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This opinion will be unpublished and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
A18-1442

State of Minnesota,
Respondent,

vs.

John Henry Cone-Wade,
Appellant.

Filed July 15, 2019
Affirmed
Klaphake, Judge*

Dakota County District Court
File Nos. 19HA-CR-16-2946; 19HA-CR-15-727; 19HA-CR-17-686

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

James C. Backstrom, D akota County Attorney, Anna Light, Assistant County Attorney,
Hastings, Minnesota (for respondent)

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

Considered and decided by Halbrooks, Presiding Judge; Slieter, Judge; and
Klaphake, 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
KLAPHAKE, Judge
Appellant John Henry Cone-Wade challenges the district court’s sentencing order,
arguing that a dispositional or downward durational departure was warranted because his
offenses were less serious than typical and he is particularly amenable to probation.
Appellant argues in the alterative that he is entitled to resentencing. Because the district
court did not abuse its discretion when it failed to find substantial and compelling rea sons
to depart from the sentencing guidelines and because there is no error that warrants
resentencing, we affirm.
D E C I S I O N
In this direct appeal from conviction s of third-degree drug sale, driving while
impaired or intoxicated (DWI)-test refusal, and unlawful possession of a firearm, appellant
argues that the district court erred in denying his motion s for a dispositional or durational
downward sentencing departure for his DWI and firearms convictions.
This court “afford[s] the [district] court great discretion in the imposition of
sentences and reverse[s] sentencing decisions only for an abuse of that discretion.” State
v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). The district court may
depart from the Minnesota Sentencing Guidelines only when “substantial and compelling
circumstances are present.” Id. at 308. It is only in rare cases where an appellate court will
reverse the imposition of a presumptive sentence. State v. Pegel , 795 N.W .2d 251, 253
(Minn. App. 2011). Thus, this court “will not ordinarily interfere with a sentence falling
within the presumptive sentence range, either dispositionally or durationally, even if there

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are grounds that would justify departure.” State v. Bertsch, 707 N.W.2d 660, 668 (Minn.
2006) (quotation omitted).
The district court sentenced appellant to a 62 -month bottom-of-the-box guidelines
sentence, followed by five years of conditional release on the DWI case, and a 60 -month
sentence on the firearm case . In denying appellant’s departure motions, the district court
stated that it “ [had] to balance what the law compels [it] to consider, which is the crimes
that [appellant] committed . . . and [t]o recognize the work that [appellant has] done and to
recognize the community’s need for accountability and safety. And the crimes that
[appellant] committed are serious . . . [d]rugs, alcohol, guns.” The district court further
indicated that appellant needs more time to address the significant issues in his life, and
that after those issues are addressed, “then community safety gets addressed because the
violence goes down and the anger goes down.”
The record indicates that the district court considered appellant’s arguments that
favored a departure, but concluded that there were not substantial and compelling reasons
to depart and that public safety would best be served by sentencing appellant in accordance
with the sentencing guidelines. Consequently, this is not one of those rare cases w here an
appellate court will reverse the imposition of a presumptive sentence. See Pegel , 795
N.W.2d at 253.
Appellant argues, in the alternative, that he is still entitled to resent encing because
the district court erroneously believed that he had a prior felony possession of a firearm
offense, which would have subjected him to a nondiscretional 60-month prison term. See
Minn. Stat. § 609.11, subd. 8(b) (2016) (stating that the court must sentence a defendant to

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the mandatory minimum sentence established in section 609.11 [of 60 -months] if the
defendant was previously convicted of an offense listed in subdivision 9 in which the
defendant possessed a firearm); Minn. Stat. § 260B.245, subd.1(a) (2016) (An “[extended
jurisdiction juvenile (EJJ)] conviction shall be treated in the same manner as an adult felony
criminal conviction for purposes of the Sentencing Guidelines.” ). But appellant was still
subject to a mandatory 60 -month prison sentence , regardless of whether he had a prior
qualifying offense, because he was convicted under Minn. Stat. 624.713, subd. 1(2) (2016).
See Minn. Stat. 609.11, subd. 5(b) (2016) (“Any defendant convicted of violating section[ ]
624.713 subd. 1(2), shall be committed to the commissioner of corrections for not less than
five years [60 months], nor more than the maximum sentence provided by law.).
Moreover, section 609.11, subd. 8(a) , provides that only the prose cutor or the
district court may move to depart from the mandatory minimum sentences established by
section 609.11, subd. 5(b). Because there is no evidence in the record suggesting that the
prosecutor moved to depart on appellant’s firearm offense, and because the district court
specifically failed to find substantial and compelling circumstances warranting a departure,
it cannot be said that the district court e rred, even if it believed that appellant had a prior
felony possession of a firearm offense EJJ conviction.1
Affirmed.

1 We have reviewed the record and cannot find evidence tending to prove one way or the
other that the district court believed appellant was designated EJJ on the prior felony
possession of a firearm offense.