State of Minnesota, Appellant,

This opinion will be unpublished and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
A18-1048

State of Minnesota,
Appellant,

vs.

Michael John Hill,
Respondent.

Filed November 26, 2018
Affirmed
Kalitowski, Judge*

Ramsey County District Court
File No. 62-CR-17-5031

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

John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for appellant)

Charles F. Clippert, Clippert Law Firm, P.L.L.C., St. Paul, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Schellhas, Judge; and
Kalitowski, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
KALITOWSKI, Judge
In this sentencing appeal, the state argues that the district court abused its discretion
when it granted respondent a downward dispositional departure to probation for his
conviction of first-degree criminal sexual conduct. We affirm.
D E C I S I O N
“A district court has broad discretion to depart from the sentencing guidelines, and
[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 Minnesota
Sentencing Guidelines prescribe a range of sentences , and the “sentencing court must
pronounce a sentence within the applicable range unless there exist identifiable, substantial,
and compelling circumstances that distinguish a case and overcome the presumption in
favor of the guidelines sentence.” State v. Soto , 855 N.W.2d 303, 308 (Minn. 2014)
(quotation omitted); see Minn. Sent. Guidelines 2.D.1. (2016). The district court departs
dispositionally if it “orders a disposition other than that reco mmended in the Guidelines.”
Minn. Sent. Guidelines 1.B.5.a (2016). This court reviews “the sentence imposed or stayed
to determine whether the sentence is inconsistent with statutory requirements,
unreasonable, inappropriate, excessive, unjustifiably dispa rate, or not warranted by the
findings of fact issued by the district court.” Minn. Stat. § 244.11, subd. 2(b) (2016).
I. Respondent’s particular amenability to probation
The state argues that the district court abused its discretion when it found respondent
was particularly amenable to probation. We disagree.

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A defendant’s p articular amenability to probation may support a downward
dispositional departure at sentencing. Minn. Sent. Guidelines 2.D.3.a(7) (2016). “By
requiring a defendant to be particularly amenable to probation , . . . we ensure that the
defendant’s amenability to probation distinguished 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 (quotations omitted). 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 gave several reasons to support its finding that respondent was
particularly amenable to probation. We review these reasons in turn, and will find that the
district court abused its discretion only if the “reasons are improper or insufficient and there
is insufficient evidence of record to justify the departure. ” Soto, 855 N.W.2d at 308
(quotations omitted).
First, the district court considered that respondent had no criminal record prior to
this offense. While a “defendant’s clean record does not by itself justify mitigation of
sentence,” the court may use this as part of its analysis. Trog, 323 N.W.2d at 31. The record
supports that respondent had no previous criminal convictions , which weighs in favor of
particular amenability.
Second, the district court considered that respondent accepted responsibility early
on in this process. When respondent was first a rrested, he admitted to having a sexual

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relationship with A.L. While it was reported in the presentence investigation that
respondent “ portrayed the victim as t he aggressor” and stated “ she was the one who
initiated the sexual contact and he ‘went along with it,’” the district court relied on the fact
that respondent admitted guilt when he was first arrested. We cannot say the district court
erred in determining that r espondent’s cooperation with the investigation by accepting
responsibility weighs in favor of particular amenability.
Third, the district court considered that respondent expressed remorse about the
offense. Expressions of remorse at the sentencing hearing can support finding a defendant
particularly amenable to probation. Soto, 855 N.W.2d at 311. At the hearing, respondent
apologized and said, “I am very sorry for everything I did. I don’t know how it ever came
across that I wasn’t.” The district court’s finding that respondent expressed remorse at the
sentencing hearing is supported by the record and weighs in favor of particular amenability.
Fourth, the district court considered that respondent took it upon himself to begin a
sex offender treatment program. The court stated that respondent’s “willingness to engage
in a rigorous sex offender program at the end of the day not only is beneficial for him but
for his family members and for the rest of us in society.” Respondent’s cooperation and
experience with treatment can be a factor that is considered by the district court. See State
v. Case, 350 N.W.2d 473, 475 (Minn. App. 1984) (noting that the “court may consider a
defendant’s prior failures at treatment” when assessing particular amenability). Respondent
attended at least three group counseling sessions and underwent an additional psychosexual
evaluation. Respondent’s initiation of sex offender treatment weighs in favor of particular
amenability.

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Fifth, the district court considered respondent’s familial support at the sentencing
hearing. The district court may assess familial support w hen evaluating amenability to
probation and the court found that respondent’s family may help him “get to a place where
he will never allow himself to engage in this type of behavior again.” The record indicates
that overall, respondent had familial support during this process, which weighs in favor of
particular amenability.
We conclude that the district court appropriately considered the Trog factors when
it found respondent particularly amenable to probation. Although we may not have reached
the same conclusion as the district court, our standard of review compels us to find that the
district court did not abuse its discretion.
II. The severity of the offense and punishment
The state argues that sentencing respondent to probation does not adequately reflect
the severity of the offense. When a departure from the sentencing guidelines “resulted in a
sentence that was disproportional to the severity of the offense of conviction,” appellate
courts have found an abuse of d iscretion. Soto, 855 N.W.2d at 313 (quotation omitted).
This court can “modify a departure if it has a ‘strong feeling’ the sentence is inappropriate.”
State v. Law , 620 N.W.2d 562, 565 (Minn. App. 2000), review denied (Minn. Dec. 20,
2000).
Soto considered both the defendant’s particular amenability to probation and the
severity of the crime when ultimately determining whether the district court abused its
discretion. See 855 N.W.2d at 313 (“Given the brutality of the crime and the absence in the
record of any ‘substantial and compelling’ circumstances that distinguish Soto from other

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defendants, a sentence of supervised probation was not proportional to the severity of his
offense.”). Here, although respondent had an extensive sexual relationship with A. L., we
cannot say the sentence was inappropriate or disproportionate to the severity of the offense.
In conclusion, in deference to the district court’s broad discretion in sentencing, we
affirm the downward dispositional departure.
Affirmed.