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This opinion will be unpublished and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
A17-0463

State of Minnesota,
Respondent,

vs.

Brandon Deshawn Wilkes,
Appellant.

Filed January 29, 2018
Affirmed
Rodenberg, Judge

Stearns County District Court
File No. 73-CR-16-2385

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

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presid ing Judge; Worke, Judge; and Rodenberg,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Brandon Deshawn Wilkes appe als from his concurrent 84-month and 95-
month sentences for aggravated robbery and aiding and abetting first-degree aggravated

2
robbery, after pleading guilty as part of a plea agreement. He argues that the district court
erred by denying his requests fo r a downward dispositional departure and a sentence to
alternative placement under Minn. Stat. § 609.1055 (2014). We affirm.
FACTS
After an incident occurring on March 12, 2016, appellant Brian Deshawn Wilkes
was charged with one count of first-degree aggravated robbery, one count of aiding and
abetting first-degree aggravated robbery, and one count of aiding and abetting a person
previously convicted of a violent crime in possessing a firearm. Appellant pleaded guilty
to first-degree aggravated robbery and aiding and abetting first-degree aggravated robbery
in exchange for the dismissal of the remaining count and an agreement from the state that
it would request a sentence of no more than 95 months in prison. Appellant admitted under
oath that, on March 12, 2016, he and another person, B.D., robbed a couple. B.D. pointed
a pellet gun at the female’s face and took he r purse. Appellant took the purse and put the
woman’s property in his pocket. Appellant threatened the male with a taser1 and took the
male’s phone. Appellant testified that he did not think that he used the taser on the male,
but he also said that he would not disagree with the male’s claim that he did so.
At sentencing, appellant’s probation officer, Thomas Hayden, testified that, because
of appellant’s “severe and pers istent mental health issues,” he would be concerned for
appellant’s personal safety if appellant went back to prison. Hayden opined that the only

1 While it is unclear whether appellant had a Taser-branded device or another handheld
stun gun, we refer to the device used by appella nt as a “taser” to be consistent with the
record below.

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alternative to prison would be a long-term evaluation at a state hospital to stabilize
appellant on medication. Hayden further opin ed that if appellant had a positive support
system, it would enable him to be successf ul in the community and treatment. However,
Hayden agreed that it would be hard for him to say whether a prison sentence is appropriate
because he did not know the facts of this specific offense.
In response to questioning by the district court, Hayden testified that appellant had
attempted a number of treatment programs, but was “unsuccessfully discharged” from each
because he stopped taking his medications. Although Hayden said he was unfamiliar with
an incident, identified by the district court as one wherein appellant had thrown a chair at
someone at treatment, Hayden “still believe[s ] that [appellant] is a good person” and
thought that “stabilization of [appellant] . . . on medication would help him long-term.”
Hayden added that “[w]hether [the stabilization] be in a tr eatment program, in a prison
setting, or in a community setting . . . is up to the Court.” The district court asked Hayden
how it could incorporate his recommendations in a probationary sentence. Hayden was
unsure. Hayden stated that the Anoka state hospital has worked with patients like appellant
in the past, but he added that “everybody that [he] deal[s] with already comes with an order
to go there.”
Appellant’s attorney requested that the district court dispositionally depart from the
presumptive sentence under th e Minnesota Sentencing Guid elines and instead sentence
appellant to probation, but added that “[i]f the Court’s not inclined to depart in this matter,
the plea agreement does call for [appellant] to se rve no more than 95 months.” The state
argued for a prison sentence of 95 months, noting that this was appellant’s third aggravated

