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This opinion will be unpublished and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
A18-0605

State of Minnesota,
Respondent,

vs.

Tracy Lynn Bailey,
Appellant.

Filed March 25, 2019
Affirmed
Johnson, Judge

Cass County District Court
File No. 11-CR-17-201

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

Benjamin T. Lindstrom, Cass County Attorney, Walker, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Tracy Lynn Bailey pleaded guilty to first-degree driving while impaired (DWI).
Before the sentencing hearing, she moved for a downward dispositional departure on the
ground that she is particularly amenable to probation. The district court denied the motion

2
and imposed a sentence within the presumptive range prescribed by the sentencing
guidelines. We conclude that the district court did not err by denying Bailey’s motion and,
therefore, affirm.
FACTS
On February 2, 2017, at approximately 9:37 p.m., the Leech Lake tribal police
department received a report that a woman driving a silver Chevrolet Impala on U.S.
Highway 2 may be intoxicated. Cass County Deputy Sheriff Diaz heard the report and saw
a car matching the description. Deputy Diaz followed the car, saw it weave, and pulled it
over. Deputy Diaz observed that the driver, Bailey, “had bloodshot , watery eyes, poor
balance and slurred speech.” Bailey failed three field sobriety tests and declined to take a
preliminary breath test. Diaz arrested Bailey and transported her to the county jail. He did
not read her the implied-consent advisory but, rather, sought and obtained a search warrant
authorizing the taking of a sample of her blood. The blood test revealed that Bailey had an
alcohol concentration of 0.251. On the day of her arrest, Baile y had four prior DWI
convictions since 2000 and was on supervised release from imprisonment for a 2009 felony
DWI conviction.
The state charged Bailey with first-degree DWI for operating a motor vehicle while
under the influence of alcohol , in violation o f Minn. Stat. § 169A.20, subd. 1(1) (2016) ,
and first-degree DWI for operating a motor vehicle with an alcohol concentration of 0.08
or more within two hours, in violation of Minn. Stat. § 169A.20, subd. 1(5).
In November 2017, Bailey and the state entere d into a plea agreement in which
Bailey agreed to plead guilty to count 1 and the state agreed to dismiss count 2. The state

3
also agreed to not request a sentence more severe than an executed sentence of 41 months
of imprisonment, which is the shortest sentence within the presumptive range specified by
the sentencing guidelines.
Before sentencing, Bailey moved for a downward dispositional departure ,
requesting a stayed sentence and probation. The district court held a sentencing hearing in
February 2018. Bailey’s attorney argued that Bailey’s conduct during the one-year period
between the offense and the sentencing hearing demonstrates that she is particularly
amenable to probation. Bailey’s attorney stated that Bailey’s efforts to manage her mental
health and her sobriety “make her distinctive . . . from the average probationer.”
Bailey testified that she is seeing a psychiatrist, is participating in individual
therapy, and is involved in Alcoholics Anonymous (A.A.). She testified that be ing
diagnosed with and treated for bipolar disorder has given her a positive outlook, and she
expressed remorse about the offense. Bailey also read a prepared statement about the
changes she had made in her life during the previous year. She stated that it was “the first
year of my adult life that I feel I’ve had a chance to grow, to learn about who I am, and to
accept the challenges that I need to [ accept].” Bailey submitted several documents in
support of her motion, including a mental -health assessment, a chemical-use assessment,
A.A. attendance logs, an individual mental-health treatment plan, records of her psychiatric
treatment, and a letter from her therapist.
Bailey also called three witnesses in support of her motion . Her probation officer,
Tabatha Schact, testified that Bailey had fully complied with the terms of her house arrest
since the date of the offense, had maintained contact with her, had taken the initiative to

4
follow through on the conditions and recommendations concerning her mental h ealth and
chemical dependency, and had remained sober , as evidenced by daily alcohol t esting.
Bailey’s daughter, Amber Hill, testified that she has noticed positive changes in her mother
since the offense, including a greater commitment to sobriety, incre ased time spent with
family, and a “determin[ation] to take care of herself . . . her family and . . . her life.”
Bailey’s A.A. sponsor, Jennifer Martineau, testified that Bailey attends an average of two
meetings per week and has taken on leadership role s in her A.A. groups. Martineau
testified that she has noticed improvements in Bailey’s mental health based on her ability
to “differentiate between the bipolar and the alcoholism” and that Bailey has maintained
her commitments in spite of “numerous very traumatic losses” in the past year. Martineau
stated that “this time there’s a whole different approach to [Bailey’s] sobriety.”
The state opposed Bailey’s motion and requested an executed sentence of 41 months
of imprisonment. The prosecutor stated that Bailey is polite and cordial but has a record
of prior DWI convictions and has not been successful on probation in the past . The
prosecutor argued that there was no assurance that the house-arrest and alcohol-monitoring
procedures that “worked for the interim period here would be available for t he longer
period of time.” The corrections officer who authored the pre-sentence investigation report
recommended an executed sentence of 48 months of imprisonment, which is the mid-point
of the presumptive range.
At the conclusion of the sentencing heari ng, t he district court denied Bailey’s
motion and imposed an executed sentence of 41 months of imprisonment. Bailey appeals.

