State of Minnesota, Appellant,

This opinion will be unpublished and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
A18-0849

State of Minnesota,
Appellant,

vs.

Frank Quintero,
Respondent.

Filed April 8, 2019
Affirmed
Florey, Judge

Nobles County District Court
File No. 53-CR-17-312

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

Kathleen A. Kusz, Nobles County Attorney, Worthington, Minnesota; and

Travis J. Smith, Special Assistant Nobles County Attorney, Slayton, Minnesota (for
appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and
Florey, Judge.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In this sentencing appeal, the state argues that, because the record does not support
a determination that respondent is particularly amenable to probation , the district court
abused its discretion by dispositionally departing. The state further argues that the district
court erred by finding the offense less serious than usual and by considering that finding in
its departure determination. We affirm.
FACTS
In April 2017, police executed a search warrant at “Lot 37” and “Lot 38” in
Worthington, Minnesota. Respondent Frank Quintero, a woman, a young child , and
methamphetamine paraphernalia were found inside a trailer at Lot 38. A man, R.R., was
found in a shed adjacent to Lot 38, as was methamphetamine, drug paraphe rnalia, and a
shotgun shell. Respondent admitted to possessing the shotgun shell and stated that he put
it in the shed around two months earlier. Several children who routinely resided at Lot 38
were placed under protective custody, including respondent’s 11-year-old son.
The state charged respondent with four counts: possession of ammunition by a
person convicted of a crime of violence , a violation of Minn. Stat. § 624.713, subd. 1(2)
(2016); fifth-degree methamphetamine possession ; storing methamphetamine
paraphernalia in the presence of a child ; and petty -misdemeanor possession of drug
paraphernalia. The state later dismissed the petty -misdemeanor charge. Respondent
pleaded guilty to the remaining charges with the intent of seeking a dispositional departure.

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The district court deferred acceptance of the pleas pending a presentence investigation
(PSI) and chemical-use assessment.
The PSI report noted six prior felonies: a 2016 conviction for marijuana possession,
a 1999 conviction for unauthorized use of a motor vehicle, 1996 and 1994 convictions for
driving after suspension or revocation, a 1990 conviction for first -degree burglary, and a
1990 conviction for unauthorized use of a motor vehicle. The report noted five
misdemeanor or gross -misdemeanor offenses, including 200 6 and 200 2 convictions for
fourth-degree assault. At the time of the PSI report, respondent was on probation for the
felony marijuana -possession offense. Although the presumptive sentence for the
possession-of-ammunition charge was a 60 -month executed sentence, the PSI report
recommended that execution of the sentence be stayed. See Minn. Stat. § 609.11, subd.
5(b) (2016) (requiring imprisonment “for not less than five years”).
Respondent moved for a dispositional departure, arguing, in part, that he was
particularly amenable to probation. The state opposed a dispositional departure, but was
not opposed to a durational departure, and conceded that the possession of one shotgun
shell is “less serious than the typical offense.” The district court granted a dispositional
departure. The court acknowledged that respondent ha s a “sig nificant” criminal and
chemical-use history, but found that there were substantial and compelling reas ons to
depart because of respondent’s particular amenability to probation, as demonstrated by his
behavior and attitude since his arrest. The court found that respondent had not violated
any release conditions, he had approximately four months of clean dr ug tests, and his son
was returned to him because he completed child-in-need-of-protection-or-services

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(CHIPS) programming. The court also discussed respondent’s offense and stated that
possession of “one shotgun shell, is a basis for a departure here.”
On the charge of unlawful possession of ammunition, the district court stayed
execution of the 60-month sentence. The district court imposed a presumptive 15-month
stayed sentence for the fifth-degree possession charge, and a presumptive 17-month stayed
sentence for the charge of storing methamphetamine paraphernalia in the presence of a
child.
The district court filed a departure report indicating that the crime was less onerous
than usual, respondent was particularly amenable to probation, respondent showed remorse
and/or accepted responsibility, and the departure was recommended by court services. The
court noted that respondent “worked his case plan” in the CHIPS case, he “tested negative
for drugs upon admission to jail and has not had one positive drug test administered by
probation or social services,” and he “has demonstrated that [he] is particularly amenable
to probation in the community given his response to services and programming offered to
him and due to his cooperative attitude throughout both of his cases.” This appeal
followed.
D E C I S I O N
Although possessing ammunition in violation of Minnesota Statutes section
624.713, subdivision 1(2) , normally carries a mandatory mi nimum prison term of five
years, a district court may depart from the mandatory minimum sentence if it finds a
substantial and compelli ng reason to do so. See Minn. Stat. § 609.11 , subds. 5(b), 8(a)
(2016). “A district court has broad discretion to depart from the sentencing guidelines, and

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[this court] review[s] its decision to depart for an abuse of discretion.” State v. Peter, 825
N.W.2d 126, 129 (Minn. App. 2012), review denied (Minn. Feb. 27, 2013).
The state raises two primary challenges to the sentencing departure. First, the state
argues that the record does not support a determination that respondent is particularly
amenable to probation. Second, the state asserts that the district court erred by finding the
offense less serious than usual and by considering t hat finding in its departure
determination. We address each of these arguments in turn.
I. The record supports the district court’s determination that respondent i s
particularly amenable to probation.