4
robbery and that appellant had committed multiple offenses while under supervision. The
district court found no substantial and comp elling circumstances to warrant a departure
from the guidelines. It stated that it did not “h ave a lot of viable options as to how to get
[appellant] the help that [he] need[s]” and noted the absence of any testimony or evidence
that appellant could not receive the needed medications if he was imprisoned. The district
court sentenced appellant to 84 months in prison for aggravated robbery and 95 months in
prison for aiding and abetting aggravated robb ery, with the sentences to be served
concurrently.
This appeal followed.
D E C I S I O N
In this appeal from a final judgment of conviction, appellant requests that his
sentence be reversed and that the case be remanded with instructions that the district court
must dispositionally depart from the sentencing guidelines and order alternative placement
under Minn. Stat. § 609.1055.
“We afford the trial court great discreti on in the imposition of sentences and reverse
sentencing decisions only for an abuse of that discretion.” State v. Soto, 855 N.W.2d 303,
307-08 (Minn. 2014) (internal quotation omitted). “[W]e will not ordinarily interfere with
a sentence falling within the presumptive se ntence range, either dispositionally or
durationally, even if there are grounds that would justify departure.” State v. Bertsch, 707
N.W.2d 660, 668 (Minn. 2006) (quotation and alteration omitted). We “may not interfere
with the sentencing court’s ex ercise of discretion, as lo ng as the record shows the
sentencing court carefully evaluated all the testimony and informati on presented before

5
making a determination.” State v. Van Ruler, 378 N.W.2d 77, 80-81 (Minn. App. 1985).
Only in rare cases does a refusal to depart warrant reversal. Bertsch, 707 N.W.2d at 668.
Appellant argues that the district court abused its discretion when it denied the
requested departure. First, he argues that th e district court failed to consider whether an
alternative placement was consistent with public safety. Second, appellant argues that the
district court abused its discretion by denying the departure “in part because it appeared to
believe that it needed to affirmatively know where [appellant]’s placement would be.”
Third, appellant argues that Mi nn. Stat. § 609.1055 itself is a substantial and compelling
circumstance justifying a departure.
Appellant’s first and third arguments concern the application of section 609.1055.
When sentencing “an offender with a serious and persistent mental illness,” the statute
allows the district court, “when consistent with public safety, [to] instead [of a prison
sentence] place the offender on probation or continue the offender’s probation and require
as a condition of the probation that the offe nder successfully complete an appropriate
supervised alternative living program having a mental health treatment component.” Minn.
Stat. § 609.1055. Even when Minn. Stat. § 60 9.1055 applies to a particular case, the
decision of whether to place “a mentally ill offender on proba tion conditioned on
completion of a supervised alte rnative-living program is disc retionary with the district
court.” State v. Abdi, 855 N.W.2d 546, 548 (Minn. App. 2014).
Appellant faced a presumptive prison sent ence under the sentencing guidelines for
these convictions. The sentencing worksheets indicate that, based on appellant’s criminal-
history score and the severity level of his offenses, the presumptive sentence for the

6
aggravated-robbery conviction was a 111-month prison term, with a sentencing range from
95 to 132 months. Additionally, the record shows that appellant has a serious and persistent
mental illness. A serious and persistent mental illness includes a diagnosed mental illness
that significantly impairs the person’s func tioning and is confirme d by a written opinion
from a mental health professional stating that future episodes requiring treatment are likely.
Minn. Stat. § 245.462, subd. 20(c)(4) (2014 ). Hayden’s unrebutted testimony is that
appellant’s mental health state constitutes a serious and persistent mental illness.
However, appellant’s argument that the dist rict court erred in denying the requested
departure seems to be based on the faulty premise that Minn. Stat. § 609.1055 required the
district court to order an alternative placement if certain conditions were met. Specifically,
appellant identifies three statutory conditions: “(1) the district court would be committing
the defendant to the commissioner of corrections . . . ; (2) the defendant has a serious and
persistent mental illness; and (3) the placement is consistent with public safety.” But even
under those conditions, Minn. Stat. § 609.1055 states that the district court may order the
offender to alternative placement. Likewise , the Minnesota Sentencing Guidelines states
that “[t]he court . . . ordering an alternativ e placement under Minnesota Statutes section
609.1055 for an offender with a serious and persistent ment al illness” may be used as a
reason for a departure. Minn. Sent. Guidelines 2.D.3(a)(6) (2016). As we stated in Abdi,
“In construing statutes, [m]ay is permissive . ” 8 5 5 N . W . 2 d a t 548 (citing Minn. Stat.
§ 645.44, subd. 15 (2012)) (quotation marks om itted) (alteration in original). As such,
Minn. Stat. § 609.1055 gives the district court the authority to order alternative placement
instead of imprisoning a defendant with a seri ous and persistent mental illness, but the