5
D E C I S I O N
Bailey argues that the district court erred by denying her motion for a downward
dispositional departure.
The Minnesota Sentencing Guidelines generally provide for presumptive sentences
for felony offenses. Minn. Sent. Guidelines 2.C (2016). For any particular offense, the
presumptive sentence is “presumed to be appropriate for all typical cases sharing crim inal
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 compellin g
circumstances to support a departure.” Minn. Sent. Guidelines 2.D.1 (2016) . The
sentencing guidelines provide non-exclusive lists of mitigating and aggravating factors that
constitute identifiable, substantial, and compelling circumstances and, thus, may justify a
departure if such circumstances are found to exist . See Minn. Sent. Guidelines 2.D.3
(2016).
If a defendant requests a downward dispositional departure, a district court first must
determine whether “‘mitigating circumstances are present’” an d, if so, whether “those
circumstances provide a ‘substantial[] and compelling’ reason not to impose a guidelines
sentence.” State v. Soto , 855 N.W.2d 303, 308 (Minn. 2014) (quoting State v. Best, 449
N.W.2d 426, 427 (Minn. 1989), and Minn. Sent. Guidelines 2.D.1). If so, the district court
has discretion to order a downward dispositional departure. Id.; Best, 449 N.W.2d at 427.
In exercising its discretion, the district court must “deliberately consider[] circumstances
for and against departure.” State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002),

6
review denied (Minn. Apr. 16, 2002). “[T]he mere fact that a mitigating factor is present
. . . does not obligate the court to place defendant on probation.” State v. Pegel , 795
N.W.2d 251, 253 (Minn. App. 2011) (quotation omitted). If a district court orders a
departure from the presumptive sentence, the district court must state the reason or reasons
for the departure. Minn. Sent. Guidelines 2.D.1.c (2016). If the district court does not
order a departure, 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).
This court generally applies an abuse-of-discretion standard of review to a district
court’s denial of a motion for a downward dispositional departure. Soto, 855 N.W.2d at
307-08. But a district court has discretion to depart from the presumptive range “only if
aggravating or mitigating circumstances are present; if aggravating or mitigating
circumstances are not present, the trial court has no discretion to depart.” Best, 449 N.W.2d
at 427 (emphasis omitted). A district court abuses its discretion if “‘its decision is based
on an erroneous view of the law. ’” Soto, 855 N.W.2d at 308 n.1 (quoting Riley v. State,
792 N.W.2d 831, 833 (Minn. 2011) ). Thus, to the extent that the determination whether
aggravating or mitigating circumstances are present “turns on a question of law,” we apply
a de novo standard of review. See id. And to the extent that a district court has discretion
to depart from the presumptive range, we defer to the district court’s decision and reverse
only if there is “‘insufficient evidence of record to justify the departure.’” See id. at 308
(quoting State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002)).

7
Bailey’s motion for a downward dispositional departure is based on the seventh
mitigating factor in the sen tencing guidelines: particular amenability to probation. See
Minn. Sent. Guidelines 2.D.3.a.7 (2016). The r equirement that a defendant be
“particularly” amenable to probation “ensure[s] that the defendant’s amenability to
probation distinguishes the defendant from most others and truly presents the ‘substantial
and compelling circumstances’ that are necessary to justify a departure.” Soto, 855 N.W.2d
at 309; see also Minn. Sent. Guidelines. cmt. 2.D.303 (2016). In determining whether a
defendant is particularly 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 fri ends
and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). A district court need not
discuss all of the Trog factors if the district court denies a motion for a downward
dispositional departure. Pegel, 795 N.W.2d at 254.
In this case, t he distr ict court acknowledged Bailey ’s evidence and found her
testimony and that of her witnesses to be credible . But the district court noted Bailey’s
history of multiple DWI convictions and the fact that , at the time of her offense, she was
on supervised release from imprisonment for a prior felony -level DWI, which followed a
probation violation and the execution of a stayed sentence . The district court expressed
concern that Bailey’s mental-health and chemical-dependency issues would be challenging
and stated that she has “a very consistent life -long record of . . . falling off the wagon.”
The district court addressed Bailey by stating: “The work that you’ve done changes your
life and those of the people that love you and that are around you and hopefully the general

8
public at some point too . But I don’t agree that it meets the legal standard of particular
amenability to probation.” These and other parts of the record indicate that the district
court fully considered Bailey’s arguments and evidenc e and stated reasons that are more
than adequate for its decision to deny the motion for a downward dispositional departure.
Bailey nonetheless argues that the Trog factors and applicable caselaw demonstrate
that the district court erred by concluding that she is not particularly amenable to probation.
Bailey contends that the evidence in the record shows that she is, in fact, particularly
amenable to probation, “as demonstrated by her acceptance of responsibility and remorse
for the crime, the support of her family and community, her demonstrated compliance with
supervision, the significant efforts she has made to maintain her sobriety and, most
importantly, the work she has done to address her newly diagnosed mental illnes s—the
symptoms of which played a significant role in her history of alcohol use.” She contends
that the district court relied exclusively on her prior record in denying her departure motion.
The district court did not err by determining that Bailey is not particularly amenable
to probation. T o be sure, t he evidentiary record includes some evidence indicating that
Bailey is somewhat amenable to probation. The record indicates that she has made
progress since receiving a new mental -health diagnosis , and the district court
complimented her on the positive changes she had made . But the evidentiary record
includes at least as much evidence indicating that Bailey is not amenable to probation. She
has been unsuccessful on probation in the past and has a history of multiple DWI offenses.
The district court is not required to ignore or minimize Bailey’s prior criminal history. See
Pegel, 795 N.W.2d at 253-54. The existence of conflicting evidence makes it difficult for

9
Bailey to establish that she is particularly amenable as a matter of law, which requires her
to show that the “circumstances provide a substantial and compelling reason not to impose
a guidelines sentence” and that there is sufficient “evidence of record to justify the
departure.” See Soto, 855 N.W.2d at 308 (quotations omitted).
In sum, the district court did not err by denying B ailey’s motion for a downward
dispositional departure.
Affirmed.