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This opinion will be unpublished and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
A17-0264

State of Minnesota,
Respondent,

vs.

Corey Thomas Vener,
Appellant.

Filed January 8, 2018
Affirmed
Ross, Judge

McLeod County District Court
File No. 43-CR-16-270

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

Michael K. Junge, McLeod County Attorney, Daniel R. Provencher, Assistant County
Attorney, Glencoe, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal- Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Corey Vener pleaded guilty to possessing a firearm as a prohibited person and faced
a presumptive five-year prison sentence under the sentencing guidelines. Vener moved the
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district court to depart dispositionally from the presumptive sentence and order probation
instead of prison. The district court denied Vener’s motion. Vener appeals his sentence,
arguing that the district court was required to depart downward because he is particularly
amenable to probation. Because the district court acted within its discretion by imposing
the presumptive sentence rather than departing downward from it, we affirm.
FACTS
Vener was required to register as a predatory offender and is ineligible to possess
firearms because he was convicted in 2003 for falsely imprisoning a 17-year-old child. In
June 2015, child-protection workers became involved after they learned that Vener’s four-
year-old son had suffered severe burns when he fell into a fire pit and that Vener removed
the boy from the hospital without first initiating a required trauma plan. About eight months
later, the child’s personal-care attendant told a Hutchinson police investigator that she
recalled a therapy session with Vener during which he showed her photos of his firearms
on his cellular phone. The child’s foster mother told the investigator that she had a similar
experience with Vener. The investigator obtained and executed a search warrant at Vener’s
home, finding about half a dozen shotguns and rifles.
Police arrested Vener and the state charged him with possessing a firearm as a
prohibited person. While the felon-in-possession charge was pending, the state charged
Vener with, and Vener was convicted of, failing to register as a predatory offender. Vener’s
failure-to-register offense carried a presumptive prison term under the sentencing
guidelines. But the district court departed downward and ordered probation, finding Vener
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particularly amenable to probation. In the next seven months, Vener failed one drug test.
He otherwise complied with the terms of his probation.
Vener pleaded guilty to the felon-in-possession charge, a crime that carries a five-
year presumptive sentence under the guidelines. Vener asked the district court to depart
from the presumptive sentence and impose a term of probation because “no new issues,
new facts, [or] new crimes” had arisen since his failure-to-register conviction when the
district court found him particularly amenable to probation. The district court denied
Vener’s request, stating that it could not “find substantial and compelling reasons not to
impose the presumptive sentence.”
Vener appeals.
D E C I S I O N
Vener challenges his sentence. District courts enjoy “great discretion” in their
choice in how to sentence a convicted defendant. State v. Soto, 855 N.W.2d 303, 307– 08
(Minn. 2014). We will reverse the district court’s sentencing decision only if the sentence
reflects an abuse of discretion. Id. at 308. The sentencing guidelines frame the district
court’s discretion. Id. A district court may depart from a presumptive guidelines sentence
only if it finds “substantial and compelling” reasons to do so. Minn. Sent. Guidelines
II.D.2.D (Supp. 2015).
Vener argues that he presented a substantial and compelling reason for the district
court to depart downward from the presumptive prison sentence because he has shown that
he is particularly amenable to probation. A defendant who shows he is particularly
amenable to probation has presented a substantial and compelling circumstance that may
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justify a downward dispositional departure. Soto, 855 N.W.2d at 309. But we are not
convinced that Vener has the characteristics of one who is “particularly” amenable to
probation. “Particular” is not an empty modifier. To be particularly amenable to probation
means to be exceptionally, distinctively, especially, specifically amenable to probation. Id.
In determining whether a defendant is particularly amenable to probation, the district court
may consider a nonexclusive list of factors, including the defendant’s age, criminal record,
remorse, cooperation, attitude in court, and the support of family or friends. State v. Trog,
323 N.W.2d 28, 31 (Minn.1982).
Vener says that probation “is best” for him. He points out that he was 42 years old
at sentencing. Vener’s age is relevant, but he fails to say why it is entitled to much weight.
See Soto, 855 N.W.2d at 310 (“We cannot see how being ‘only’ 37 years old could make
Soto particularly amenable to probation relative to other defendants.”). He says that he
remained law abiding for 13 years, but he does not explain why being partially law-abiding
makes him especially suited for probation term. See id. at 311 (“We do not see anything in
Soto’s criminal history that would set him apart and make him particularly amenable to
probation . . . .”). He emphasizes that he “substantially complied” with his probationary
terms except for using marijuana and that he “remedied” the “question about whether [he]
was properly registering as a predatory offender” during his probation. Again Vener does
not explain how being mostly but not completely compliant with current probationar y
terms makes him uniquely amenable to another probation. And also without explaining any
significance, he points out that he met with his probation officer “several times.”
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Vener might be correct that these circumstances establish that he “is capable of
abiding by probation.” But he does not explain how they make him exceptionally or
distinctively amenable to probation. He adds three other facts. He says that he “was
cooperative in court,” even “courteous and respectful.” That a defendant cooperates
respectfully in court is somewhat relevant, but it is merely an expected circumstance that
is not, without more, a compelling circumstance. Soto, 855 N.W.2d at 312 (“But a
respectful attitude in court, in this context, is far outweighed by the other relevant
considerations.”). He says that the collateral consequence of his charge is tha t he is
prevented from regaining custody of his son. That probation rather than prison might help
a defendant’s familial relations is certainly a factor important to the defendant, but it does
nothing to establish that the defendant is distinctively amenable to probation. And he says
that his firearms possession “was not motivated by criminal endeavors” but was instead his
lifelong “hobby” and a “means of bonding with his step-father.” Of course it is better that
Vener possessed his guns as a collector rather than, say, as a robber; but we do not see how
this makes him especially suited for probation.
The supreme court has explained that a downward dispositional departure in the
form of a stayed sentence with probationary terms may be justified, for example, because
of the “defendant’s particular amenability to individualized treatment in a probationary
setting.” Trog, 323 N.W.2d at 31; see also Soto, 855 N.W.2d at 314 (“When we first
recognized that a defendant’s particular amenability to probation c ould justify staying a
presumptively executed sentence, we acknowledged the danger that such a justification
could be loosely applied.”) (quotation omitted). We see little in this record that would even
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support a finding that Vener is particularly amenable to probation, even if he m ight be
amenable to probation. We therefore have no difficulty concluding that Vener’s showing
did not compel a finding that he is particularly amenable to probation.
Vener maintains that the district court should have found that he was particularly
amenable to probation because seven months earlier it made the finding and departed
downward, ordering probation for failure to register. Vener cites no authority suggesting
that the district court must depart downward in successive criminal sentences. And
although a district court’s finding that a defendant is particularly amenable to probation
will justify downward departure, the finding does not require a departure. State v. Wall,
343 N.W.2d 22, 25 (Minn. 1984) (“[T]hat a mitigating factor was clearly present did not
obligate the court to place defendant on probation . . . .”). The court found that Vener had
a long criminal history (including his recent felony), that Vener had a history of violating
probationary terms, that Vener had a recent history of substance abuse, and that Vener
failed to show remorse or accept responsibility for illegally possessing the guns. So even
if Vener is right that the district court should have found him particularly amenable to
probation in this case, the district court still was not bound to depart from the presumptive
prison sentence and its counterbalancing findings would undermine a departure.
Vener fails to establish that he was entitled to a downward dispositional departure.
Affirmed.