State of Minnesota, Appellant,

This opinion will be unpublished and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
A17-1306

State of Minnesota,
Appellant,

vs.

Christopher Carl Remley,
Respondent.

Filed March 5, 2018
Affirmed; motion granted
Bratvold, Judge

Dakota County District Court
File No. 19HA-CR-16-2914

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

James C. Backstrom, Dakota County Attorney, Cassandra K. Shepherd, Assistant County
Attorney, Hastings, Minnesota (for appellant)

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

Considered and decided by Bratvold, Presiding Judge; Ross , Judge; and Johnson,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant State of Minnesota challenges respondent’s sentence, which included a
downward dispositional departure after respondent pleaded guilty to fifth-degree
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controlled substance crime. The state asserts that the district court erred by departing from
the Minnesota Sentencing Guidelines without substantial and compelling circumstances in
the record. Because the district court did not abuse its discretion, we affirm.
FACTS
On January 25, 2016, agents with the Dakota County Drug Taskforce executed a
search warrant at a home in Hastings, Minnesota. The agents discovered “two syringes,
one of which was loaded with a crystal substance” and “miscellaneous drug paraphernalia.”
The Minnesota Bureau of Criminal Apprehension determined that the syringe contained
0.12 grams of a mixture containing methamphetamine. Respondent Christopher Carl
Remley was at the home when the agents executed the warrant. He admitted to using
methamphetamine, but denied that the syringe belonged to him. The state charged Remley
with two offenses: fifth-degree controlled- substance crime in violation of Minn. Stat.
§ 152.025, subd. 2(a)(1) (2014), and possession of drug paraphernalia, a petty
misdemeanor, in violation of Minn. Stat. § 152.092 (2014).
On March 28, 2017, Remley waived his trial rights and pleaded guilty to
the January 25 controlled-substance offense, admitting that the substance was
methamphetamine and that it belonged to him. Remley also pleaded guilty to a separate
felony charge for counterfeiting that occurred on May 28, 2016. Remley’s plea
acknowledged that there was no agreement as to the sentence; his attorney would seek a
downward departure and the state would ask for a guidelines sentence. The district court
accepted the pleas and ordered a Presentence Investigation (PSI), as well as a psychological
and chemical-dependency evaluation. Sentencing was initially scheduled for May 19, but
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was continued at Remley’s request. The PSI report was filed on June 8, 2017, and indicated
that Remley had not completed the chemical-dependency evaluation.
On June 21, the parties appeared for sentencing. The court informed Remley that
the information in the PSI was “not necessarily sympathetic towards you, because you need
to get a chemical dependency assessment done and you need to get off the meth.” But the
court also noted that Remley had “gotten [him] self in a more stable situation,” ordered a
urinalysis, and continued sentencing to allow Remley to complete his chemical-
dependency evaluation. On June 29, probation filed the chemical-dependenc y evaluation,
which recommended that Remley complete an outpatient treatment program.
On June 30, the parties appeared for sentencing, and again, the court continued
sentencing to see “how [Remley] do[es] in treatment,” which was scheduled to begin on
July 6. At the same hearing, Remley pleaded guilty to several misdemeanors and related
probation violations, one of which occurred while he was awaiting sentencing on the
January 25 controlled-substance offense.
The parties appeared again for sentencing on August 15. Both parties commented
on materials submitted to the court. The PSI report summarized Remley’s personal and
criminal history, noted his criminal history score of seven, described Remley’s mental-
health issues and drug use, and stated that “there is concern about the level of commitment
he has to make any changes.” The report recommended a presumptive executed guidelines
sentence of 21 months.
Remley’s psychological evaluation noted that Remley had missed two scheduled
appointments, but completed his interview and testing. The evaluation stated that Remley
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had the following diagnoses: methamphetamine use disorder, opioid use disorder,
antisocial personality disorder, bipol ar disorder, and potential post-traumatic stress
disorder (P TSD). The report noted that Remley’s drug addiction is a “significantly
debilitating problem” and recommended a residential program that would incorporate
mental health treatment. The psychologist commented that Remley “has serious health
problems that suggest that this really is a life or death issue for him.” The report
recommended that Remley comply with his mental-health treatment plan, but also stated
that Remley “has no habit of such compliance.”
Remley’s probation officer prepared an addendum to the PSI report, which noted
that Remley had completed one outpatient treatment session in July, reported drug use on
that day, and was then a “no call/no show” for his subsequent sessions. After missing
several treatment sessions, Remley called the treatment center, informed them that he was
in jail, and stated that he wanted to attend a different treatment program because the first
program was faith-based and “he is not Christian.” The addendum noted that probation was
not able to verify whether Remley had started a different treatment program, that Remley
had not maintained contact with his supervising agent, and that he had a new charge
pending for check forgery on July 3, 2017.
During the sentencing hearing, Remley ’s attorney argued for a dispositional
departure, based on Remley’s particular amenability to probation. Remley’s attorney
explained that Remley’s entry into treatment was delayed because the first program was
faith-based and because insurance had delayed its approval of funding for the program.
Remley’s attorney also stated that, on August 17, Remley had an intake appointment
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scheduled with a different treatment program. If Remley were accepted, the program would
take ten months and would address both his substance-abuse and mental-health issues.
Remley’s counsel added that Remley was regularly attending Alcoholics Anonymous, was
working with an Adult Rehabilitative Mental Health Services (ARMHS) worker, and was
working full time . Remley’s attorney stated that Remley had secured stable housing and
had recently r econciled with his fa ther. Remley’s attorney argued that the changes in
Remley’s life were a “remarkable turnaround.”
Remley also addressed the court. Remley admitted that he struggled with
homelessness and drug addiction, but stated that he now had supportive people around him,
a good job, and stable housing. Remley stated that he recognized that he had never entered
a treatment program before and this opportunity “was a break of a lifetime.”
The state opposed any departure, arguing that Remley was not particularly amenable
to probation because he failed to comply with court orders, attend required evaluations,
and remain law abiding. The state asserted that, since the plea hearing, Remley “ha[d]
picked up the following new charges: [t]heft for shoplifting with a date of offense of April
14th, 2017; driving after revocation, with a date of offense of March 14th, 2017; an
additional theft by shoplifting, the date of offense of April 14th, 2017; and check forgery,
a felony, with a date of offense of July 3rd, 2017.” The state argued that, because there was
no basis to depart, “the guideline sentence [was] appropriate” and Remley should receive
a “middle-of-the-box” sentence of 25 months.
The district court stated that Remley’s evaluations indicated that some of his mental-
health issues stem from his inability to stop using drugs. The district court expressed
6
frustration with Remley for failing to begin treatment even though he had “several months
to kind of get the ball rolling on that.” The district court stated that, after reading the PSI
and psychological evaluation, it had planned to sentence Remley to jail for eight months
and require participation in a Dakota County treatment program. But, after hearing
arguments at sentencing, the district court decided to grant Remley’s motion, sentence one
of the felony charges, and continue sentencing on the other felony charge to determine
whether Remley could follow through with treatment.
The district court then sentenced Remley for 21 months, but stayed execution of the
sentence for five years on the condition that Remley start treatment on August 17, 2017.
The district court also imposed an additional 30 days in jail, but told Remley that he would
not serve that time if he started treatment on August 17. The district court also told Remley
that this was his chance to “sink or swim.”
The district court expressly found that Remley was particularly amenable to
probation, had shown remorse, accepted responsibility for his offense, and that Remley’s
compliance with probation would be ensured by the longer supervision period. The district
court also stated that Remley’s crime was less onerous than usual. The state appeals.
D E C I S I O N
I. We will not consider materials outside the district court record.

