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This opinion will be unpublished and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
A17-0731

State of Minnesota,
Respondent,

vs.

Kevon Dante Vaughn,
Appellant.

Filed February 12, 2018
Affirmed in part, reversed in part, and remanded
Kirk, Judge

Ramsey County District Court
File No. 62-CR-15-8655

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

John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

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

Considered and decided by Kirk, Presiding Judge; Halbrooks, Judge; and Schellhas,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges his 82-month prison sentence, arguing that (1) he is entitled to
withdraw his guilty plea, and if he elects not to do so, he is entitled to resentencing under

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the 2016 Drug Sentencing Reform Act’s (DSRA) amended sentencing guidelines a nd
(2) the district court abused its discretion in denying his motion for a downward
dispositional departure. We conclude that appellant is entitled to resentencing but that he
is not entitled to withdraw his guilty plea. We also conclude that the distri ct court did not
abuse its discretion in denying appellant’s departure motion. We affirm in part, reverse in
part, and remand for resentencing.
FACTS
On November 3, 2015, appellant Kevon Dante Vaughn was charged with (1) first -
degree controlled-substance crime, possession of ten or more grams of cocaine with intent
to sell, pursuant to Minn. Stat. § 152.021, subd. 1(1) (2014); and (2) possession of a stolen
firearm, pursuant to Minn. Stat. § 609.53, subd. 1 (2014) , for offenses alleged to have
occurred on September 19, 2015. On October 10, 2016, appellant pleaded guilty to count
1, first -degree controlled -substance crime, in exchange for dismissal of count 2 and a
sentence of the “low end of the box minus 12 months.”
On January 11, 2017, appell ant moved to withdraw his guilty plea, arguing that
because his attorney mistakenly told him at the plea hearing that he was pleading guilty to
a severity level eight offense, not a severity level nine offense, he was misled regarding the
expected length o f his sentence. The district court granted his motion, finding that
appellant’s attorney misrepresented the length of the sentence that he faced, that the state
would not be prejudiced by plea withdrawal, and that it was fair and just to allow appellant
to withdraw his guilty plea.

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On January 18, appellant again pleaded guilty to count 1, in exchange for dismissal
of count 2, and an 82-month sentence of “the low end of the box less 12 months,” with the
ability to argue for a downward dispositional departure, which the state planned to oppose.
Appellant filed his departure motion on January 31, asserting that he accepted
responsibility for this offense early on in the court proceedings and that he is amenable to
probation.
At the February 8 sentencing h earing, appellant’s attorney argued that appellant is
particularly amenable to probation and treatment and asserted that appellant took
responsibility early on for this offense b y pleading guilty. Appellant’s attorney also
emphasized that appellant comes from a difficult background and struggles with addiction.
Appellant’s attorney noted that, during his pretrial incarceration for this offense, appellant
sought mental-health and addiction treatment . Appellant’s attorney requested a stayed
sentence and probation for appellant so that he could seek treatment. Appellant stated that
he has “changed a lot” since being incarcerated fo r this offense and that he wants to seek
treatment. Appellant also asserted that he is not a career criminal and that he has not been
convicted of any serious violent crimes.
The state argued that there were not substantial or compelling reasons to depart from
the sentencing guidelines and that appellant admitted to this serious offense. The state also
noted that appellant was on felony probation when he committed this offense, that he has
two prior felony convictions, and that he has a pending possession charge for which he
failed to appear. The state added that, while on probation, appellant also failed to appear
for two mental-health appointments and failed to enroll in domestic-abuse counseling. The

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state asserted that appellant is not particularly amenable to probation or treatment and asked
the court to impose the agreed-upon 82-month prison sentence.
In denying appellant’s motion for a downward dispositional departure, the district
court found that appellant failed to take advantage of past opportunities . The court also
noted that appellant has a criminal record, including terroristic threats, and that his conduct
evinces criminal thinking. The district court did acknowledge that appellant was taking
advantage of treatment opportunities while incarcerated and that he appeared to be doing
well, which did indicate amenability to probation. But ultimately, t he court found that
appellant’s past behavior has not shown amenability to probation.
The district court disagreed with appellant’s claim that he took responsibility early
by pleading guilty becaus e he withdrew his first guilty plea. Appellant’s attorney
responded that appellant was permitted to withdraw his plea based on his attorney’s error
and that withdraw ing his plea did not have anything to do with appellant accepting
responsibility. The district court replied, “Nevertheless, I don’t have evidence of early
resolution in this case.” 1 The district court denied appellant’s motion for a d ownward
dispositional departure but granted a downward durational departure based on the parties’
agreement, sentencing appellant to 82 months in prison.2 This appeal follows.

