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This opinion will be unpublished and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
A18-0243

State of Minnesota,
Respondent,

vs.

Joshua Lee Gosch,
Appellant.

Filed November 26, 2018
Affirmed
Reilly, Judge

Douglas County District Court
File No. 21-CR-17-1057

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

Chad Larson, Douglas County Attorney, Ezra P. Hartsell, Assistant Douglas County
Attorney, Alexandria, Minnesota (for respondent)

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

Considered and decided by Jesson, Presiding Judge; Reilly, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Joshua Lee Gosch challenges the district court’s sentencing decision
arising from his conviction of first-degree refusal to submit to a chemical test in violation

2
of Minn. Stat. § 169A.20, subd. 2 (2016). The district court declined to grant a downward
dispositional departure and sentenced appellant to the presumptive sentence under the
Minnesota Sentencing Guidelines. Because the district court did not abu se its discretion
in sentencing appellant to the presumptive guideline sentence, we affirm.
D E C I S I O N
The Minnesota Sentencing Guidelines promote uniformity, proportionality, and
predictability in sentencing. See Minn. Stat. § 244.09, subd. 5(2) (2016). A district court
must impose a presumptive sentence unless “identifiable, substantial, and compelling
circumstances” justify a departure. Minn. Sent. Guidelines 2.D.1 (2016). “Substantial and
compelling circumstances are those circumstances that make the f acts of a particular case
different from a typical case.” State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985). The
decision whether to depart from the Sentencing Guidelines rests within the discretion of
the trial court and will not be disturbed absent a clear abuse of that discretion. See State v.
Hicks, 864 N.W.2d 153, 156 (Minn. 2005); State v. Pegel , 795 N.W.2d 251, 253 (Minn.
App. 2011).
At sentencing appellant’s attorney argued for a downward dispositional departure
based upon: (1) appellant’s particular amenability to probation; (2) appellant’s acceptance
into the Minnesota Adult and Teen Challenge program ; and (3) the benefits of attending
treatment in lieu of a prison sentence. The presentence investigation (PSI) report, prepared
by probation, detailed appellant’s criminal record, which includes eleven misdemeanor or
gross misdemeanor convictions and five felony convictions . According to the PSI,
appellant has been in chemical dependency treatment on several occasions, including at the

3
Northwest Regional Juvenile Center in 2004, an outpatient chemical dependency treatment
program in 2005, the Minnesota Adult and Teen Challenge program in April 2014, and the
TRIAD program at the Minnesota Correctional Facility in Saint Cloud in 2015 . The PSI
author did not support appellant attending the Minnesota Adult and Teen Challenge
program in lieu of a prison sentence , and recommended the district court impose a 72-
month sentence instead of the 62 months, the low end of the guideline range, called for in
the plea agreement. After careful consideration, t he district court denied appellant’s
downward dispositional departure motion, and imposed a 62-month prison sentence.
Appellant argues that the district court abuse d its discretion by sentencing him to
the presumptive sentence because he is particularly amenable to probation. A district court
may grant a downward dispositional departure if a defendant is “particularly amenable to
probation.” State v. Soto , 855 N.W.2d 303, 309 (Minn . 2014). A court may consider a
defendant’s age, prior record, remorse, cooperation, attitude in court, and the support of
friends and family in determining whether he is particularly amenable to probation. State
v. Trog, 323 N.W.2d 28, 31 (Minn. 1982 ). However, a district court is not required to
depart even when it finds that a defendant is particularly amenable to probation. State v.
Olson, 765 N.W.2d 662, 664-65 (Minn. App. 2009) (“[T]he district court has discretion to
impose a downward dispositiona l departure if a defendant is particularly amenable to
probation, but it is not required to do so.”). Our review of a district court’s decision whether
to impose a sentencing departure is “extremely deferential.” Dillon v. State, 781 N.W.2d
588, 596 (Min n. App. 2010), review denied (Minn. July 20, 2010). We will reverse a

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district court’s refusal to depart only in a “rare” case. State v. Walker, 913 N.W.2d 463,
468 (Minn. App. 2018).
Here, t he district court judge thoroughly weighed the re asons for and against
departure. The district court balanced appellant’s strong work ethic and commitment to
his family with the “high-risk factors present. ” The high-risk factors included, in part,
appellant’s prior exposure to multiple rehabilitation programs , his numerous alcohol
related offenses, 1 and the fact that a ppellant committed the current offense while on
supervised release. In the end, the district court found that appellant was not particularly
amenable to probation due to appellant’s “extremely high” risk of re-offense.
The record shows that the district court reviewed the factors for and against a
downward dispositional departure and determined that a departure was not warranted.
Because we discern no abuse of discretion in the sentencing court’s deter mination, we
affirm.
Affirmed.

1 Appellant argues that the district court erred in its finding that this was appellant’s “fifth
alcohol-related conviction as an adult” because appellant’s 2005 DWI was committed
when appellant was 17. Although appellant was 17 when he committed the 2005 DWI,
pursuant to Minn. Stat. § 260B.225, subd. 3 , it is considered an adult conviction. (“[A]
child who commits an adult court traffic offense and at the time of the offense was at least
16 years old shall be subject to the laws and court procedures controlling adult traffic
violators and shall not be under the jurisdiction of the juvenile court.”).