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This opinion will be unpublished and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
A17-2063

State of Minnesota,
Respondent,

vs.

Mitchell John Antil,
Appellant.

Filed January 22, 2019
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-16-26429

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook , Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Tracy M.
Smith, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Mitchell John Antil pleaded guilty to first-degree assault after admitting that he shot
his girlfriend with a shotgun in the garage of the home that they shared. The district court

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imposed a sentence that is an upward durational departure from the presumptive guidelines
sentence. We conclude that the district court did not err by imposing an upward durational
departure and, therefore, affirm.
FACTS
On the evening of October 5, 2016, law-enforcement officers responded to two calls
concerning an incident at a home in the city of Maple Grove. One of the calls was from a
man inside the home who identified himself as “Mitch” and later was identified as Antil.
He told the 911 dispatcher that he had shot a woman twice. In addition, a neighbor reported
hearing gunshots and seeing a woman on the fr ont lawn, bleeding from her head. The
woman, J.J., said to the neighbor, “Mitch shot me.” After officers arrived, Antil admitted
to them that J.J. had left the house to smoke a cigarette outdoors, that he locked the door to
prevent her from reentering, and that he shot her after she attempted to reenter the house
through the attached garage. Antil told officers that he knew what he was doing and that
he wanted to kill her.
Two days later, t he state charged Antil with attempted second -degree murder, in
violation of Minn. Stat. § 609.19, subd. 1(1) (2016). In February 2017, the state moved for
a bifurcated trial based on its intent to prove five aggravating factors justifying an upward
durational departure, including particular cruelty and psychological trauma. In April 2017,
the district court granted the state’s motion.
One week later, the state and Antil entered into a plea agreement. The state agreed
to amend the sole charge to allege first-degree assault, in violation of Minn. Stat. § 609.221,
subd. 1 (2016). Antil agreed to waive his right to a jury trial with respect to the aggravating

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factors necessary for an upward durational departure. Based on a criminal-history score of
zero and a n offense -severity level of nine, the presumptive range under the sentencing
guidelines is 74 to 103 months of imprisonment. The parties agreed that the district court
would not impose a sentence greater than 206 months of imprisonment.
The district court held a sentencing hearing in June 2017. The state presented the
testimony of two medical professionals and J.J. The evidence showed that Antil shot J.J.
twice, once in her face and once in her right arm. The shotgun blast to her face was in
close proximity to her carotid artery, jugular veins, and airway, and caused her tongue to
protrude through a large wound. Dr. Dolan, the emergency-room physician, testified that
her jaw “was almost gone” when she arrived at the hospital. The shotgun blast to her right
arm struck her brachial artery, which caused a large wound to the medial aspect of the arm,
which resulted in a loss of approximately ten percent of her blood. Both physicians testified
that J.J.’s wounds created a high probability of death and required medical intervention and
that her injuries would cause permanent disfigurement and a permanent or protracted loss
of function of her jaw and arm. J.J. underwent more than 20 procedures, including at least
seven surgeries, in the first five weeks of her hospitalization . Dr. Kirshbaum, a physician
at the rehabilitation hospital where she was a patient for months afterward, testified that he
had “not seen anything worse” in his 32-year career.
In September 2017, the district court filed an order in which it concluded that the
state had established the aggravating factors of particular cruelty and substantial
psychological trauma. The district court imposed a sentence of 206 months of
imprisonment. Antil appeals.