“A defendant ’s particular amenability to probation justifies a district court ’s
decision to stay the execution of a presumptively executed sentence.” State v. Bertsch, 707
N.W.2d 660, 668 (Minn. 2006). A “defendant’s age, his prior record, his remorse, his
cooperation, his attitude while in court, and the support of friends and/or family, are
relevant to a determination whether a defendant is particularly suitable to individualized
treatment in a probationary setting.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
The district court noted that, at the time of sentencing, respondent was 47 years of
age, most of his “serious” criminal history was “older,” he showed remorse, he was
cooperative, he complied with his CHIPS -related conditions and programming, he
maintained his sobriety, and he had not violate d any release conditions . In addition, the
PSI report recommended a stayed sentence. We will find that the district court abused its
discretion by dispositionally departing only if the “reasons are improper or insufficient and
there is insufficient evidence of record to justify the departure.” State v. Soto, 855 N.W.2d

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303, 308 (Minn. 2014) (quotations omitted). Here, the district court’s reason for the
departure, particular amenability to probation, was proper and sufficiently supported by the
record.
The state repeatedly argues that respondent was not particularly amenable to
probation because he committed a felony while on felony probation. The district court was
cognizant of respondent’s criminal history, but conc luded that respondent ’s substantial
compliance with his criminal case and CHIPS case indicated a particular amenability to
probation. The district court did not abuse its discretion. “Even if we might have come to
a different conclusion had we been weighing the evidence ourselves, that is not the
applicable st andard upon appellate review.” State v. Stempfley , 900 N.W.2d 412, 419
(Minn. 2017).
The state challenges the district court’s consideration of respondent’s CHIPS case
as a basis for concluding that respondent was particularly amenable to probation. The state
argues that the district court never took judicial notice of the case or “otherwise
incorporate[d] its facts by reference.” However, at the sentencing hearing, respondent’s
counsel asked the district court to take judicial notice of the CHIPS case. Although the
state opposed a dispositional departure and argued that “the fact that [respondent] complied
with a CHIPS plan is not a sufficient basis for a departure,” the state did not challen ge the
district court’s consideration of the CHIPS case. The district court did not err by
considering the CHIPS case. See In re Zemple, 489 N.W.2d 818, 820 (Minn. App. 1992)
(concluding that a district court did not abuse its discretion by taking judici al notice of
findings made in a separate proceeding).

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II. The district court did not err by relying on the se riousness of respondent’s
offense.

The state next argues that the record does not support a determination that
respondent’s offense was less se rious than usual, and to the degree that the district court
relied upon the se riousness of respondent’s offense in granting a dispositional departure,
the district court erred.
Regarding the offense being less se rious than usual , at the sentencing hearing,
respondent explained the circumstances under which he came to possess the shell, stating
that he took it from a boy who wanted to throw it into a fire, and he placed it into the shed.
The state then conceded the offense was le ss serious than usual. The district court
ultimately agreed, noting that “possession of one shotgun shell is a far cry from possessing
a weapon and . . . committing a crime with the weapon, or even possessing a weapon for
that matter.” “[W]e are bound to uphold the district court’s evaluation of the facts and its
discretionary sentencing decision unless our review of the record reveals an abuse of that
discretion.” Stempfley, 900 N.W.2d at 419. On these facts, we cannot conclude that t he
district court abused its discretion by determining that constructive possession of one
shotgun shell was less serious than usual.
As to the district court’s consideration of the seriousness of the offense, the state is
correct that dispositional departures focus on the characteristics of the offender and
durational departures focus on the offense. See State v. Solberg , 882 N.W.2d 618, 623
(Minn. 2016). However, the supreme court has indicated that it is not an abuse of discretion
for a district court to consider offens e-related factors when deciding whether to

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dispositionally depart. In Stempfley, a district court granted a dispositional departure based
upon the defendant’s minor or passive role in the offense. 900 N.W.2d at 41 3, 416 .
Although the state did not chall enge the basis for the departure and only challenged
whether the basis was supported by the record, the supreme court ultimately “conclude[d]
that the district court acted within its broad discretion.” Id. at 413, 419.
In State v. Chaklos, the supreme court noted that offense-related factors may be used
to support dispositional departures and ultimately concluded that an upward dispositional
departure was justified because the defendant’s conduct was “ significantly more serious
than that typically invol ved in the commission of the offense in question. ” 5 28 N.W.2d
225, 228 (Minn. 1995).
The state acknowledge s that “offense-based aggravating factors may . . . form the
basis for an aggravated dispositional departure,” but argue s that analyzing offense -based
mitigating factors infringes on the powers of the legislative branch. We disagree. See State
v. Walker , 913 N.W.2d 463, 468 (Minn. App. 2018) (“F or a downward dispositional
departure, a district court may consider both offender- and offense-related factors.”). The
legislature has expressly permitted departures from the mandatory minimum sentence at
issue. See Minn. Stat. § 609.11, subd. 8(a). The district court did not abuse its discretion
by considering the se riousness of the offense, and even if the district court did err, there
are additional grounds for the departure, namely, respondent ’s particular amenability to
probation.
Affirmed.