After the state appealed, Remley filed a motion to strike portions of the state’s brief
and addendum. Pages A1-A2 of the state’s addendum include an email exchange between
the district court judge, Remley’s attorney, the state’s attorney, and a probation officer.
Remley argues that this email exchange was not filed with the district court, and therefore
7
is not part of the record on appeal. “The documents filed in the [district] court, the exhibits,
and the transcript of the proceedi ngs, if any, shall constitute the record on appeal in all
cases.” Minn. R. Civ. App. P. 110.01. “An appellate court may not base its decision on
matters outside the record on appeal, and may not consider matters not produced and
received in evidence below.” Thiele v. Stich, 425 N.W.2d 580, 582- 83 (Minn. 1988). We
grant the motion to strike and decline to consider materials that are outside the record.
II. The district court did not abuse its discretion by granting Remley’s motion for
a downward dispositional departure.

The Minnesota Sentencing Guidelines provide a sentencing range for many
offenses, including the offense of which Remley was convicted, and a sentence within the
range is “presumed to be appropriate.” Minn. Sent. Guidelines 2.D.1. (2015 ). A district
court may depart from the presumed sentence only when there “exist identifiable,
substantial, and compelling circumstances that distinguish a case and overcome the
presumption in favor of the guidelines sentence.” State v. Soto, 855 N.W.2d 303, 308
(Minn. 2014) (quotation omitted); see also Minn. Sent. Guidelines cmt. 2.D.103. The
reasons for a sentencing departure must be “placed on the record at the time of sentencing.”
State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003).
We afford the district court “great discretion in the impos ition of sentences and
reverse sentencing decisions only for an abuse of that discretion.” Soto, 855 N.W.2d at
307-08. A district court may abuse its discretion when it does not “deliberately consider[]
circumstances for and against departure,” State v. Pegel, 795 N.W.2d 251, 253 (Minn. App.
2011), or when a sentence is “inconsistent with statutory requirements, unreasonable,
8
inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact
issued by the district court.” Minn. Stat. § 244.11, subd. 2(b) (2014).
A downward dispositional departure is based on “offender-related” factors and
focuses on the defendant as an individual. State v. Behl, 573 N.W.2d 711, 713 (Minn. App.
1998), review denied (Minn. Mar. 19, 1998). The sentencing guidelines contain a
“nonexclusive list” of mitigating factors that can justify a downward dispositional
departure. For example, a dispositional departure may be appropriate when “substantial
grounds exist that tend to excuse or mitigate the offender’s culpability,” or when the
offender is “particularly amenable to probation.” Minn. Sent. Guidelines 2.D.3.a (5), (7).
Particular amenability to probation by itself can support a downward departure. State v.
Gebeck, 635 N.W.2d 385, 389 (Minn. App. 2001); see also Soto, 855 N.W.2d at 308
(holding “mere” amenability to probation “does not rise to the level of what we have
previously held to justify a departure from the guidelines”).
The state argues that the reasons the court provided for its departure are not
supported by the record. Specifically, the state objects to the court’s findings that Remley
was particularly amenable to probation, that his longer supervision period ensures
compliance with probation, and that th is crime was less onerous than usual. Because a
finding of particular amenability to probation is sufficient to support a downward
departure, Gebeck, 635 N.W.2d at 389, and we conclude that the district court did not abuse
its discretion by making this finding, we address only the state’s first objection.
1

