State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1874

State of Minnesota,
Respondent,

vs.

Rick William Olsen,
Appellant.

Filed February 19, 2019
Affirmed
Schellhas, Judge

Dakota County District Court
File No. 19HA-CR-15-3088

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

Keith Ellison, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Dain Olson, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Schellhas, Judge; and Smith,
John, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant argues that he is entitled to withdraw his guilty plea under the manifest -
injustice standard because his plea was involuntary. Alternatively, appellant argues that he
is entitled to be resentenced because the district court abused its discretion by denying his
motion for a downward dispositional departure. We affirm.
FACTS
In August 2015, appellant Rick Olsen robbed Premier Bank with a black airsoft gun
that closely resembled a real gun. He demanded money from two tellers and took $2,145
from the bank. Respondent State of Minnesota charged Olsen with first-degree aggravated
robbery in violation of Minn. Stat. § 609.245, subd. 1 (2014). At a plea hearing on October
17, 2016, the district court noted that it would consider a downward dispositional departure
at sentencing. The court emphasized that its willingness to consider a downward
dispositional departure did not mean that it would not impose “a guideline sentence, but it
does mean [that the court] will consider something other than a guideline sentence.” The
court also stated that it “would like to get a better read on [Olsen] rather than having to
make a snap decision today or a month from now ,” and the court set sentencing for six to
twelve months later.
Olsen pleaded guilty, and the court released him from custody with the requirements
that he attend treatment, meet with his sponsors from Narcotics Anonymous (NA), and
remain law-abiding. The district court set a review hearing for April 14, 2017. At the review
hearing, the court stated that it received “a good report on everythin g [Olsen was] doing”

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and told Olsen to “keep doing it, for all the right reasons, and make sure it never happens
again. But as I told your attorney, you have still got to deal with what happened on [August
7, 2015].”
The district court ordered a presentenc e investigation report (PSI) , which revealed
that Olsen completed a chemical -dependency assessment and was in remission from his
drug addiction. He periodically attended NA meetings, although he did not provide
verification of how often he attended. At Olsen’s sentencing hearing on August 25, 2017,
the court heard testimony from Olsen’s daughter regarding his progress in the past year.
Olsen’s therapist submitted a letter to the court, stating that Olsen had attended 23
individual sessions regarding his depression and anxiety and attended family therapy with
his daughter. Addressing Olsen, the court stated:
First of all, I can tell you, you stand before me changed from
what happened at the time you robbed the bank. No doubt
about it.

. . . .

And I want t o tell you you’ve worked really hard and you’ve
done a lot of good things since you’ve been charged.

. . . .

Comes down to, though, punishment. The thing that people
forget sometimes in the system is sentencing deals not only
with the ability to rehabilitate but to punish. And when you had
a gun in somebody’s face at a bank, it’s a prison sentence.
You’re going to come out of this okay. You’ve got your family
behind you, and every day will be long, but you’ll get out of
this, and you’ll be the man that you have become. But you can’t
put a gun, stick in somebody’s face, ask for money and not
think that you’re going to prison for that. To me that’s prison

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and society thinks that. There are certain things that can’t be
tolerated regardless of rehabilitation.

The court then sentenced Olsen to a guidelines sentence of 48 months in prison.
This appeal follows.
D E C I S I O N
Guilty Plea
Olsen argues that he must be permitted to withdraw his plea because his plea was
involuntary. Alternatively, he argues that this court should vacate his sentence and remand
to the district court for resentencing on the basis that he is p articularly amenable to
probation.
“At any time the court must allow a defendant to withdraw a guilty plea upon a
timely motion and proof to the satisfaction of the court that withdrawal is necessary to
correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. “A manifest injustice exists
if a guilty plea is not valid. ” State v. Raleigh , 778 N.W.2d 90, 94 (Minn. 2010). “To be
valid, a guilty plea must be accurate, voluntary, and intelligent.” Id. Whether a plea is valid
is a legal question we review de novo. Id.
“To be voluntary, a guilty plea may not be based on any improper pressures or
inducements.” State v. Dikken, 896 N.W.2d 873, 876–77 (Minn. 2017) (quotation omitted).
“[A] plea is involuntary when it is induced by coercive or deceptive action .” Id. at 877. A
plea also is involuntary when it “rests in any significant degree on a promise or agreement”
that goes unfulfilled. James v. State , 699 N.W.2d 723, 728 (Minn. 2005). If a promise
within a plea agreement is not fulfilled, “ the voluntariness of the plea is drawn into

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question.” State v. Wukawitz , 662 N.W.2d 517, 526 (Minn. 2003). “Whether a plea is
voluntary is determined by considering all relevant circumstances.” Raleigh, 778 N.W.2d
at 96.
Olsen argues that his guilty plea was “induced by the unfulfilled and illusory
promise that the district court would consider a dispositional departure,” because the court
never considered a downward departure. But under the plea agreement, the court approved
a “slow sentencing ” and set a review hearing for six to twelve months later. The court
stated that it would consider a downward departure after getting “a better read on [Olsen]
rather than having to make a snap decision.” The court conducted a review hearing on April
14, 2017, to review Olsen’s progress.
At the sentencing hearing on August 25, 2017, the district court recognized Olsen’s
progress in the community through his involvement in treatment and counseling but found
that his progress did not mitigate the seriousness of his offense. The record shows that the
court considered Olsen’s motion for a downward departure. We conclude that Olsen’s plea
was voluntary and valid and not induced by an unfulfilled promise.
Downward Dispositional Departure
“District courts are most often in the best position to evaluate whether a sentencing
departure is appropriate based on their unique perspective on all stages of a case.” State v.
Stempfley, 900 N.W.2d 412, 420 (Minn. 2017) (quotation omitted) . “[Appellate courts]
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 and footnote omitted). “ The Minnesota Sentencing

