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This opinion will be unpublished and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
A18-0336

State of Minnesota,
Respondent,

vs.

Michael Robert Adkins,
Appellant.

Filed June 18, 2018
Affirmed
Hooten, Judge

Anoka County District Court
File No. 02-CR-16-6003

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

Anthony C. Palumbo, Anoka County Attorney, Robert I. Yount, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Jill A. Brisbois, Minneapolis, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Ross, Judge; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant challenges his sentence for a domestic assault conviction. He argues that
the district court failed to exercise its discretion because it did not consider factors in favor
of a downward dispositional departure. We affirm.

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FACTS
In September 2016, police officers were called to an apartment in Blaine. On the
scene, the officers spoke with the female resident of the apartment who “was bleeding from
a gash on her forehead that appeared swollen and egg shaped.” She explained to the
officers that her boyfriend, appellant Michael Adkins, had punched her in the face, causing
her to lose consciousness. As a result, Adkins was charged with felony domestic assault
under Minn. Stat. § 609.2242, subd. 4 (2016) and third -degree assault under Minn. Stat.
§ 609.223, subd. 1 (2016).
Adkins pleaded guilty to felony domestic assault in October 2017 . Because of his
criminal history, the presumptive sentence for Adkins is 33 months with a range of 29 to
39 months. The pre -sentence investigation report recommended that the district court
sentence Adkins to 29 months in prison. The probation officer who perform ed the pre-
sentence investigation reasoned that Adkins is not amenable to community supervision
because of his criminal history and the fact that his last four felony offenses were
committed while under supervision in the community. The prosecutor also recommended
a 29-month sentence. She argued that a downward dispositional departure would not be
appropriate because Adkins is not amenable to probation and there is a risk that he will
revert to alcohol use—a recurring theme in his criminal history—and harm another person.
She also contended that Adkins’s age and criminal history cut in favor of a presumptive
sentence rather than a dispositional departure.
Adkins’s trial counsel asked the district court to place Adkins on probation. His
argument was supplemented by a memorandum prepared by Amy B. Butler, a dispositional

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advisor and mitigation specialist. The memorandum details Adkins’s difficult life and
recent efforts toward self -improvement, including attending therapy and maintaining
sobriety since December 31, 2016. It concludes that Adkins is “particularly amenable to
both treatment and probation” and that it would not be in society’s best interests to
incarcerate him.
The district court sentenced Adkins to 29 months in prison. This appeal follows.
D E C I S I O N
Adkins argues on appeal that the district court failed to exercise its discretion
because it did not consider the factors that favor a downward dispositional departure in his
case. Our caselaw is clear that a district court may not depart from a presumptive sentence
unless there are substantial and compelling circumstances justifying such a departure. State
v. Pegel, 795 N.W.2d 251, 253 (Minn. App. 2011). And the decision to depart from the
sentencing guidelines rests within the distri ct court’s discretion. Id. But if there are
“compelling circumstances for departure,” then they “should be deliberately considered.”
State v. Curtiss, 353 N.W.2d 262, 263, 264 (Minn. App. 1984). In fact, a district court errs
if it “put[s] aside arguments for departure rather than considering them alongside ‘valid
reasons’ for non -departure.” Id. at 264 (citation omitted). That is because s uch
“[c]onsideration of compelling circumstances is central to the scheme of the sentencing
guidelines, and the practice will avoid sentencing that is either mechanical or callous.” Id.
Adkins asserts that substantial and compelling circumstances are present in his case
because he is particularly amenable to probatio n. It is true that particular amenability to
probation is considered a substantial and compelling circumstance. See State v. Cameron,