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D E C I S I O N
Antil argues that the district court erred by imposing an upward durational departure
from the presumptive guidelines sentencing range.
The Minnesota Sent encing Guidelines specify presumptive sentence s for felony
offenses. Minn. Sent. Guidelines 2.C (2016). For any particular felony offense, t he
presumptive sentence is “presumed to be appropriate for all typical cases sharing criminal
history and offense severity characteristics.” Minn. Sent. Guidelines 1.B.13 (2016).
Accordingly, a district court “must pronounce a sentence . . . within the applicable
[presumptive] range unless there exist identifiable, substantial, and compelling
circumstances to support a departure.” Minn. Sent. Guidelines 2.D.1 (2016); see also State
v. Edwards , 774 N.W.2d 596, 601 (Minn. 2009). “Substantial and compelling
circumstances a re those demonstrating that the defendant’s conduct in the offense of
conviction was signifi cantly more or less serious than that typically involved in the
commission of the crime in question.” State v. Hicks, 864 N.W.2d 153, 157 (Minn. 2015)
(quotations omitted). The sentencing guidelines provide a non -exclusive list of
aggravating factors that may justify a departure. Minn. Sent. Guidelines 2.D.3.b (2016).
In general, this court applies an abuse -of-discretion standard of review to a district
court’s imposition of a sentence. State v. Soto , 855 N.W.2d 303, 307 -08 (Minn. 2014).
But a district court “has broad discretion to depart ” from the sentencing guidelines “only
if aggravating or mitigating circumstances are present; if aggravating or mitigating
circumstances are not present, the trial court has no discretion to depart.” State v. Best, 449
N.W.2d 426, 427 (Minn. 1989) (emphasis omitted). Accordingly, this court applies a de

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novo standard of review to the question whether a particular reason for an upward departure
is permissible. See Soto, 855 N.W.2d at 308 n.1; State v. Jackson, 749 N.W.2d 353, 357
(Minn. 2008); State v. Grampre, 766 N.W.2d 347, 350 (Minn. App. 2009), review denied
(Minn. Aug. 26, 2009). If the reason for the departure is per missible, we apply an abuse-
of-discretion standard of review to a district court’s decision to depart from the presumptive
sentence. State v. Robideau, 796 N.W.2d 147, 150 (Minn. 2011).
A. Psychological Trauma
Antil argues that the district court erred by concluding that substantial psychological
trauma is a valid reason for an upward durational departure in this case. Antil does not
argue that particular cruelty is not a valid reason for an upward durational departure. He
contends that reversal is nec essary because “it is not clear that the trial court would have
departed upward to 206 months if ‘particular cruelty’ were the only departure ground.”
Substantial psychological trauma is not included in the non -exclusive list of
aggravating factors in the Minnesota Sentencing Guidelines. See Minn. Sent. Guidelines
2.D.3.b (2016). But the appellate courts have recognized that it may be a valid reason for
an upward durational departure. See, e.g., State v. Ford , 539 N.W.2d 214, 230 (Minn.
1995); State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992), review denied (Minn. Apr.
13, 1992); State v. Bingham, 406 N.W.2d 567, 570 (Minn. App. 1987).
In this case, t he district court made four pages of factual findings related to
aggravating factors. With respect to the state’s allegation that J.J. suffered substantial
psychological trauma as a result of the assault, the district court concluded that t he state

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had “proved beyond a reasonable d oubt that J.J. suffered substantial psychological injury
as a result of the assault.”
Antil contends that the district court’s findings and conclusions are not supported
by the record . Specifically, he contends that J.J.’s psychological injuries are not
sufficiently “severe.” See State v. Mortland, 399 N.W.2d 92, 95 (Minn. 1987). He asserts
that this case is like State v. B ranson, 529 N.W.2d 1 (Minn. App. 1995), review denied
(Minn. Apr. 18, 1995) , in which this court concluded that the victim’s psychological
injuries were not sufficiently severe because the record showed only that the victim was
“scared a lot” and worried that “someone is behind her.” Id. at 5.
The record in this case contains considerable evidence of the psychological impact
of Antil’s assault on J.J. Some of that evidence is direct evidence of her psychological
trauma, and some is circumstantial evidence of the extent of her injuries and the difficulties
associated with her treatment, recovery, and rehabilitation, which had not yet concluded at
the time of the sentencing hearing. Specifically, Dr. Dolan testified that J.J. suffered life-
threatening injuries that required “more than 20 medical procedures, including at least
seven surgeries.” J.J. testified that, at the time of sentencing, she was unable to eat solid
food because of the injuries to her face and jaw . She also testified that she was unable to
use her right arm to bathe or to tie her shoes without assistance and that she has difficulty
dressing herself. She testified that she wears a bandage over her face because it “is so
indented that it really looks really terrible.” J.J. was hospitalized for more than five months.
The district court is permitted to infer significant psychological trauma from the significant
consequences of her physical injuries. In addition, the record contains evidence