1 The record reflects that appellant entered his first guilty plea just over 11 months after he
was charged.
2 Although substantial and compelling circumstances must exist to support a bargained-for
sentencing departure, we need not address this record’s lack of support because here we
remand for resentencing. See State v. Misquadace , 644 N.W.2d 65, 71 (Minn. 200 2)
(holding that even a bargained-for sentencing departure may be reviewed for adequacy).

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D E C I S I O N
I. Appellant is entitled to be resentenced under the 2016 Minnesota Sentencing
Guidelines.

Appellant argues that because he was not sentenced under the DSRA-amended
sentencing guidelines, he “never received the benefit of h is plea bargain,” and that his
guilty plea was therefore involuntary. Appellant acknowledges that , when his sentence
was imposed, neither the parties nor the district court recognized that his agreed -upon
sentence was based on the incorrect sentencing guidelines . Appellant asks this court to
reverse and remand to the district court for resentencing, unless he elects to withdraw his
guilty plea.
The state argues that appellant is not entitled to choose whether or not he withdraws
his guilty plea, and that prejudice to the state is highly likely if appellant is permitted to do
so because this offense occurred in 2015 and a trial would not be held until sometime in
2018. However, the state agrees that appellant is entitled to be resentenced under the 2016
sentencing guidelines pursuant to the recent Minnesota Supreme Court decision in State v.
Kirby, 899 N.W.2d 485 (Minn. 2017). In Kirby, the supreme court held that, through the
amelioration doctrine, if a final judgment was not entered in a defendant’s case befor e the
DSRA-amended sentencing guidelines took effect, and if that defendant would have
received a reduced sentence under the new guidelines, then that defendant is entitled to be
resentenced under the new guidelines. 899 N.W.2d at 496. The state notes that, at the time
of sentencing, appellant received the benefit of his plea bargain and argues that after he is

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resentenced under the 2016 sentencing guidelines he will again have the benefit of his plea
bargain.
Appellant’s case had not reached final judgment when the DSRA went into effect
on May 23, 2016. 2016 Minn. Laws ch. 160, § 18 (b), at 591 (stating that the DSRA is
effective the day following final enactment); see also State v. Losh, 721 N.W.2d 886, 893-
94 (Minn. 2006) (stating that a case is pending until the availability of direct appeal is
exhausted). Appellant did not even enter his first guilty plea until January 11, 2017, after
the DSRA’s effective date . Additionally, the DSRA’s amended sentencing g rid would
have decreased appellant’s presumptive sentencing range, and as a result, would have
decreased the sentence that he bargained for during plea negotiations. When he was
sentenced, appellant’s presumptive sentencing range was 94 to 132 months . Minn. Sent.
Guidelines 4.A (Supp. 2015). Twelve months less than the bottom of the box resulted in a
bargained-for sentence of 82 months. Under the DSRA -amended sentencing guidelines,
appellant’s presumptive sentencing range would have been 73 to 102 months. Minn. Sent.
Guidelines 4.C (2016). Twelve months less than the bottom of the box would have been a
sentence of 61 months. Thus, under Kirby, appellant is entitled to be resentenced.
Appellant contends that, because his plea agreement was for the “low end of the box
less [12] months,” he should be resentenced to 61 months. But the district court remains
in the best position to weigh sentencing options and is not required to adhere to the parties’
agreement on remand, although failure to do so may entitle appellant to withdraw his guilty
plea. See State v. Jumping Eagle, 620 N.W.2d 42, 45 (Minn. 2000) (holding that on remand
the district court must either allow plea withdrawal, or sentence in comp liance with the