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370 N.W.2d 486, 487 (Minn. App. 1985). So it follows that if a criminal defendant
demonstrates particular amenability t o probation, a district court must consider that
amenability when deciding whether to depart from the sentencing guidelines.
The question thus becomes: did the district court consider whether Adkins is
particularly amenable to probation? Minnesota courts look to several factors in deciding
whether a defendant is particularly amenable to probation, including: age, prior record,
remorse, cooperation, attitude in court, and support of friends or family. State v. Trog, 323
N.W.2d 28, 31 (Minn. 1982). Adkins specifically argues that the “remorse” and “support
of family and friends” factors are present in his case. With respect to remorse, he points to
the fact that he took responsibility for the crime at the plea hearing, that he did not minimize
his role in the offense during the pre-sentence investigation, and that he expressed remorse
both in his letter to the court and in his allocution at sentencing. With regard to the support
factor, he cites to a number of letters of support from family members, a fri end, his
employer, his therapists, and his daughter’s guardian ad litem. Adkins also more generally
argues that he is particularly suitable to individualized treatment in a probation setting
because he has already “made remarkable strides towards addressi ng the issues that
underlie his violent behavior” by attending counseling, maintaining sobriety, and being
employed. We must determine whether the district court considered these factors.
To do so, we look to the district court’s comments at sentencing. And we note that
a district court is not required to discuss every Trog factor in order to properly exercise its
discretion; it need only carefully consider circumstances for and against departure. Pegel,
795 N.W.2d at 252, 254–55. The district court acknowledged that “[t]here are factors I am

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required by the law to look at in choosing whether to grant a departure.” And it told Adkins,
“You fulfill none of those factors. You have not shown an amenability to probation.” It
explicitly discussed the age factor, noting that Adkins is “still a young man.” It also
implicitly recognized that Adkins had made efforts to address his issues with alcohol and
that he has the support of family and friends. But the district court expressed some concern,
saying “I don’t think there’s anyone in this courtroom, including you . . . that can really
guarantee me that drunken Mike won’t come back. And based on the history I have, when
drunken Mike comes back, people get hurt and people hurt seriously, and at some point I
have an obligation to society.” The district court did not discuss the Butler memorandum
or the remorse factor, but it received the memorandum, heard arguments from Adkins’s
trial counsel, received Adkins’s letter, and heard his allocution. Crucially, in finding that
Adkins is not amenable to probation the district court explained that it was making its
decision “based on the information that I have in front of me.” In other words, it was
considering what had been presented to it, which necessarily means that it considered
Adkins’s arguments why he is amenable to probation. This comment, as well as the
arguments that the district court heard at sentencing and its mention of the factors that it is
required to look at, satisfies us that the district court properly considered whether Adkins
is particularly amenable to probation.
We also note that the standard for particular amenability to probation is demanding.
The Minnesota Supreme Court explained in State v. Soto that the word “particular” is
deliberately included in the amenability-to-probation standard to “ensure that the
defendant’s amenability to probation distinguishes the defendant from most others” and

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really provides the substantial and compelling circumstantial circumstances required to
justify a departure from the sentencing guidelines . 855 N.W.2d 303, 309 (Minn. 2014).
Moreover, the supreme court noted that while diagnostic assessments “can contain usef ul
information for determining whether a defendant is particularly amenable to probation,”
the “mere fact” that such a report recommends that a defendant is particularly amenable to
probation does not mean that a departure from the guidelines is necessaril y justified. Id.
While Adkins received a favorable assessment in the Butler memorandum, there were
factors that cut against a downward dispositional departure, including, most notably, his
repeated prior failures on probation. Were the issue raised on a ppeal, we would conclude
that the district court did not abuse its discretion in finding that Adkins is not particularly
amenable to probation.
The district court also addressed what would be best for Adkins and for society.
State v. Heywood explains that a district court “can focus more on the defendant as an
individual and on whether the presumptive sentence would be best for him and for society”
when justifying a dispositional departure. 338 N.W.2d 243, 244 (Minn. 1983). Both the
Butler memorandum and Adkins’s trial counsel argued that it would be best for Adkins
and society that he be put on probation so that he could continue to make progress in
therapy. The district court responded to this argument by saying:
Undoubtedly it would be good for yo u and your family if I
didn’t send you to prison. The question is, would it be good
for society? And based on your criminal history, based on your
repeated assaults while on probation, based on your previous
actions, knowing full well those actions would result in a
prison commit . . . I cannot find you amenable to probation or
amenable to treatment. History simply doesn’t support you.

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It is clear to us that the district court was also deliberate in its consideration of what is best
for Adkins and what is best for society.
Because we are satisfied that it deliberately considered the factors in favor of a
downward dispositional departure “alongside ‘valid reasons’ for non -departure,” see
Curtiss, 353 N.W.2d at 264, we conclude that the district court did not abuse its discretion
in denying Adkins’s request for a disposition departure.
Affirmed.