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This opinion will be unpublished and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
A18-1363

State of Minnesota,
Respondent,

vs.

Anthony Scott David Auginaush,
Appellant.

Filed July 29, 2019
Affirmed
Johnson, Judge

Clearwater County District Court
File No. 15-CR-18-33

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

Alan G. Rogalla, Clearwater County Attorney, Heather L. Labat, Assistant County
Attorney, Bagley, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Anthony Scott David A uginaush pleaded guilty to first-degree criminal sexual
conduct pursuant to a plea agreement in which the state agreed to recommend a downward

2
dispositional departure. The district court rejected the recommendation and imposed a
presumptive guidelines sentence. We conclude that the district court did not err by denying
Auginaush’s motion for a downward dispositional departure. Therefore, we affirm.
FACTS
In December 2 017, when Auginaush was 22 years old, the state filed a juvenile -
delinquency petition that charged him with one count of first -degree criminal sexual
conduct, in violation of Minn. Stat. § 609.342, subd. 1(g) (2012). The petition alleged that,
between June and September of 2013, when Auginaush was 17 years old, he engaged in
sexual penetration of a child who was less than 16 years old. The petition further alleged
that Auginaush had sexually abused the same child and two other children on other
occasions but did not include any charges based on the other incidents. The state also filed
a motion to certify the case for prosecution of Auginaush as an adult in district court.
In January 2018, Auginaush waived certification proceedings and agreed to be
prosecuted as an adult. The state filed a criminal complaint alleg ing the same facts that
had been alleged in the ju venile-delinquency petition. The state and Auginaush entered
into a plea agreement in which Auginaush agreed to plead guilty in exchange for the state’s
recommendation of a stay of execution and probation and the state’s promise that it would
not bring ad ditional charges based on the reported but uncharged conduct. Auginaush
signed a plea petition in which he stipulated to the facts alleged in the petition and the
complaint. The district court deferred acceptance of the plea and ordered a pre-sentence
investigation (PSI) and a psychosexual evaluation. Auginaush informed the district court
that he would move for a downward dispositional departure at sentencing.

3
In February 2018, a licensed psychologist completed a psychosexual evaluation of
Auginaush. In March 2018, a probation agent completed a PSI of Auginaush. Because
both documents are confidential, we will not discuss their contents in this opinion.
At sentencing in May 2018, Auginaush asked the district court to adopt the parties’
joint recommendation of a downward dispositional departure. Auginaush argued that he
was amenable to probation because of his “young ag e,” “family history,” and “lack of
criminal history.” Auginaush also asked the district court to depart on the ground that he
had been victimized as a child. The state submitted written victim-impact statements from
the complainant, the complainant’s mother, a victim of the uncharged conduct, and the
father of another victim of uncharged conduct. The state noted that the victims and th eir
families “would like the Court to impose a prison sentence” but asked the district court to
follow the parties’ joint recommendation of probation.
The district court accepted Auginaush’s guilty plea and imposed a sentence of 144
months of imprisonment, which is the shortest sentence within the presumptive guidelines
range. Auginaush appeals.
D E C I S I O N
Auginaush argues that the district court erred by denying his motion for a downward
dispositional departure. The state did not file a responsive brief.
The Minnesota Sentencing Guidelines generally provide for presumptive sentences
for felony offenses. Minn. Sent. Guidelines 2.C (2012). For any particular offense, the
presumptive sentence is “presumed to be appropriate for all typical cases sharing criminal
history and offense severity characteristics.” Minn. Sent. Guidelines 1.B.12 (2012).

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Accordingly, a district court “must pronounce a sentence within the applicable
[presumptive] range unless there exist identifiable, substantial, and compelling
circumstances to support a [departure].” Minn. Sent. Guidelines 2.D.1 (2012). 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
(2012).
If a defendant requests a downward dispositional departure, a district court first must
determine whether “‘mitigating circumstances are present’” and, 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),
review denied (Minn. Apr. 16, 2002). “[T]he mere fact that a mitigating factor is presen t
. . . 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. If the district court does not order a
departure, the district court is not required to state reasons for imposing a presumptive

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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 or is against logic and the facts in the record.” State v.
Guzman, 892 N.W.2d 801, 810 (Minn. 2017 ); see also 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 Soto, 855 N.W.2d at 308 n.1.
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)). Only a “rare case” will warrant reversal of a district court’s refusal to
depart from the sentencing guidelines. State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981 );
see also State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
A.
Auginaush first contends that the district court should have granted his motion on
the ground that his culpability is mitigated. Among the reasons for a downward departure

