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This opinion will be unpublished and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
A18-0128

State of Minnesota,
Respondent,

vs

Phillip Julius Butenhoff, Jr.,
Appellant.

Filed November 26, 2018
Affirmed
Johnson, Judge

St. Louis County District Court
File No. 69DU-CR-17-33

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

Mark S. Rubin, St. Louis County Attorney, Rebekka L. Stumme, Assistant County
Attorney, Duluth, Minnesota (for respondent)

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

Considered and decided by Rodenberg, Presiding Judge; Connolly, Judge; and
Johnson, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Phillip Julius Butenhoff Jr. pleaded guilty to one count of first-degree burglary and
two counts of threats of violence. Before sentencing, he moved for a downward departure.

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The district court denied the motion and imposed concurrent, executed sentences on all
three counts. We conclude that the district court did not abuse its discretion by denying
Butenhoff’s departure motion. We also conclude that Butenhoff’s attorney did not provide
ineffective assistance of counsel at sentencing. Therefore, we affirm.
FACTS
In the earl y morning hours of January 1, 2017, Butenhoff broke into a home in
Duluth. The two women who resided there awoke to find Butenhoff, whom they did not
know, setting items by the front door, presumably intending to steal them. Butenhoff held
the women in t heir home by leading them to believe that he had a firearm in his jacket,
even though he did not. The women were able to escape after approximately an hour and
called the police. After the women escaped, Butenhoff walked to a friend’s nearby house,
where five persons were present. Four of those persons barricaded themselves inside a
bedroom after Butenhoff threatened to shoot them . Butenhoff was under the influence of
marijuana, speed, and alcohol while at both homes.
In January 2017 , t he state charged Butenhoff with one count of first-degree
burglary, in violation of Minn. Stat. § 609.582, subd. 1(b) (2016); five counts of threats of
violence, in violation of Minn. Stat. § 609.713, subd. 1 (2016); and one count of false
imprisonment, in violation of Minn. Stat. § 609.255, subd. 2 (2016).
In April 2017, Butenhoff requested a screening by the district court’s mental-health
division. A staff person for the mental-health court determined that he wa s eligible for
admission to the mental-health court, subject to the district court’s approval.

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In July 2017 , Butenhoff and the state entered into a plea agreement . Butenhoff
pleaded guilty to the burglary charge and two threats-of-violence charges. The state
dismissed the remaining charges and withdrew its request for an aggravated sentence.
Before sentencing, Butenhoff moved for a downward dispositional departure and a
downward durational departure. In a memorandum accompanying the motion, Butenhoff
argued that he is particularly amenable to probation. At the sentencing hearing in October
2017, the district court stated that it had reviewed the motion papers, the pre-sentence
investigation (PSI), a letter of support from Butenhoff’s social worker, a victim -impact
statement, a letter from Butenhoff, and the notice of Butenhoff’s preliminary acceptance
to mental -health court. The district court denied Butenhoff’s request for a downward
dispositional departure on the ground that he is not particularly amenable to probation and,
thus, there are not substantial a nd compelling reasons to depart from the presumptive
sentences. The district court imposed concurrent, executed sentences of 100 months of
imprisonment on the burglary charge, 18 months of imprisonment on the first threats-of-
violence charge, and 21 months of imprisonment on the second threats-of-violence charge.
Butenhoff appeals.
D E C I S I O N
I. Motion for a Downward Dispositional Departure
Butenhoff argues that the district court erred by denying his motion for a downward
dispositional departure.
The Minnesota Sentencing Guidelines generally provide for presumptive sentences
for felony offense s. Minn. Sent. Guidelines 2.C (2016 ). For any particular offense, t he

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presumptive sentence is “presumed to be appropriate for all typical cases sharing criminal
history and offense severity characteristics.” Min n. 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. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). “Substantial and compelling circumstances are
those demonstrating that the defendant’s conduct in the offense of conviction was
significantly 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) (quotation s
omitted).
The guidelines also provide non -exclusive list s of mitigating and aggravating
factors that may justify a departure. Minn. Sent. Guidelines 2.D.3 (20 16). If a defendant
requests a downward dispositional departure, the district court must “deliberately
consider[] circumstances for and against departure .” State v. Mendoza, 638 N.W.2d 480,
483 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002). If a district court departs
from the presumptive sentence, the district court is required to state the reason or reasons
for the departure. Minn. Sent. Guidelines 2.D.1.c (2016). But if the district court does not
depart, the district court is not required to state reasons for imposing a presumptive
sentence. State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013), review denied (Minn.
Sept. 17, 2013); State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985). “[T]he mere
fact that a mitigating factor is present . . . does not obligate the court to place defendant on

