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This opinion will be unpublished and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
A17-1457

State of Minnesota,
Respondent,

vs.

Corey Edward Fisherman,
Appellant.

Filed July 16, 2018
Affirmed
Reilly, Judge

Ramsey County District Court
File No. 62-CR-17-1420

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, John Donovan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Corey Edward Fisherman challe nges the district court’s sentencing
decision arising from his first-degree-aggravat ed-robbery conviction. The district court

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declined to grant a downward dispositiona l departure and imposed the presumptive
sentence of commitment to prison under the Mi nnesota Sentencing Guidelines. Because
the district court did not abuse its discretion in sentencing, we affirm.
D E C I S I O N
Appellant contends that the district court abused its discretion by denying his motion
for a downward dispositional departure. We re view a district court’s refusal to grant a
dispositional departure from the sentencing guidelines for an abuse of discretion, State v.
Bertsch, 707 N.W.2d 660, 668 (Minn. 2006), and we w ill affirm the imposition of a
sentence “when the record show s that the sentencing court carefully evaluated all the
testimony and information presented before making a determination.” State v. Johnson ,
831 N.W.2d 917, 925 (Minn. App. 2013), review denied (Minn. Sept. 17, 2013) (quotation
omitted).
The Minnesota Sentencing Guidelines pr escribe a sentence or a range for the
sentence that is “presumed to be appropriate.” State v. Soto, 855 N.W.2d 303, 308 (Minn.
2014) (quoting Minn. Sent. Guidelines 2.D.1 (2014)). The district court “must pronounce
a sentence within the applicable range unless there exist identifiable, substantial, and
compelling circumstances” distinguishing th e case and overcoming the presumption in
favor of the guidelines sentence. Id. A defendant’s “particular amenability to
individualized treatment in a probationary setting” may justify a downward dispositional
departure from a presumptive commitment to prison. Id. (quoting State v. Trog , 323
N.W.2d 28, 31 (Minn. 1982) (emphasis omitted)).

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Minnesota courts are guided by several factors, known as Trog factors, to determine
if a defendant is particularly amenable to individualized treatment in a probationary setting.
Trog, 323 N.W.2d at 31. These factors include “the defendant’s age, his prior record, his
remorse, his cooperation, his attitude while in court, and the support of [the defendant’s]
friends and/or family.” Id. Offense-related factors may also be used to support a
dispositional departure. State v. Chaklos , 528 N.W.2d 225, 228 (Minn. 1995); see also
Soto, 855 N.W.2d at 313 (considering circumstances of offense when reviewing departure
request). However, the presence of mitigati ng factors “[does] not obligate the court to
place defendant on probation. . . .” State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).
Here, the state charged appellant with first-degree aggravated robbery, alleging that
in February 2017 appellant engaged in a physical struggle with another man and stole his
laptop. Appellant entered a plea of guilty to the charge and moved for a dispositional
departure from the presumptive sentence unde r the Minnesota Sentencing Guidelines,
arguing that he was particularly amenable to treatment in a probationary setting, based on
his level of remorse, his cooperation and attitude in court, and his willingness to participate
in a culturally specific treatment program. The district court denied the motion and
imposed the presumptive sentence.
An analysis of the Trog factors supports the district court’s decision. Appellant was
32 years old at sentencing. His criminal history includes numerous convictions of violent
offenses, including first-degree burglary, second-degree assault with a dangerous weapon,
threats of violence, and second-degree assau lt with a dangerous weapon, as well as two
escape-from-custody convictions and a number of gross mi sdemeanor and misdemeanor

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convictions for domestic assault. The district court found that appellant had a “significant
felony history” involving “a significant numbe r of person offenses,” weighing against a
dispositional departure because it showed he was not amenable to probation. While
appellant argued that he accepted responsib ility for his crime, sh owed remorse, and
cooperated with the proceedings, appellant made no reference to remorse or acceptance of
responsibility during his sentencing hearing. Lastly, while a ppellant claimed to have the
support of family or friends, defense counsel conceded that they could not corroborate the
claim because they could not reach any family members or friends to appear on defendant’s
behalf in court. A review of these factors supports a conclusion that appellant is not
particularly amenable to individualized treatment in a probationary setting. Trog, 323
N.W.2d at 31.
A consideration of these factors, taken together, demonstrates that the district court
did not abuse its discretion by determini ng that a dispositional departure was not
appropriate in this case. Moreover, even if appellant had presented evidence that he was
particularly amenable to probation, the se ntencing court was not required to grant a
dispositional departure. See Wall, 343 N.W.2d at 25 (“The fact that a mitigating factor was
clearly present did not obligate the court to place defendant on probation or impose a
shorter term than the presumptive term.”); see also Bertsch , 707 N.W.2d at 668 (stating
that appellate courts “will not or dinarily interfere with a [pre sumptive] sentence . . . even
if there are grounds that would justify departure” (quotation omitted)).
The Minnesota Supreme Court recognized that only the “rare case” merits reversal
based on the district court’s refusal to depart from the sentencing guidelines. State v.

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Kindem, 313 N.W.2d 6, 7 (Minn. 1981). This is not the “rare case” compelling reversal.
The district court considered the circumstan ces for and against departure and concluded
that appellant was not entitled to a downward dispositional departure from the sentencing
guidelines. Because the record supports the district court’s decision, we affirm.
Affirmed.