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This opinion will be unpublished and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
A17-0888

State of Minnesota,
Respondent,

vs.

Felix Velasquez,
Appellant

Filed March 5, 2018
Affirmed
Worke, Judge

Ramsey County District Court
File No. 62-CR-16-6512

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

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

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

Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Ross,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the district court abused its discretion by denying his motion
for a downward dispositional departure. We affirm.

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FACTS
On June 22, 2016, appellant Felix Velasquez was at a wake for his uncle. Velasquez
believed that J.N., another attendee, was intoxicated and disrespectful, so Velasquez tried
to remove him from the wake. Velasquez followed J.N. into the street and punched him
several times, causing J.N. to fall and hit his head. Velasquez recorded the incident with
his phone. J.N. was transported to the hospital, where he had emergency surgery to repair
a brain bleed.
Velasquez was charged with first-degree assault—great bodily harm. Velasquez
entered a straight plea of guilty without an agreement concerning sentencing. At the
sentencing hearing, Velasquez moved for a downward dispositional departure. The district
court denied the moti on and sentenced Velasquez to 98 months in prison. This appeal
followed.
D E C I S I O N
Velasquez argues that the district court abused its discretion by denying his motion
for a downward dispositional departure because (1) several factors demonstrated that he
was particularly amenable to probation and (2) the state did not disclose his February 2017
arrest and his questioning in a homicide investigation. The decision to depart lies within
the district court’s discretion, and this court will not reverse absent an abuse of that
discretion. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).
The district court may depart from the presumptive sentence only if substantial and
compelling circumstances warrant a departure. State v. Cameron , 370 N.W.2d 486, 487
(Minn. App. 1985), review denied (Minn. Aug. 29, 1985). The district court must

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deliberately consider the circumstances for and against departure . State v. Mendoza, 638
N.W.2d 480, 483 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002). Several
factors, including “the defendant’s age, his prior record, his remorse, his cooperation, his
attitude while in court, and the support of friends and/o r family” are relevant to a
determination of whether a dispositional departure is appropriate. State v. Trog, 323
N.W.2d 28, 31 (Minn. 1982). However, the presence of a mitigating factor does not
obligate the district court to dispositionally or duration ally depart. State v. Wall , 343
N.W.2d 22, 25 (Minn. 1984). It is a “rare case which would warrant reversal of the refusal
to depart.” State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Velasquez argues that his age and prior record, remorse, cooperation, community
support, and prior history on probation all weigh in favor of a downward dispositional
departure. However, this argument conflicts with the record. At the time he committed
the first-degree assault, Velasquez had been on probation for a prior d rug-related offense
for approximately two weeks. Prior to the completion of the pre -sentence investigation
(PSI), Velasquez missed two appointments with probation, as well as two drug tests. After
completion of the PSI, Velasquez missed another two appoi ntments with probation.
Velasquez was also arrested for a new drug offense in February 2017. Velasquez was
“deceptive” with his probation officer about being enrolled in a GED program, and after
he did enroll, Velasquez missed classes.
The probation department stated that it was “unaware of any mitigating factors that
would warrant a departure from the sentencing guidelines.” Although the PSI noted that
Velasquez accepted responsibility for his actions and appeared to express sincere remorse,

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the pro bation department also concluded that the facts of the offense, including that
Velasquez recorded the assault and caused the victim severe and permanent injury,
outweighed those considerations. Based on this record, the district court did not abuse its
discretion by denying Velasquez’s motion for a downward dispositional departure.
Velasquez also argues that this court should remand to the district court due to the
state’s “non -disclosure” of Velasquez’s February 2017 arrest and his questioning in a
homicide investigation. Velasquez relies on State v. Soto to support this argument. See
855 N.W.2d 303, 308 (Minn. 2014). However, Soto does not address whether the state
must disclose this information to the defense prior to a sentencing hearing. See id. Because
Velasquez cites no other legal authority suggesting that the state needed to disclose this
information prior to sentencing, we need not remand to the district court.
Affirmed.