1 We note that the district court erred in its determination that a dispositional departure was
warranted because Remley’s offense was “less onerous than usual.” A dispositional
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Determining whether a defendant is particularly amenable to probation allows the
district court to consider “the defendant’s age, his prior record, his remorse, his
cooperation, his attitude while in court, and the support of friends and/or family.” State v.
Trog, 323 N.W.2d 28, 31 (Minn. 1982). “These factors are not to be applied mechanically,
but must be evaluated within the individual facts of each case.” State v. Sejnoha, 512
N.W.2d 597, 600 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994). “[A]menability
to probation depends on an offender’s ability to comply with the conditions of probation
and benefit from the opportunity for rehabilitation that probati on affords.” State v.
Hickman, 666 N.W.2d 729, 732 (Minn. App. 2003).
On appeal, the state argues that Remley is not particularly amenable to probation
because he failed to cooperate with his chemical-dependency and psychological
evaluations, missed meetings with this mental-health caseworker and with probation, and
did not begin treatment as scheduled. The state also argues that, after entering his guilty
plea, Remley failed to remain law-abiding. Taken together, the state argues, these facts
suggest that Remley is not amenable to probation.
The state’s argument on appeal repeats the argument it made at the sentencing
hearing. Our review of the record indicates that the district court carefully considered the
facts and openly struggled with its sentencing decision. The district court expressed

departure is based on “offender-related” factors and focuses on the defendant as an
individual. Behl, 573 N.W.2d at 713. A durational departure, on the other hand, may be
justified by offense-related reasons, such as the seriousness of the crime. State v. Rund, 896
N.W.2d 527, 533 (Minn. 2017). In light of our analysis of the other reason for departure,
the district court’s error was harmless.
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frustration with Remley’s failure to begin treatment and questioned Remley’s ability to
comply with the treatment plan. The court acknowledged that Remley has a history of
violating probation conditions.
The district court determined, however, that Remley was particularly amendable to
probation and granted his motion for a downward dispositional departure. The district court
heard arguments about Remley’s recent “remarkable turnaround” based on a stable home,
job, and relationships. Remley’s attorney explained why treatment had been delayed, and
the district court appeared to accept this explanation. The district court’s comments at
sentencing indicate that it weighed the facts, considered the arguments, and concluded that
Remley was particularly amendable to probation.
The district court also considered Remley’s motivation to finally rehabilitate. In a
similar context, this court has recognized that a district court may consider whether a
“defendant is amenable to supervision rather than imprisonment,” and , if “the risk of
placing him on probation [is] significantly outweighed by evidence that he [is] finally
motivated to try to rehabilitate himself.” State v. Malinski, 353 N.W.2d 207, 210 (Minn.
App. 1984), review denied (Minn. Oct. 16, 1984). Remley testified that he had never
“worked a [treatment] program like this.” Although the district court initially had planned
to send Remley to jail and require a Dakota County treatment program, it ultimately
determined that Remle y would benefit from a different treatment program and a longer
stayed sentence. The district court addressed public safety concerns by imposing a longer
supervision period, which it determined would ensure Remley’s compliance with the
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probation terms. Gebeck, 635 N.W.2d at 390 (“[P]robation thus provides the district court
with greater leverage to assure [an offender’s] success and the public’s safety.”).
The district court provided specific incentives for Remley to enter treatment, for
example, by continuing sentencing on another felony offense, to which Remley had entered
a guilty plea. The district court told Remley that if he violated probation, he would receive
a “top end of the box” sentence for that offense. Additionally, the court stayed execution
of the controlled-substance sentence on the condition that Remley began treatment on
August 17, 2017. The district court also imposed an additional 30 days in jail, but told
Remley that he would not have to serve the jail time if he started treatment on August 17.
The district court conditioned Remley’s probation on “maintaining [his] sobriety.”
Our review of the record leads us to conclude that the district court considered
factors both in favor of and against a dispositional departure, and determined that the
presumptive sentence was not the “best for [Remley] and for society.” See Malinski, 353
N.W.2d at 210 (citation omitted). We conclude that the district court did not abuse its
discretion by finding that Remley was particularly amenable to probation and granting
Remley’s motion for a downward dispositional departure.
Affirmed; motion granted.