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This opinion will be unpublished and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
A18-0129

State of Minnesota,
Respondent,

vs.

Emmanuel Jentzen,
Appellant.

Filed November 26, 2018
Affirmed
Schellhas, Judge

Hennepin County District Court
File No. 27-CR-15-32126

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Schellhas, Judge; and
Randall, 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 challenges the district court’s denial of his motion for a downward
dispositional and, alternatively, durational sentencing departure. We affirm.
FACTS
Early in the morning of November 8, 2015, Brooklyn Park Police officers found
appellant Emmanuel Jentzen asleep in the driver’s seat of his still-running car, parked
crookedly and blocking traffic. The officers performed two field sobriety tests, and, afte r
Jentzen failed both, they arrested him for driving while intoxicated (DWI). At the police
station, an officer read Jentzen the implied-consent advisory, afforded him time to contact
an attorney, and asked him to submit to a breath test. Jentzen refused. Respondent State of
Minnesota charged Jentzen with first-degree DWI test refusal and first-degree DWI driving
under the influence.1
Jentzen pleaded guilty to first -degree DWI test refusal and the court dismissed the
other DWI charge. Jentzen moved for a downward dispositional and, in the alternative, a
downward durational sentencing departure, citing his “minimal ” criminal history, history
as a torture victim in Liberia , amenabil ity to probation, and arguing t hat his offense
involved less-serious conduct th an a typical DWI test-refusal offense. The district court
denied Jentzen any d ownward sentencing departure and sentenced him to 46 months’

1 The state charged Jentzen with first -degree DWI due to his prior first -degree DW I
convictions in 2005 and 2007. See Minn. Stat. § 169A.24, subd. 1(2) (2014) (“A person
who violates section 169A.20 ([DWI]) is guilty of first-degree [DWI] if the person . . . has
previously been convicted of a felony under this section.”)
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imprisonment, a bottom -of-the-box presumptive sentence, b ased on Jentzen’s criminal -
history score of three.
This appeal follows.
D E C I S I O N
Jentzen argues that the district court abused its discretion by denying his motion for
a downward sentencing departure . District courts have “broad discretion” in sentencing
decisions, and this court affords “great discretion in the imposition of sentences and cannot
substitute [its] judgment for that of the district court.” State v. Vang, 847 N.W.2d 248, 264
(Minn. 2014) (quotation omitted ). We therefore review a district court’s sente ncing
decision for an abuse of discretion and “generally will not interfere with a sentencing
court’s decision to impose a term within the presumptive sentenc e range.” State v.
Kangbateh, 868 N.W.2d 10, 14 (Minn. 2015). Reversal of a district court’s refusal to depart
from a presumptive sentence should occur only in a “rare case.” State v. Kindem , 313
N.W.2d 6, 7 (Minn. 1981).
“The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses,” seeking to “maintain uniformity, proporti onality, rationality, and predictability
in sentencing of felony crimes.” State v. Solberg , 882 N.W.2d 618, 623 (Minn. 2016)
(quotation omitted). District courts therefore do not depart from the guidelines unless
“there are identifiable, substantial, and c ompelling circumstances to support a departure.”
Id. (quotation omitted). “Consequently, departures from the guidelines are discouraged and
are intended to apply to a small number of cases,” id., that “overcome the presumption in
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favor of the guidelines se ntence.” State v. Soto , 855 N.W.2d 303, 308 (Minn. 2014)
(quotation omitted).
Jentzen argues that the district court abused its discretion in denying his motion for
a downward dispositional and, alternatively, durational sentencing departure because
substantial and compelling reasons support a departure. We disagree.
Downward dispositional sentencing departure
“A dispositional departure typically focuses on characteristics of the defendant that
show whether the defendant is particularly suitable for individualized treatment in a
probationary setting.” Solberg, 882 N.W.2d at 623 (quotation omitted); see also State v.
Trog, 323 N.W.2d 28, 31 (Minn. 1982) (considering defendant’s age, prior record, remorse,
cooperation, attitude while in cour t, and support of friends and family as relevant factors
for dispositional departure).
Jentzen argues that his “personal history as a victim of torture and his particular
amenability to probation and treatment established substantial and compelling
circumstances to justify a departure,” and he cites his recent treatment with the Center for
Victims of Torture , completion of chemical -dependency t reatment, “minimal” criminal
history, and acceptance of responsibility.2 The district court denied Jentzen’s motion for a
downward dispositional sentencing departure, stating:
I’m glad that you’ve been able to take advantage of . . . the
Center [for Victims of Torture] . . . I’m not going to be able to
keep you from the commitment because of the – this being the

2 Jentzen also cites his unamenability to prison, but he raises this argument for the first time
on appeal, and we therefore do not consider it. See Andersen v. State, 913 N.W.2d 417, 428
n.11 (Minn. 2018) (refusing to consider issue raised for first time on appeal).
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third felony conviction . . . the sixth driving while impaired
[offense]. . . . I am willing to go to the lowest end of the box,
but I don’t think that there are enough indicators that you are
particularly amenable to merit probation. I don’t think that the
whole accumulation of your past is enough to outweigh the
time period that I’ve had the chance to look at your life.

The record supports the district court’s determination that Jentzen is not particularly
amenable to probation. Jentzen’s pre -plea investigation report, which recommends the
presumptive sentence, reports that Jentzen was diagnosed with post-traumatic stress
disorder in 2007; his failure to seek treatment caused the revocation of his probation ; he
previously received a referral to the Center for Victims of Torture and failed to avail
himself of the center’s services; and he was referred to “at least five chemical dependency
treatment programs.” The report states that Jentzen provided probation officers with
“conflicting accounts of his alcohol use, seeming to vary his reports based on the need and
wants met at the time,” such that “the true depth of his addiction cannot be known.” See
State v. Loitz, 366 N.W.2d 744, 747 (Minn. App. 1985) (stating that “history of chemical
abuse and disregard for its effects is a valid factor to consider ” when sentencing), review
denied (Minn. July 17, 1985).
Jentzen’s circumstances do not present a “rare case” for reversal of a district court’s
denial of departure from the presumptive sentence. We conclude that the district court did
not abuse its broad discretion by denying Jentzen’s motion for a downward dispositional
departure.

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Downward durational sentencing departure
Jentzen argues that the district court abused its discretion in denying his alternative
request for a downward durational sentencing departure because his offense consisted of
less-serious conduct than a typical DWI test-refusal offense. Police found Jentzen sleeping
in a car parked crooked ly with the engine running, and blocking traffic. Jentzen’s
conviction mandated a minimum prison sentence of three years. See Minn. Stat.
§ 169A.276, subd. 1(a) (2014) (providing three-year mandatory minimum sentence).
“[A] durational departure is a sentence that departs in length from the presumptive
guidelines range.” Solberg, 882 N.W.2d at 623 . When deciding whether to grant a
durational departure, a district court may only rely on factors bearing on the severity of the
offense, and “not the characteristics of the offender.” Id. Only “significantly less serious
[conduct] than that typically involved in the commission of the offense” justifies a
durational departure. Id. at 624. The district court denied Jentzen’s motion, stating: “I don’t
think that this [offense] was less onerous, so I don’t think there’s enough to durationally
depart.” We agree with the district court that J entzen failed to show how his test-refusal
offense consisted of “significantly less serious” conduct than a typical test-refusal offense.
The district court therefore did not abuse its broad discretion in denying his motion for a
downward durational sentencing departure. See id. at 627 (affirming denial of dow nward
durational departure where offender ’s conduct was not significantly less serious than
typical offense conduct).
Affirmed.