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This opinion will be unpublished and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
A18-0716

State of Minnesota,
Respondent,

vs.

Peter Gribovsky,
Appellant.

Filed March 11, 2019
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-17-19557

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

Michael O. Freeman, Hennepin Coun ty Attorney, Linda K. Jenny, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Halbrooks , Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
While at a restaurant, appellant Peter Gribovsky approached his ex-girlfriend and
son, in violation of an active order for protection, and placed a toy water gun in front of his

2
son. Gribovsky subsequently pl eaded guilty to violating an ord er for protection. At the
sentencing hearing, Gribovsky requested a gross-misdemeanor sen tence in lieu of the
presumptive felony sentence, but the district court denied his motion. On appeal,
Gribovsky argues that the distric t court abused its discretion when denying his
durational-departure request. We affirm.
FACTS
An order for protection was issued in April 2017 against appellant Peter Gribovsky
prohibiting him from contacting his ex-girlfriend and their min or son. On an evening in
June 2017, Gribovsky’s ex-girlfri end was at a restaurant having dinner with her children
and several friends. During dinn er, Gribovsky approached their table, placed a toy water
gun in front of his son and left. Shortly thereafter, his ex-g irlfriend contacted the police
and explained what happened.
Gribovsky was charged with viol ating an order for protection, in violation of
Minnesota Statutes section 518B. 01, subdivision 14(a) (2016), a nd he pleaded guilty to
that crime. At the plea hearing, defense counsel informed the district court that Gribovsky
would be requesting a gross-misdemeanor sentence at the sentencing hearing. The district
court stated that it would strongly consider a gross-misdemeano r sentence, but made no
guarantees.
A presentence investigation was completed establishing Gribovsk y’s criminal
history score and the presumptive sentence for his conviction: a stayed 21-month felony
sentence. At the sentencing hear ing, the state asked the court to impose the presumptive
sentence. Gribovsky moved for a downward durational departure, requesting a stayed

3
gross-misdemeanor sentence, arguing that his crime was less ser ious than typical because
it occurred out of random public contact and stemmed from wanting to give his son a toy.
Initially the district court inte rpreted Gribovsky’s motion as a dispositional
departure. But the court denied Gribovsky’s motion for a downward durational departure,
citing a history of no-contact-o rder violations, and sentenced him to the presumptive
21-month stayed sentence. Gribovsky appeals.
D E C I S I O N
Gribovsky argues that the district court abused its discretion by denying his motion
for a downward durational depa rture. Specifically, he contends that the court
misinterpreted his motion as a request for a dispositional departure and erroneously applied
the wrong factors when evaluating his motion. This court affor ds district courts “great
discretion in the imposition of sentences and [will] reverse se ntencing decisions only for
an abuse of that discretion.” State v. Soto , 855 N.W.2d 303, 307-08 (Minn. 2014)
(quotation omitted). We will not interfere with a decision to impose the presumptive
sentence as long as the record sho ws the sentencing court caref ully evaluated all the
testimony and information befo re making a determination. State v. Pegel , 795 N.W.2d
251, 255 (Minn. App. 2011). 1 To examine whether the district court performed that

1 Presumptive sentences for felony offenses are established by t he Minnesota Sentencing
Guidelines. Minn. Stat. § 244.09, subd. 5 (2016). The sentenc ing guidelines strive to
“maintain uniformity, proportionality, rationality, and predict ability in sentencing” of
felony crimes. Id. A s s u c h , d e p a r t u r e s f r o m t h e g u i d e l i n e s a r e d i s c o u r a g e d a n d are
intended to apply to a small number of cases. State v. Misquadace , 644 N.W.2d 65, 68
(Minn. 2002); see also Minn. Sent. Guidelines cmt. 2.D.301 (2016). Only when there are
“identifiable, substantial, and compelling circumstances to sup port a departure” may the
district court depart from the presumptive sentence. Minn. Sent. Guidelines 2.D.1 (2016).

