of the conduct on which the conviction was
based.” Id. at 626. Thus, unless the remorse is “ directly related to the criminal conduct at
issue and made that conduct significantly less serious than the typical conduct underlying
the offense,” it does not justify a durational departure. Id.
Nothing in the record shows that Jenniges’s remorse is related to her criminal
conduct or made her conduct less serious than typically seen in these offenses. Jenniges
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chose to drive her parents home after she had been drinking, drove the van into a tree, and
injured her parents , with her mother sustaining very serious i njuries. Jenniges’s alcohol
concentration was 0.189, more than two times the legal limit. On this record, we cannot
conclude that Jenniges’s remorse has any bearing on the seriousness of the offense.
Jenniges next argues that the victims’ wishes support a durational departure. At
sentencing, Jenniges’s parents stated that they felt respo nsible for the accident and her
mother said that Jenniges “should not be facing any criminal charges.” The state responds
that these statements do not present offense -related reasons for a departure. We agree.
Initially, crime victims have “the right to submit an impact statement to the court at the
time of sente ncing.” Minn. Stat. § 611A.038 (a) (2016). A district court may consider an
impact statement to support a departure if it provides adequate reasons for a departure
which are “supported or corroborated by evidence in the record.” State v. Yanez , 469
N.W.2d 452, 455 (Minn. App. 1991), review denied (Minn. June 19, 1991).
In this case, Jenniges’s parents’ statements at the time of sentencing are not offense-
related reasons that lessen the impact of Jenniges’s offense. We understand that Jenniges’s
mother believes it was a “tragic accident” and “[w]e weren’t innocent victims.” But nothing
in the record establishes that Jenniges’s offense was atypical as compared to others of the
same nature, or that the victims’ injuries were somehow less severe than is typical. Thus,
on this record, the victim impact statements were insufficient to support a durational
departure.
We understand the district court’s motivation to give Jenniges an opportunity to
maintain her sobriety without the burden of a felony conviction. But the district court relied
8
on improper factors to support a downward durational departure, and the record does not
support substantial and compelling reasons for departure; thus, we conclude that the district
court abused its discretion. We therefore reverse Jenniges’s gross misdemeanor sentence
for count one and remand to the district court for imposition of a guidelines sentence.
Reversed and remanded.