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specifically related to J.J.’s psychological trauma. Dr. Kirshbaum specifically testified that
J.J. was “withdrawn,” in “ shock,” “very sad,” and “often very tearful .” He testified that
J.J. avoided looking in the mirror and was visibly frustrated when she was unable to speak
because of the severity of the injuries to her face and jaw. He considered prescribing anti-
depressant medic ation but ultimately decided against it. J.J. herself described her
experience as being “like a nightmare.” She testified that she had not been able to return
to her job, which she “enjoyed a lot,” and that she has started psychotherapy. All of this
evidence is sufficient to support the district court’s findings and conclusions and to
establish, as a matter of law, that J.J. suffered severe psychological trauma that is
“significantly more . . . serious than that typically involved in the commission of the crime
in question.” See Hicks, 864 N.W.2d at 157.
Antil also contends that the district court improperly considered factors that are
incorporated into the elements of the offense. Specifically, he challenges the district
court’s application of t his court’s opinion in State v. Felix, 410 N.W.2d 398 (Minn. App.
1987), review denied (Minn. Sept. 29, 1987) , and, perhaps, Felix itself. In that case, the
defendant pleaded guilty to first -degree assault, and the district court imposed a double
upward durational departure. Id. at 399. The victim had suffered extensive trauma to her
head and face and suffered emotional trauma as a result of the assault. Id. at 399-400. On
appeal, the defendant argued that the district court erred by relying on certain factors that
were, by definition, present in any first-degree assault. Id. at 401. In affirming the district
court, this court reasoned that the assault “did not simply involve one of the factors defining
‘great bodily harm;’ it involved all of them.” Id. Antil’s contention is misplaced because

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the district court relied on Felix only with respect to its finding of particular cruelty, not
with respect to its finding of severe psychological trauma. As stated above, Antil does not
argue on appeal that the district court erred by finding particular cruelty. Accordingly, we
need not consider whether the district court erred in its application of Felix. In any event,
our analysis of the evidence supporting the upward departure is focused on J.J.’s
psychological trauma, not on her physical injuries, which are the facts relevant to the
elements of the offense.
Thus, substantial psychological trauma is a valid reason for an upward durational
departure from the presumptive guidelines range in this case.
B. Exaggeration of Criminality
Antil also argues that the district court erred on the ground that his 206 -month
sentence unfairly exaggerates the criminality of his offense.
Antil cites State v. Norris, 428 N.W.2d 61 (Minn. 1988), in support of this argument.
In that case, the supreme court considered “whether a sentence of life imprisonment plus
five consecutive terms of 60 months each unduly exaggerates the criminality of appellant’s
conduct.” Id. at 70. The district court in Norris imposed sentences within the presumptive
guidelines ranges. See id. Antil has not cited any caselaw applying Norris to an upward
durational departure.
As a general rule, an upward durational departure that is otherwise proper will not
be reversed so long as it is no more than “double the presumptive sentence length.” State
v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). In this case, the presumptive range is 74 to
103 months. Minn. Sent. Guidelines 4.A (2016). The parties agreed that the district court

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could impose a sentence of between 74 months and 206 months. The district court imposed
a sentence of 206 months, which is within the general rule of Evans. Antil urges us to
consider whether the general rule of Evans still is appropriate in light of his assertion that
the sentencing guidelines now provide for more-severe sentences than when the Evans
opinion was issued in 1981 . We decline to engage Antil’s argument because any
reconsideration of the Evans opinion must be undertaken, if at all, by the su preme court,
not this court. See State v. Ward, 580 N.W.2d 67, 74 (Minn. App. 1998) (stating that court
of appeals is “not in position to overturn established supreme court precedent”). We also
note that t he supreme court declined to address a similar argument 10 years ago. See
Jackson, 749 N.W.2d at 359-60.
Thus, the district court’s imposition of a double upward durational departure does
not exaggerate the criminality of Antil’s offense.
Before concluding, we note that Antil filed a pro se supplemental brief in which he
discusses the reasons why he assaulted J.J., the quality of his representation in the district
court, and the law -enforcement investigation, among other things. After carefully
reviewing his pro se brief, we conclude that it does not contain any grounds for reversal.
In sum, the district court did not err by sentencing Antil to 206 months of
imprisonment.
Affirmed.