7
statute does not require such a result, even if alternative placement would be consistent
with public safety.
Regardless, Abdi stated that Minn. Stat. § 609.1 055 “specifically provides that
[public safety] is to be considered” by the district court in determining whether to order a
defendant with a serious and persistent mental illness to alternative placement. Id. at 550.
Appellant contends that the district court erred by not discussing public safety as part of its
explanation for denying the departure at the sentencing hearing. Essentially, appellant
argues that the district court erred by not using the specific words “public safety” when it
sentenced him. This, appellant argues, amounts to the district court “fail[ing] to exercise
its discretion.”
We have held that “[a]lthough the tria l court is required to give reasons for
departure, an explanation is not required when the court c onsiders reasons for departure
but elects to impose the presumptive sentence.” Van Ruler, 378 N.W.2d at 80. The district
court chose not to depart from the guidelines and instead imposed a sentence within the
presumptive guidelines range. As such, the di strict court was requi red to consider the
reasons proposed for the departure but it was not required to provide a detailed explanation
of its reasons for not departing.
The record shows that the district court considered the reasons proposed in support
of the departure. The district court h eard arguments from appellant’s attorney, and
appellant had the opportunity to personally address the district court. The district court
reviewed the Presentence Inve stigation Report (PSI), sentencing worksheets, and two
letters that appellant had written to the district court regarding his departure request before

8
the sentencing hearing. The PSI listed appellant’s unsuccessful past attempts at treatment
programs and appellant’s crim inal record, which contained “numerous offenses that are
violent and serious in nature.” The PSI also pointed out that appellant committed a felony-
level drug offense while on supervised release, and that this aggravated robbery occurred
only four months after appella nt was released from prison and while he was still on
supervised release. Furthe r, the PSI explained that appellant was discharged from a
treatment program after he “b ecame angry and threw a chair,” and that during treatment,
appellant “was not attending appointments, wa s not taking his medications as prescribed,
was confrontational, angry, defensive, hearing voices, and did not cooperate when he was
interviewed.”
After reviewing and consider ing all of this, and considering the arguments of
counsel, the district court found that there were no substantial and compelling
circumstances warranting a departure, that there did not appear to be many viable options
to get appellant the treatment that he needed as part of a probationary sentence, and that
there was no evidence that appellant could not receive the medicati ons he needed in a
prison setting. The district court implicitly found that the interests of public safety
disfavored a departure from the guidelines th at would place appellant on probation. It
considered the evid ence of appellant’s failures to comp lete treatment in the past and the
fact that he had previously committed two offenses while on supervised release. While
Abdi requires that the district co urt consider public safety as a factor, which the district
court did here, the district c ourt was not required to explain in detail why it rejected the
proposed departure. Van Ruler, 378 N.W.2d at 80.

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Finally, appellant’s argument that the di strict court impermissibly denied the
departure by reading a requirement of an immediately available placement into the statute
is not supported by the record. The district court stated that there did not seem to be “a lot
of viable options” (emphasis added) where appellant could receive treatment. One of those
options, as acknowledged by both Hayden and appellant’s attorney, was prison. The record
shows that the district court considered the options presented to it. The district court asked
Hayden how to get appellant into an intens ive residential program under a probationary
sentence, and Hayden was unsure. Hayden had testified that appellant was “unsuccessfully
discharged” from treatment because appellant would stop taking his medications when he
thought things were going well. The district court consider ed evidence of appellant’s
previous failed treatment attempts and repeated failure to fully par ticipate in treatment
programs. The record supports the district court’s determination that treatment programs—
whether immediately available or not—were ineffective for appellant.
The district court acted within its discretion. This is not one of the “rare” cases
where the district court’s sentence consiste nt with the sentencing guidelines warrants
reversal. See Bertsch, 707 N.W.2d at 668.
Affirmed.