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This opinion will be unpublished and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
A17-1407

State of Minnesota,
Respondent,

vs.

Erik Paul Ellingson,
Appellant.

Filed April 9, 2018
Affirmed
Bjorkman, Judge

Douglas County District Court
File No. 21-CR-16-1655

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

Chad M. Larson, Douglas County Attorney, Alexandria, Minnesota (for respondent)

Charles F. Clippert, Clippert Law Firm, P.L.L.C., St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M. , Presiding Judge; Bjorkman, Judge;
and Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his sentence for first-degree criminal sexual conduct, arguing
that the district court abused its discretion by denying a downward dispositional departure.
We affirm.

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FACTS
In October 2016, appellant Erik Ellingson threatened, physically restrained and
assaulted, and sexually assaulted his female roommate. Ellingson pleaded guilty to first -
degree criminal sexual conduct.
At sentencing, Ellingson moved for a downward dispositional departure. He
supported his request with the testimony and report of a forensic psychologist who
recounted Ellingson’s mental -health and chemical -dependency problems and
recommended that Ellingson receive inpatient treatment rather than a prison sentence. The
state urged the district court to follow the presentence investigation report (PSI), which
noted Ellin gson’s lack of empathy or remorse and recommended an executed prison
sentence “in accordance with the upper range of the presumptive guidelines sentence.” The
district court denied Ellingson’s motion and imposed a presumptive 172 -month prison
sentence. Ellingson appeals.
D E C I S I O N
We review a district court’ s denial of a sentencing departure for an abuse of
discretion. State v. Geller , 665 N.W.2d 514, 516 (Minn. 2003) . We will reverse a
presumptive sentence only in “rare” cases. State v. Bertsch, 707 N.W.2d 660, 668 (Minn.
2006) (quotation omitted).
A district court must impose a presumptive sentence unless “identifiable,
substantial, and compelling circumstances” justify a departure. Minn. Sent. Guidelines
2.D.1 (2016). Dispositional departures are based on the defendant’s characteristics,
focusing on w hether he is “particularly suitable for individualized treatment in a

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probationary setting.” State v. Solberg , 882 N.W.2d 618, 623 (Minn. 2016) (quotation
omitted). A court may consider a defend ant’s age, prior record, remorse, cooperation,
attitude in court, and the support of friends and family in determining whether he is
particularly amenable to probation. State v. Trog , 323 N.W.2d 28, 31 (Minn. 1982) ; see
also State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (explaining that remorse,
or lack thereof, bears on amenability to probation, particularly in sentencing for crimes
against a person). But even when a mitigating factor is present, the district court is not
obligated to depart. State v. Pegel, 795 N.W.2d 251, 253-54 (Minn. App. 2011).
Ellingson argues that the district court abused its discretion by denying a downward
dispositional departure because he is particularly amenable to probation, “as demonstrated
by” the psychologist’s testimony. This argument is unavailing.
Some aspects of the psychologist’s testimony are consistent with Ellingson’s
contention. The psychologist opined that Ellingson has a relatively good sex -offender
treatment prognosis because he “is willing to admit that his sexual adjustment is profoundly
problematical,” and he cautioned against sending Ellingson to prison because he would
present a suicide risk and learn inappropriate behaviors. But that is not the whole picture.
The psychologist describe d some positive indicators , but he did not expressly opine that
Ellingson is particularly amenable to treatment in a probationary setting. And he
acknowledged countervailing considerations , including Ellingson’s c ritical need for
intensive chemical -dependency and mental -health treatment before he is able to p ursue
sex-offender treatment, and the risk of behavioral violence and re-offense presented by his
untreated anger and chemical dependency. He also acknowledged that Ellingson may

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receive treatment in priso n. Moreover, the PSI highlights concerns that the psychologist
did not address . It notes that Ellingson not only failed to verbalize any empathy toward
the victim but “appeared to blame [her] for his actions .” Ellingson expressed anger and
resentment toward her: “ She knew there was a problem with [his alcohol abuse], but she
did nothing about it. She didn’t say anything. She wasn’t a friend.”
This record amply establishes that Ellingson needs intensive, multi -faceted
treatment. B ut it contains conflicting indications regarding his amenability to treatment
and other aspects of probation. The district court considered those indications, particularly
Ellingson’s lack of empathy or remorse for his violent offense , and determined that they
did not support a downward dispositional departure. See Bauerly, 520 N.W.2d at 762
(stating that lack of remorse bears on amenability to probation ). We discern no abuse of
discretion by the district court in imposing the presumptive prison sentence.
Affirmed.