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original plea agreement); Perkins v. State, 559 N.W.2d 678, 687 (Minn. 1997) (noting that
if a defendant does not receive the benefit of his plea bargain on remand, he is entitled to
withdraw his guilty plea). On resentencing, a district court cannot impose a longer sentence
than the one or iginally imposed. See State v. Prudhomme , 303 Minn. 376, 380, 228
N.W.2d 243, 246 (1975).
When appellant was sentenced, the supreme court had not yet issued the Kirby
decision, and as such, the DSRA -amended sentencing grid did not apply at that time .
Accordingly, appellant received the benefit of his plea bargain based on the law at that
time. Post Kirby, appellant is now entitled to be resentenced under the DSRA -amended
sentencing grid, and on remand, he may again be sentenced in compliance with the terms
of his plea agreement. Thus, this record does not support plea withdrawal.
We reverse appellant’s sentence and remand for resentencing in accordance with
the DSRA-amended sentencing guidelines.
II. The district court did not abuse its discretion in denying appellant’s motion for
a downward dispositional departure.

“We afford the [district] court great discretion 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) (quotation omitted). “A sentencing court ‘must
pronounce a sentence within the applicable range unless there exist identifiable, substantial,
and compelling circumstances’ that distinguish a case and overcome the presumption in
favor of the guidelines sentence.” Id. at 308 (quoting Minn. Sent. Guidelines 2.D.1 (2014)).
The district court may depart from the presumptive guidelines sentence if the case involves

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“substantial and compelling circumstances” to warrant the departure, but th e district court
is not required to do so. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (“[T]he Guidelines
state that when substantial and compelling circumstances are present, the judge ‘may’
depart.”). Substantial and compelling circumstances are thos e that make a case atypical.
Taylor v. State, 670 N.W.2d 584, 587 (Minn. 2003). This court will only reverse a district
court’s refusal to depart in a “rare case.” Kindem, 313 N.W.2d at 7.
When considering a dispositional departure, a district court m ay consider both
offender-related and offense -related factors. State v. Behl, 573 N.W.2d 711, 713 (Minn.
App. 1998) (citing State v. Chaklos , 528 N.W.2d 225, 228 (Minn. 1995)), review denied
(Minn. Mar. 19, 1998). But even if mitigating factors are present to support a downward
departure, the district court is not required to depart. State v. Pegel, 795 N.W.2d 251, 253-
54 (Minn. App. 2011) (citing State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984)). “Numerous
factors, including the defendant’s age, his prior record, his remorse, his cooperation, his
attitude while in court, and the support of friends and/or family, are relevant” to a
downward dispositional departure. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
Appellant argues that the district court ab used its discretion in denying his motion
for a downward dispositional departure because he is particularly amenable to probation
and he has accepted responsibility for his crime. Appellant also argues that the district
court improperly relied on the withdrawal of his first guilty plea in denying his motion for
a downward dispositional departure. Although the district court initially noted its concern
regarding appellant’s plea withdrawal, appellant’s attorney argued at the sentencing
hearing that it was improper for the court to rely on appellant’s previous plea withdrawal

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in deciding his departure motion. The district court then responded by noting that, even if
appellant had not withdrawn his first guilty plea, this case would not have resolved “early.”
Appellant argues that this court should remand to the district court for reconsideration of
his departure motion.
At sentencing, based on the evidence, arguments, and statements presented, the
district court concluded that, despite some indication of amenability to probation, a
downward dispositional departure was not appropriate. The district court implicit ly
concluded that substantial and compelling circumstances do not exist here and that this
case is not the “rare” or “atypical” case meriting a dispositional departure. Taylor, 670
N.W.2d at 589; Kindem, 313 N.W.2d at 7. On this record, the district court did not abuse
its discretion when it denied appellant’s motion for a downward dispositional departure
after considering all of the circumstances of this case. We affirm the district court’s denial
of appellant’s motion for a downward dispositional departure.
Affirmed in part, reversed in part, and remanded.