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This opinion will be unpublished and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
A18-1324

State of Minnesota,
Respondent,

vs.

Michael Jon Schluessler,
Appellant.

Filed May 13, 2019
Affirmed
Smith, Tracy M., Judge

Dakota County District Court
File No. 19HA-CR-18-272

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

James C. Backstrom, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Ha lbrooks, Judge;
and Larkin, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
On appeal from a judgment of conviction for possessing pornogra phic works
involving minors, appellant argues that the district court erre d in denying his motions for

2
downward durational and disposi tional departures from the presu mptive sentence under
the Minnesota Sentencing Guidelines. We affirm.
FACTS
Appellant Michael Jon Schluessler is a 50-year-old man with a criminal history that
includes a 1992 conviction for third-degree sexual assault agai nst a 13-year-old child.
Consequently, Schluessler is required to register as a predatory offender.
On August 30, 2017, the Minnesota Bureau of Criminal Apprehensi on (BCA)
forwarded a tip to the Hastings Police Department that a large number of child pornography
photos had been uploaded to Googl e photos. The upload came fro m an email address
associated with Schluessler. A week later, law enforcement executed a search warrant of
Schluessler’s residence. Officers recovered an iPod, three SIM cards, and three cell
phones. After searching the cell phones, the Electronic Crimes Unit (ECU) found images
of suspected child pornography on two of them. The ECU sent the images to the National
Center for Missing and Exploited Children (NCMEC) to determine if they matched
pictures of known child victims. The NCMEC found that, of the images on Schluessler’s
phone, 23 contained nine different identified child victims. A t least four of the child
victims were involved in sexual acts in the images.
Respondent State of Minnesota charged Schluessler with four counts of possessing
pornographic work involving minor s, in violation of Minn. Stat. § 617.247, subd. 4(b)
(2016). Schluessler pleaded gu ilty to all counts, with the int ention of arguing for a
downward departure at sentencing. The district court ordered a psychosexual evaluation
to be completed along with the presentence investigation. The doctor who completed the

3
evaluation diagnosed Schluessler with multiple mental disorders , including “unspecified
paraphilic disorder” and “schiz otypal personality disorder.” S chluessler self-reported
major depressive disorder and posttraumatic stress disorder.
On May 14, 2018, the district court held a sentencing hearing. Schluessler argued
for a downward dispositional departure of being placed on proba tion rather than being
committed to prison. He cited his difficult life and the fact that he has been a victim of
sexual assault himself. In the al ternative, Schluessler argued for a downward durational
departure from the presumptive guidelines range of sentences. He argued that his offense
was less serious than typical because he was not looking specifically for these images, but
that they were downloaded from the internet in a “hodge podge” of material.
The state argued for a sentence at the top of the guidelines ra nge, which was 70
months’ imprisonment.1 As to the dispositional-departure motion, the state argued:
Most importantly, if you just look at his history on
probation and his history in treatment, it’s—he’s been entirely
unsuccessful. He has been revoked every single time he’s been
on probation. He reports at least eleven stints in treatment i n
the last four years. Says he completes the programs but he—
the only time he ever maintained sobriety was for six months
w h i l e h e w a s i n c u s t o d y . S o t h e r e ’ s s i m p l y n o t h i n g i n h i s
history to support such a finding.

1 Because Schluessler’s crime involved multiple victims, he was subject to multiple
sentences. After application of the rules for determining crim inal history, see State v.
Hernandez, 311 N.W.2d 478, 480-81 (Minn. 1981) (stating that, when multi ple offenses
are sentenced by the same court on the same day, the offense fo r which the defendant is
first sentenced is included in the criminal history of the next offense sentenced), the longest
presumptive range of sentence for Schuessler’s convictions was 51 to 70 months.

4
As to the durational-departure motion, the state argued that Sc hluessler’s offense was not
less serious than the typical offense, observing that it involv ed 23 images that contained
pictures of nine different child victims.
The district court denied both motions and imposed a guideline sentence of 59
months in prison.2 The court stated that “for the court to depart, whether it’s dispositional
or durational, there has to be substantial and compelling reasons . . . there’s nothing in this
case that stands out as being substantial and compelling.”
This appeal follows.
D E C I S I O N
Schluessler argues that the district court abused its discretion by refusing to grant a
downward dispositional or durational departure from the presumptive guidelines sentence.
A sentence or range of sentences prescribed under the Minnesot a Sentencing
Guidelines “is presumed to be appropriate.” State v. Soto, 855 N.W.2d 303, 308 (Minn.
2014) (quotation omitted). A district court may depart from the presumptively appropriate
guidelines sentence only if “iden tifiable, substantial, and com pelling circumstances”
warrant doing so. State v. Solberg , 882 N.W.2d 618, 623 (Minn. 2016); see also Minn.
Sent. Guidelines 2.D.1 (2016) (a departure requires “identifiab le, substantial, and
compelling circumstances”). The guidelines include nonexclusive lists of mitigating and
aggravating factors that constitute substantial and compelling circumstances and may
justify departure. See Minn. Sent. Guidelines 2.D.3 (2016). To maintain uniformity an d