4
evaluation here, we first address the differences between dispo sitional and durational
departures. We then review the record in this case.
The Minnesota Sentencing Guide lines define two types of senten cing
departures: durational and disp ositional. Minn. Sent. Guidelin es 1.B.5.a, b (2016). A
durational departure is a sentence that departs from the presumptive guideline in length of
the sentence. Minn. Sent. Guide lines 1.B.5.b. A durational de parture must be based on
factors that exhibit the seriousness of the offense , not the characteristics of the offender.
State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995). When deciding whether to g rant a
downward durational departure, the district court considers whether the conduct involved
in the offense was significantly less serious than the typical conduct for that offense. State
v. Peter, 825 N.W.2d 126, 130 (Minn. App. 2012), review denied (Minn. Feb. 27, 2013).
By contrast, a dispositional depa rture occurs when the distric t court orders a
disposition other than that reco mmended in the sentencing guide lines. Minn. Sent.
Guidelines 1.B.5.a. For example, a downward dispositional depa rture occurs when the
sentencing guidelines recommend a prison sentence, but the district court instead stays the
sentence. Minn. Sent. Guidelin es 1.B.5.a.(2). A dispositional departure focuses on
characteristics of the defendant that demonstrate whether the d efendant is “particularly
amenable to individualized treatment in a probationary setting. ” State v. Wright , 310
N.W.2d 461, 462 (Minn. 1981); see also State v. Trog , 323 N.W.2d 28, 31 (Minn. 1982)
(citing the “defendant’s age, his prior record, his remorse, hi s cooperation, his attitude
while in court, and the support of his friends and/or family” a s relevant factors that may
justify a dispositional departure).

5
Here, Gribovsky requested a sentence within gross misdemeanor limits, which is a
durational departure. See State v. Bauerly , 520 N.W.2d 760, 762 (Minn. App. 1994)
(holding that an imposed sentence one day shorter than the presumptive felony sentence of
one year and one day is a durational departure), review denied (Minn. Oct. 27, 1994). We
examine whether the required evaluation of testimony and inform ation was completed
before the district court imposed the presumptive sentence.
Gribovsky asserts that his offense was less serious than a typical order for protection
violation because it arose out of random public contact and his desire to give his son a toy.
At the beginning of the plea hearing, the district court and counsel for each party discussed
Gribovsky’s intention to request a gross-misdemeanor sentence at the sentencing hearing.
Gribovsky’s arguments were then orally asserted by counsel at the sentencing hearing. At
sentencing the district court noted that the arguments of couns el were discussed before
(during the plea hearing) and e xplicitly stated that it “would agree that there was no
violence . . . either in what was alleged or what was actually admitted to in the plea.” Based
on this statement, we discern that the district court evaluated Gribovsky’s argument about
the seriousness of the offense before deciding on the motion to depart. See Pegel, 795
N.W.2d at 255.
But Gribovsky contends that the district court erred by relyin g on his personal
characteristics, not the seriousness of the offense. He points out that the court characterized
his request for a gross-misdemeanor sentence as a motion for a dispositional departure,
rather than a durational departure. The state does not dispute that the district court initially

6
mischaracterized Gribovsky’s request, but argues that the distr ict court considered and
rejected Gribovsky’s argument for a durational departure. We agree.
Here, the district court examined factors that related to both the seriousness of the
offense and Gribovsky’s criminal history. But it is not an abuse of discretion for a district
court to consider an offender-related factor, such as criminal history, as long as the court
evaluates the offense-related f actors when considering a durati onal departure motion.
Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). And even when departure fa ctors
exist, it is not an abuse of dis cretion not to depart, and no r easons need to be given. See
State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985). The district court acknowledged
that Gribovsky’s arguments were heard and stated that Gribovsky ’s offense contained no
violence. Further, when Gribovsky’s counsel corrected the dist rict court’s
mischaracterization of his departure request, the district cour t explicitly thanked counsel
for the correction, without amending her prior findings.
In sum, although the district court initially mischaracterized Gribovsky’s request,
we conclude that the district court did not err in considering and rejecting Gribovsky’s
arguments for a durational departure. Because the court completed a careful evaluation of
the evidence and did not rely on an impermissible factor in den ying Gribovsky’s motion,
it did not abuse its discretion.
Affirmed.