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Guidelines, however, limit the sentencing court’s discretion by prescribing a sentence or
range of sentences that is presumed to be appropriate. ” Id. at 308 (citing Minn. Sent.
Guidelines 2.D.1.) (quotation marks omitted). “A sentencing court m ust 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. (quotation omitted). “Accordingly, a sentencing court can
exercise its discretion to depart from the guidelines only if aggravating or mitigating
circumstances are present.” Id. (quotation omitted). The aggravating or mitigating
circumstances must provide a substantial and compelling reason not to impose a guidelines
sentence. Id. “[Appellate courts] have express statutory authority to review the sentence
imposed or stayed to determine whether the sentence is inconsistent with statutory
requirements, unreasonable, inappropriate, excess ive, unjustifiably disparate, or not
warranted by the findings of fact issued by the district court.” Id. at 312 (citing Minn. Stat.
§ 244.11, subd. 2(b) (2012)) (quotation marks omitted).
The district court departs dispositionally if it “orders a disposition other than that
recommended in the Guidelines.” Minn. Sent. Guidelines 1.B.5.a. (2017). “[A] defendant’s
particular amenability to individualized treatment in a probationary setting will justify
departure in the form of a stay of execution of a presumptively executed sentence.” Soto,
855 N.W.2d at 308 (quotation omitted). But a district court is not required to depart from
the guidelines even when it finds that a defendant is particularly amenable to probation.
See State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (noting that even when substantial and
compelling circumstances exist, the district court “may” depart); State v. Olson , 765

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N.W.2d 662, 664–65 (Minn. App. 2009) ( stating that “the district court has discretion to
impose a downward dispositional departure if a defendant is particularly amenable to
probation, but it is not required to do so”).
Olsen argues that the district court abused its discretion by failing to find that
Olsen’s particular amenability to probation warranted departure, and by failing to consider
circumstances for and against departure.
Particular Amenability to Probation
When determining if a defendant is particularly amenable to probati on, relevant
factors to consider include “the defendant’s age, his prior record, his remorse, his
cooperation, his attitude while in court, and the support of friends and/or family.” Soto, 855
N.W.2d at 310 (citing State v. Trog, 323 N.W.2d 28, 31 (Minn. 1 982)) (quotation marks
omitted). Olsen argues that he is particularly amenable to probation. He argues that his
bank robbery was his first felony offense; he had not been revoked on probation in the past;
he “took accountability by acknowledging at the plea hearing that he entered the bank,
brandished an article that resembled a dangerous weapon at the tellers, and took the
money”; he cooperated by pleading guilty; his “attitude in court would favor a dispositional
departure”; he had significant familial support; and he successfully completed treatment
before sentencing.
But Olsen’s PSI reported that he continues to avoid responsibility for his offense
and may be attempting to manipulate the system to delay sentencing. Additionally, while
a chemical-dependency assessment in November of 2016 indicated that Olsen attended NA
three to four times a week, Olsen provided n o verification of his NA attendance , and a

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collateral report stated that he attended NA only one to two times a week. Aside from a
letter from Olsen’s therapist describing his participation in NA and his therapy sessions,
Olsen submitted no further substantiation of his NA attendance, treatment progress,
recovery plans, or community programming.
At Olsen’s review and sentencing hearings, the district court acknowledged Olsen’s
progress in the community . See Jackson v. State , 329 N.W.2d 66, 67 (Minn. 1983)
(considering the defendant’s experience with treatment when reviewing a dispositional
departure). But “the mere fact that a mitigating factor i s present in a particular case does
not obligate the court to place defendant on probation or impose a shorter term than the
presumptive term.” State v. Pegel, 795 N.W.2d 251, 253–54 (Minn. App. 2011) (quotation
omitted); see also Kindem, 313 N.W.2d at 7 (“[T]he Guidelines state that when substantial
and compelling circumstances are present, the judge may depart. This means that t he
[district] court has broad discretion and that we generally will not interfere with the
exercise of that discretion. ” (quotation omitted)) . Here, the court ultimately found at
sentencing that Olsen’s progress and success in therapy were not enough to overcome the
need for punishment. The court stated that although Olsen had made progress, “sentencing
deals not only with the ability to rehabilitate but to punish.” Based on the record, we
conclude that the district court did not abuse its discretion when it denied Olsen’s motion
for a downward dispositional departure.
Circumstances For and Against Departure
“If the district court has discretion to depart from a presumptive sentence, it must
exercise that discretion by deliberately considering circumstances for and against

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departure.” State v. Mendoza , 638 N.W.2d 480, 48 3 (Minn. App. 2002), review denied
(Minn. Apr. 16, 2002). By considering these factors, a district court “will avoid sentencing
that is either mechanical or callous.” State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App.
1984).
Olsen argues that the district court did not properly consider all the factors for and
against departure in connection with his departure motion. We disagree. A district court is
not required to consider all of the Trog factors before imposing a presumptive sentence.
Pegel, 795 N.W.2d at 254 . Here, t he record reflects that the district court properly
considered reasons for and against departure. We therefore conclude that the district court
did not abuse its broad discretion when it denied Olsen’s request for a downward departure.
Affirmed.