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from the sentencing guidelines are “substantial grounds . . . that tend to excuse or mitigate
the offender’s culpability, although not amounting to a defense.” Minn. Sent. Guidelines
2.D.3.a(5).
Auginaush focuses on his young age at the time of the offense and his own
childhood experience of being a victim of abuse. He cites several opinions in which the
United States Supreme Court considered constitutional limitations on the sentencing of
juvenile offenders. See Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012) (holding
that Eighth Amendment prohibits mandatory life imprisonment without parole for juvenile
offenders); Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010) (holding that Eighth
Amendment prohibits sentences of life without parole for juvenile s who commit non -
homicide offenses); Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005) (holding that
Eighth Amendment prohibits execution of offenders who were under 18 years old at time
of offense). In those cases, the Supreme Court acknowledged developments in psychology
and neuroscience that distinguish juvenile brains from adult brains and reasoned that
“children are constitutionally different from adults for purposes of sentencing” and that
“the distinctive attributes of youth diminish the penological justifications for imposing the
harshest sentences on juvenile offenders, even when they commit terrible crimes.” Miller,
567 U.S. at 471 -72, 132 S. Ct. at 2464 -65 (discussing Graham and Roper). Auginaush
asserts that a probationary sentence in his case “is consistent with Supreme Court precedent
based on extensive study of adolescent brain development and their capacity for change.”
The Supreme Court caselaw cited by Auginaush is distinguishable. Those opinions
arose from cases in which juvenile offenders received a death sentence or life sentences

7
without the possibility of parole. T hose opinions do not stand for the proposition that a
person who committed an offense as a juvenile should receive a probationary sentence
rather than a prison sente nce based on the lesser culpability of juveniles. Although
Auginaush was 17 years old at the time of the charged conduct, the district court’s denial
of a downward dispositional departure based on Auginaush’s age at the time of the offense
is not prohibited by law.
Even assuming that Auginaush’s young age and his own victimization are
substantial and compelling circumstances, a district court has discretion to depart or not
depart from a presumptive sentence, and the mere presence of a mitigating factor does not
obligate the district court to place a defendant on probation. See Pegel, 795 N.W.2d at 253.
Auginaush asserts that the district court abused its discretion by relying on individual
statements in the psychosexual evaluation report rather than the psychologist’s ultimate
recommendation. We disagree with Auginaush’s characterization of the conclusion of the
psychosexual evaluation, which did not recommend probation. In any event, the district
court appears to have read and considered the entire evaluation and was not required to
minimize or ignore those portions that do not support a departure. See id. at 253-54. In
addition, Auginaush’s argument that the district court failed to consider the dispositions in
other juvenile criminal-sexual-conduct cases is not compelling given that he did not present
that argument to the district court. Accordingly, it was within the district court’s discretion
to impose a presumptive sentence based on the evidence in the record.
Thus, the district court did not err by not granting Auginaush’s motion on the ground
that his culpability is mitigated.

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B.
Auginaush also contends that the district court should have granted his motion on
the ground that he is particularly amenable to probation. At the time of Auginaush’s
offense, being “particularly amenable to probation” was not specifically enumerated in the
non-exclusive list of mitigating factors in the sentencing guidelines but was recognized by
caselaw as a valid ground for a downward departure. See State v. Wenthold, 427 N.W.2d
10, 11 (Minn. App. 1988) , review denied (Minn. Sept. 16, 1988) . Particular amenability
to probation was incorporated into the sentencing guidelines two years after Auginaush’s
offense. See Minn. Sent. Guidelines 2.D.3.a.7 (2015).
The requirement 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 t o
justify a departure.” Soto, 855 N.W.2d at 309 (quoting Minn. Sent. Guidelines 2.D.1). In
determining whether a defendant is particularly amenable to probation so as to justify a
downward dispositional departure, a district court may consider, among oth er things, “the
defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court,
and the support of friends 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.
After considering the parties’ recommendation and the evidence before it, the
district court concluded that particular amenability to probation was not a basis for a
downward departure in this case. The district court stated:

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[A]lthough I note there is some evidence of record that
arguably would support a departure, there is likewise evidence
that cuts the other way. [The psychosexual] evaluator also
noted at p oints in his report a lack of remorse, severe lack of
accountability. And some of the testing suggested that Mr.
Auginaush was not in fact motivated for treatment. So, I
acknowledge that there are some facts that aug ur towards a
basis for a departure, bu t there are also facts that aug ur the
other way. I simply do not find a basis for a departure on the
record.

Auginaush contends that the district court erred because the Trog factors support a
probationary sentence. He points to his “young age, lack of criminal history, amenability
to treatment, acceptance of responsibility, attitude and cooperation, family support, and the
sentences of other teens who sexually abuse family members” as evidence that he is
particularly amenable. He highlights a finding in the psychosexual evaluation report that
he is amenable to treatment, his cooperation with police, his waiver of adult certification
proceedings and guilty plea, and his family support.
Auginaush is correct that the evide ntiary record includes some evidence indicating
that he is amenable to probation. Both the psychosexual evaluation report and PSI report
contain some findings in Auginaush’s favor. But neither document compels the conclusion
that Auginaush is particularly amenable to probation. Furthermore, the record also
contains indications that Auginaush is not amenable to probation. Although the district
court did not discuss each of the Trog factors on the record, there is no indication that the
district court did not consider all of the evidence before it. See Pegel, 795 N.W.2d at 254.
Moreover, the fact that the state and Auginaush jointly recommended probation does not
mean that the district court abused its discretion by not adopting the recommendation.

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Thus, the district court did not err by not granting Auginaush’s motion on the ground
that he is particularly amenable to probation.
In sum, the district court did not err by denying Auginaush’s motion for a downward
dispositional departure.
Affirmed.