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probation.” State v. Pegel , 795 N.W.2d 251, 253 -54 (Minn. App. 2011) (quotation
omitted).
This court generally applies an abuse-of-discretion standard of review to a district
court’s denial of a defendant’s motion for a downward dispositional departure. Id. at 253;
see also State v. Bertsch , 707 N.W.2d 660, 668 (Minn . 2006). Only a “rare case” will
warrant reversal of a district court’s refusal to depart from the sentencing guidelines.
Kindem, 313 N.W.2d at 7; see also State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
In this case, Butenhoff’s motion for a downward dispositional departure was based
on the seventh mitigating factor mention ed in the sentencing guidelines: “particular
amenability to probation.” See Minn. Sent. Guidelines 2.D.3.a.7 (2016 ). In determining
whether a defendant is particular ly amenable to probation so as to justify a downward
dispositional departure, a district court may consider, among other things, “the defendant’s
age, his prior record, his remorse, his cooperation, his attitude while in court, and the
support of friends a nd/or family.” State v. Trog , 323 N.W.2d 28, 31 (Minn. 1982). If a
district court denies a defendant’s motion for a downward dispositional departure, the
district court need not discuss all of the Trog factors. Pegel, 795 N.W.2d at 254.
The district court stated reasons on the record for its decision to deny Butenhoff’s
motion for a downward dispositional departure. The district court expressed concern about
Butenhoff’s “chemical use issue,” and “mental health issues.” The district court also stated
that the author of the PSI (the same person who deemed Butenhoff eligible for mental -
health court) “outlined in his PSI that Mr. Butenhoff is just, frankly, not amenable.”
Butenhoff did not challenge the accuracy of the PSI. We have reviewed the PSI (which is

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a confidential document) , and we have determined that it support s the district court’s
reasoning.
Butenhoff contends that the district court abused its discretion because its decision
is against logic and the facts in the record. Butenhoff contends that a downward
dispositional departure is appropriate for several reasons, including his preliminary
acceptance into mental -health court, a letter of support from a social worker, and his
respectful and remorseful attitude throughout court proceedings. Even if Butenhoff has
identified reasons that might have supported a downward dispositional departure, he has
not demonstrated that such a departure is the only reasonable sentence. There were ample
facts in the record to support the district court’s finding that Butenhoff is not particularly
amenable to probation.
Butenhoff also contends that the district court erred by not considering ot her
possible reasons for a downward dispositional departure, such as his mental -health
condition. He asserts that his mental -health condition could be a basis for departing
downward based on the third mitigating factor listed in the guidelines, which allo ws a
downward departure if “[t]he offender, because of physical or mental impairment, lacked
substantial capacity for judgment when the offense was committed.” Minn. Sent.
Guidelines 2.D.3.a.3 (2016). The district court likely did not refer to that mitigating factor
because Butenhoff did not cite it in his motion papers, which asserted only that he is
particularly amenable to probation. Butenhoff has not cited any authority for the
proposition that a district court must consider mitigating factors not argued by a defendant,
and we are not aware of any such authority.

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Thus, the district court did not abuse its discretion by denying Butenhoff’s motion
for a downward dispositional departure on the ground that he is not particularly amenable
to probation.
II. Assistance of Counsel
Butenhoff also argues that his attorney in district court proceedings provided him
with ineffective assistance of counsel in connection with sentencing.
“In all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI; see also Minn. Const. art.
I, § 6. This right is the “right to the effective assistance of counsel.” Strickland v.
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984) (quotation omitted). To
prevail on an in effective-assistance-of-counsel claim, a defendant mu st satisfy two
requirements:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. If a defendant claims that his attorney was ineffective in
representing him at sentenci ng, the defendant must prove that there is a reasonable
probability that the sentence would have been different but for counsel’s deficient
performance. See id. at 694, 104 S. Ct. at 2068; Scruggs v. State, 484 N.W.2d 21, 25 (Minn.

