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This opinion will be unpublished and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
A17-0409

State of Minnesota,
Respondent,

vs.

Michael Emmanuel Ballard,
Appellant.

Filed December 18, 2017
Affirmed
Florey, Judge

Olmsted County District Court
File No. 55-CR-16-1981

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

Mark A. Ostrem, Olmsted County Attorney , Jennifer D. Plante, Associate County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Jesson, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In this appeal from a 66-month presump tive sentence for first-degree refusal to
submit to a chemical test, in violation of Mi nn. Stat. §§ 169A.20, subd. 2, .24, subd. 2
2
(2014), appellant argues that the district court abused its discretion in denying his motion
for a dispositional departure. We affirm.
FACTS
On March 19, 2016, appellant Michael Emmanuel Ballard was arrested on suspicion
of driving while intoxicated (DWI). An o fficer read appellant the implied-consent
advisory, but appellant refused to submit to a test. Appellant was charged with first-degree
DWI, first-degree test refusal, giving a fals e name to a peace officer, and driving after
cancellation.
Appellant pleaded guilty to first-degree te st refusal in exch ange for the state
dismissing the remaining charges. The parties did not reach an agreement concerning the
sentence. The district court ordered a presentence investigation, which was completed by
a probation officer. After examining appellant ’s controlled-substance history, treatment
history, and criminal history, the proba tion officer recommended that the presumptive
sentence of 66 months be imposed.
At sentencing, appellant moved for a dispositional departure from the presumptive
guidelines sentence, arguing that he was partic ularly amenable to probation and that he
should be provided with the op portunity to participate in chemical-dependency treatment
in a probationary setting. In support of hi s request for a probationary sentence, appellant
cited his acceptance into an inpatient tr eatment program that would allow him the
opportunity to complete chemical-dependency treatment. The district court denied the
motion and sentenced appellant to the presumptive 66-month sentence.
This appeal followed.
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D E C I S I O N
Appellant argues that the district court ab used its discretion by refusing to grant a
dispositional departure from the presumptive sent ence. He argues that the district court
should have found that he was “particularly amenable to probation and treatment in a
probationary setting.”
We review a district court’s decision to grant or deny a departure from the
presumptive sentence for an abuse of discretion. State v. Soto, 855 N.W.2d 303, 308 (Minn.
2014). We will reverse a distri ct court’s refusal to depart from the presumptive sentence
only in a “rare case.” State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
The Minnesota Sentencing Guidelines “prescrib[e] a sentence or range of sentences
that is presumed to be appropriate.” Soto, 855 N.W.2d at 308 ( quotation omitted). The
guidelines are intended to “maintain uniformity, prop ortionality, rationality, and
predictability in sentencing.” Minn. Stat. § 244.09, subd. 5 (2014). Therefore, departures
are discouraged unless “there are ‘identifiable, substantial, and compelling circumstances
to support a departure.’” State v. Solberg , 882 N.W.2d 618, 623 (Minn. 2016) (quoting
Minn. Sent. Guidelines 2.D.1 (Supp. 2015)). “Substantial and compelling circumstances
are those circumstances that make the facts of a particular case different from a typical
case.” State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985).
A district court may grant a downward-dispositional departure from the sentencing
guidelines if the defendant is “partic ularly amenable to probation.” Soto, 855 N.W.2d at
309; see Minn. Sent. Guidelines 2.D.3.a.(7) (Supp. 2015) (including “particularly
amenable to probation” as a m itigating factor). A finding that a defendant is particularly
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amenable to probation may be supported “by the fact that th e offender is particularly
amenable to a relevant program of individua lized treatment in a probationary setting.”
Minn. Sent. Guidelines 2.D.3.a.(7). “[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 presump tively executed sentence.” State v. Trog, 323 N.W.2d 28,
31 (Minn. 1982). When considering whether to grant a dispositional departure, the district
court may consider factors such as “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.
Appellant essentially argues that the dist rict court abused its discretion by not
finding that he was particularly amenable to probation after he clai med that he had been
accepted into a program that would enable him to receive individualized treatment. He
argues that it is best for him and society if he receives a probationary sentence. He cites to
his remorse, lack of opportunity for rehabilitation fo llowing his prior DWI convictions,
and his willingness to change to support his argument that the district court abused its
discretion.
An examination of the record does not indi cate that this is a rare case requiring
reversal of the district court’s im position of the presumptive sentence. See State v.
Hennum, 441 N.W.2d 793, 801 (Minn. 1989) (holding that the case qualified as a rare case
justifying reversal of the district court’s imposition of the presumptive sentence because of
evidence that the victim had physically and mentally abused the defendant). The record
indicates that the district court clearly consid ered the reasons for and against departure.
The district court considered appellant’s sin cere interest in obtaining treatment, his prior
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treatment opportunities, and his previous behavior while on prob ation and parole.
Ultimately, the district court concluded there were not substantial and compelling reasons
to depart on the basis of his amenability to probation.
Even if the record di d support a finding that appellant is particularly amenable to
probation, “the mere fact that a mitigating factor is present in a particular case does ‘not
obligate the court to place de fendant on probation or impose a shorter term than the
presumptive term.’” State v. Pegel, 795 N.W.2d 251, 253-54 (Minn. App. 2011) (quoting
State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984)); see also State v. Olson, 765 N.W.2d 662,
664-65 (Minn. App. 2009) (“[T]he district court has discretion to impose a downward
dispositional departure if a defe ndant is particularly amenable to probation, but it is not
required to do so.”); State v. Evenson , 554 N.W.2d 409, 412 (Minn. App. 1996) (“Even
assuming [a defendant] is exceptionally amen able to treatment, his amenability does not
dictate the result.”), review denied (Minn. Oct. 29, 1996). The district court did not abuse
its discretion by imposing the presumptive sentence.
Affirmed.