2 The district court also imposed concurrent sentences of equal or shorter duration for the
three other convictions.

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proportionality in sentencing, dep artures from the guidelines s entence are discouraged.
State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017).
If a defendant requests a downwar d departure, a district court must determine
whether “mitigating circumstances are present” and, if so, whet her “those circumstances
provide a substantial and compelling reason not to impose a gui delines sentence.” Soto,
855 N.W.2d at 308 (quotations omitted). “[T]he mere fact that a mitigating factor is present
in a particular case does not obligate the court to place [a] d efendant on probation . . . .”
State v. Pegel , 795 N.W.2d 251, 253 (Minn. App. 2011) (quotation omitted). A nd,
“[a]lthough the [district] court is required to give reasons fo r departure, an explanation is
not required when the court cons i d e r s r e a s o n s f o r d e p a r t u r e b u t elects to impose the
presumptive sentence.” State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985).
Appellate courts “afford the [di strict] court great discretion in the imposition of
sentences and reverse sentencing decisions only for an abuse of that discretion.” Soto, 855
N.W.2d at 307-08 (quotation omitte d). A district court abuses its discretion when its
decision is premised on legal errors or clearly erroneous findi ngs of fact. Solberg, 882
N.W.2d at 623. We will reverse a district court’s refusal to d epart only in a “rare” case.
State v. Walker, 913 N.W.2d 463, 468 (Minn. App. 2018).
The guidelines define two types of sentencing departures: dis positional and
durational. Minn. Sent. Guidelines 1.B.5.a, b (2016). A dispo sitional departure occurs
when a district court orders a disposition other than that reco mmended in the sentencing
guidelines. Minn. Sent. Guideli nes 1.B.5.a. For example, a do wnward dispositional
departure occurs when the senten cing guidelines recommend a pri son sentence but the

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district court instead stays the sentence. Minn. Sent. Guideli nes 1.B.5.a(2). A durational
departure, on the other hand, oc curs when a district court orde rs a length of the sentence
that differs from the length recommended in the guidelines. Mi nn. Sent. Guidelines
1.B.5.b.
Downward Dispositional Departure
Schluessler first argues that the district court abused its dis cretion when it denied
his motion for a downward dispositional departure because he is particularly amenable to
probation and unamenable to incarceration.
Substantial and compelling circ umstances justifying a downward dispositional
departure include “a defendant’s particular amenability to indi vidualized treatment in a
probationary setting.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); see also Minn. Sent.
G u i d e l i n e s 2 . D . 3 . a ( 7 ) . F a c t o r s r e l e v a n t t o d e t e r m i n i n g i f a d efendant is particularly
amenable to treatment in a probationary setting include “the de fendant’s age, his prior
record, his remorse, his cooperation, his attitude while in court, and the support of friends
and/or family.” Id.
The district court found that no substantial and compelling cir cumstances were
present, including particular amenability to probation. The record shows the following. At
the time of sentencing, Schluessler was 50 years old. He had a significant criminal history,
including a prior conviction for a sexual offense against a child. Schluessler’s remorse was
questionable. During sentencing, he expressed that he was “truly sorry” for his actions and
any hurt he caused. However, he also qualified this by stating that “I truly did not know I
had these in my possession;” still seeming to refuse full responsibility. Finally, Schluessler

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had very little family support and did not know where he would live if released. The district
court considered all of these f acts and reasonably concluded th at they weighed against
departure. Therefore, the district court did not abuse its dis cretion by finding that
Schluessler was not particularly amenable to probation.
Schluessler also argues that he is particularly unamenable to incarceration. He relies
heavily on State v. Wright, 310 N.W.2d 461 (Minn. 1981). In that case, the supreme court
upheld a district court’s dispos itional departure on the basis that the defendant “is
particularly unamenable to incarceration” because there was a strong reason to suspect that
the defendant would be victimized in prison and that both the defendant and society would
be better off if he were on probation. Id. at 462-63. Here, Schluessler makes a similar
argument—that he is likely to be victimized in prison and that he has mental health needs
that are better attended to outside of prison.
Wright does not demand reversal here. The supreme court in Wright affirmed a
district court’s decision to depart—it did not compel the district court to do so. Again, the
fact that a mitigating factor is present does not obligate a di strict court to exercise its
discretion to depart. Pegel, 795 N.W.2d at 253. Moreover, this case is distinguishable
from Wright in a key respect. In Wright, both the psychiatrist and the author of the
presentence investigation report opposed incarceration because of the defendant’s unique
needs. Wright, 310 N.W.2d at 462. That is not the case here. In this case, the author of
the presentence investigation report recommended imprisonment o n the basis of
Schluessler’s “well above average risk level” and “prior noncom pliance issues.” The
author of the psychosexual evaluation also recommended incarcer ation. The evaluation

8
concluded that Schluessler was not appropriate for outpatient t reatment and required a
structured and secured setting.
The supreme court in Wright emphasized that relying on the factor of being
unamenable to incarceration should be used carefully so as not to “loosely apply” the
standard. Id. Here, the probation officer a nd psychiatrist both recommended t h a t
Schluessler serve time in prison, despite his mental health issues. The district court did not
abuse its discretion in denying Schluessler’s motion to depart on this ground.
Downward Durational Departure
Schluessler next argues the district court abused its discretion in denying his motion
for a durational departure because his offense was less serious than the typical child-
pornography offense.
Substantial and compelling circ umstances supporting a downward durational
departure are those that “demons trate that the defendant’s cond uct was significantly . . .
less serious than that typically involved in the commission of the crime in question.” Rund,
896 N.W.2d at 532 (quotation om itted). “Durational departures may be justified by
offense-related reasons only.” Id. at 533. Again, the record supports the district court’s
determination that no such reasons exist. Nothing in the record supports the argument that
Schuessler’s actions were less serious than those surrounding t he typical child-
pornography offense. Schluessler argues that “the images [he] was convicted for
possessing were available on the internet in the same way as many other legal pornographic
images.” However, this is likel y true of many child-pornograph y images. The fact that
they are available on the internet, alongside legal images, doe s not lessen their illegality.

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The district court did not abuse its discretion by denying Schl uessler’s motion for a
downward durational departure.
Affirmed.