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1992). If one of the Strickland requirements is not satisfied, a court need not consider the
other requirement. See State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017).
Generally, an ineffective-assistance-of-counsel claim is raised in a petition for
postconviction relief. State v. Gustafson , 610 N.W.2d 314, 321 (Minn. 2000); State v.
Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017). But an ineffectiveness claim may
be raised on direct appeal if the relevant facts are sufficiently developed in the record. See
Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). In th is case, Butenhoff seeks review
of his claim on direct appeal, and the record is sufficiently developed to allow for a
determination of the claim.
Butenhoff contends that his attorney’s performance was deficient because the
attorney did not further investigate Butenhoff’s mental illne ss, did not present additional
evidence about his mental illness, and did not seek a downward dispositional departure on
that particular basis. As stated above, Butenhoff was screened by the mental-health court
and was conditionally deemed eligible for admission, subject to the district court’s
approval. Butenhoff’s attorney sought a departure based solely on Butenhoff’s particular
amenability to probation. His attorney apparently believed that particular amenability to
probation was a better argument and elected to make a focused argument based on that sole
ground. Such a decision is a classic example of the type of strategic or tactical decision
that an attorney may make without falli ng below the constitutionally minimal level of
performance. See State v. Mems, 708 N.W.2d 526, 534 (Minn. 2006); see also Wiggins v.
Smith, 539 U.S. 510, 533, 123 S. Ct. 2527, 2541 (2003). But Butenhoff’s attorney did not
ignore the issue of mental healt h. The memorandum he filed in support of the departure

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motion referred to Butenhoff’s eligibility for mental -health court and asserted that he
“would be a perfect candidate for such a program.” At the sentencing hearing, the attorney
referred to Butenhoff’s mental health and argued that mental-health court was necessary to
allow Butenhoff to receive proper treatment. In addition, the district court was well aware
of Butenhoff’s struggles with mental illness, acknowledging that they were “clear as day.”
This part of the record indicates that Butenhoff’s attorney would have been reasonable in
deciding that it was unnecessary to further investigate Butenhoff’s mental health, develop
additional evidence on that topic, and make an additional argument for a de parture. For
these reasons, we cannot conclude that the attorney’s performance was deficient. See
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
In addition, it does not appear that there is a reasonable probability that further
investigating Butenhoff’s mental health, developing additional evidence on that topic, and
making an additional argument for a departure would have led to a different result.
Butenhoff does not describe in sufficient detail the additional evidence that his attorney
would have elicited if he had investigated further. Without such information, we cannot
conclude that an additional argument for a departure would have been successful. A district
court may order a downward dispositional departure based on a mental impairment only if
the mental impairment is “extreme” and only if the defendant’s mental condition deprived
him of control over his actions. State v. Lee, 491 N.W.2d 895, 902 (Minn. 1992). Given
the present record, we cannot c onclude that the alleged deficiencies in Butenhoff’s
attorney’s performance prejudiced Butenhoff’s interests at sentencing. See Strickland, 466
U.S. at 687, 104 S. Ct. at 2064.

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Butenhoff also contends that his attorney was ineffective because he did not object
to the district court’s statement during the sentencing hearing that it could not order a
downward dispositional departure without finding that Butenhoff is amenable to probation.
Butenhoff contends that the district court’s statement is a misstatem ent of law. It appears
that the district court was not making a broad statement of generally applicable law but,
rather, was making a statement about the issue presented in this particular case, in which
Butenhoff’s argument focused solely on his asserted particular amenability to probation.
Butenhoff’s attorney likely did not object because he understood the statement to have that
meaning. In addition, an attorney does not have an obligation to object when a district
court is pronouncing a sentence. Furthermore, it is unlikely that an objection would have
led to a different result. Thus, Butenhoff has not demonstrated that his attorney engaged
in constitutionally ineffective assistance by not objecting to the district court’s statement.
In sum, Butenhoff is not entitled to a new sentencing hearing on the ground that he
received constitutionally ineffective assistance of counsel.
Affirmed.