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This opinion will be unpublished and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
A18-1544

State of Minnesota,
Respondent,

vs.

Cornelius Johnson,
Appellant.

Filed June 17, 2019
Affirmed
Florey, Judge

Stearns County District Court
File Nos. 73-CR-18-2298; 73-CR-18-2619

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

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

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

Considered and decided by Florey, Presiding Judge; Connolly, Judge; and
Bjorkman, 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
Appellant Cornelius Johnson argues that, because he is particularly amenable to
probation, the district court abused its discretion by denying his motion for a downward
dispositional departure and imposing, instead, a presumptive sentence. We affirm.
FACTS
On the night of March 16, 2018, officers from the Sartell Police Department were
dispatched to a reported domestic assault. When officers arrived, J.K.M., appellant’s
girlfriend at the time, was visibly upset and crying. J.K.M. reported to officers that
appellant, who s he believed had been drinking that night, had assaulted her after she
discovered that he was cheating on her. She reported that she instructed appellant to leave
her residence, but he refused.
J.K.M. reported to officers that appellant grabbed her by her throat and pushed her
against the wall. Despite telling appellant to leave several times, J.K.M. reported that he
continued to assault her, including slapping her face and hitting her head. J.K.M. reported
that she observed blood coming from her nose. Officers observed a small amount of blood
behind J.K.M.’s ear, as well as red marks on her left arm. Officers also observed blood on
appellant’s shirt and a mirror hanging crookedly in the hallway.
Officers spoke with A.M., J.K.M.’s 8 -year-old son, who w itnessed the assault.
A.M. reported that he heard appellant and J.K.M. yelling at each other in the entryway and
in the garage. He reported that he went to the top of the stairs and observed appellant grab
J.K.M.’s wrists and push her against the wall. He heard J.K.M. say, “Get off of me,” and

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“Stop hitting me.” A.M. reported that appellant and J.K.M. then went downstairs , and he
continued to hear banging and yelling.
Appellant denied touching J.K.M. He reported that she made her own nose bleed
and th en wiped her blood on his shirt. At the time of the incident, appell ant had two
qualifying domestic-violence-related-offense convictions from 2015.
The state charged appellant with two felony counts of domestic assault. See Minn.
Stat. § 609.2242, subd. 4 (2016). That same day, the district court issued a Domestic Abuse
No Contact Order (DANCO) prohibiting appellant from having contact with J.K.M. While
in jail, and in violation of the DANCO, appellant placed a phone call to J.K.M. The state
charged appellant with one felony count of violating a DANCO. See Minn. Stat. § 629.75,
subd. 2(d)(1) (2016). In both cases, the state filed a notice of its intention to seek an
aggravated durational departure.
On May 18, 2018, appellant entered guilty pleas in both cases. In the domestic-
assault case, he pleaded guilty to count two, and in the DANCO case, he pleaded guilty to
the sole count of violating the DANCO. In exchange for appellant’s guilty pleas, count
one in the domestic-assault case was dismissed; the state agreed to argue for no more than
39 months’ imprisonment, concurrent on both case files; the state agreed to dismiss its
motions for an aggravated durational departure; and it agreed to not charge any outstanding
offenses as of th e date of the plea hearing. The parties also agreed that appellant could
seek a downward dispositional departure asking the district court to both place him on
probation and allow him to participate in domestic-violence programming.

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The following month , appellant’s presentence investigation (PSI) reports for both
cases were filed. The reports concluded that appellant lacked amenability to probation
supervision and recommended 39 months’ imprisonment. The reports contained a
summary of appellant’s criminal history, including “at least 31 convictions on his record,”
18 of which were felony convictions. In the domestic -assault case, appellant had 12
criminal-history points, with a presumptive commit of 29 -39 months, and in the DANCO
case, he had 13 criminal-history points, with a presumptive commit of 29-39 months.
The reports noted that appellant, age 44 at the time of the presentence investigation,
had a criminal history that began “as early as the age of 12 ,” and that it appeared “ his
criminal activity was essentially constant when he wasn’t incarcerated.” The reports found
that “much of his criminal activity involv[ed] drugs and alcohol.”
In the risk-assessment categories evaluating appellant’s criminal history, education
and emp loyment, relationships with family and friends, alcohol and drug use, and
involvement with prosocial activities, appellant scored between “high risk” and “very high
risk.” On the domestic -abuse risk assessment, appellant scored a seven, placing him “in
the highest risk category” of which only “6 [percent] of men f[a]ll.”
Both of the PSI reports acknowledged appellant’s troubled upbringing. The reports
stated that appellant had “reported growing up in a chaotic environment with his parents
being regular crack cocaine users who engaged in acts of domestic violence in the home,”
that appellant “described being neglected,” “being placed in group homes as early as the
age of 12,” and “never wanting to leave the group homes when he was close to being
discharged because he didn’t want to return home.”

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The PSI reports also acknowledged appellant’s strengths. The reports found that
appellant showed “some self-awareness that he lack[ed] the skills to adequately adjust to
the real world,” and that appellant was “respectful” during the meetings with the probation
officer. However, the PSI reports also found that it was “apparent” that appella nt was
“most motivated when he [wa] s in significant legal trouble,” and that appellant’s version
of the offense did not “match the injuries that [J.K.M.] had or the statements made by
[J.K.M.] and [her] young son.”
The PSI reports found that appellant had been “placed on community supervision
several times in the past without any meaningful amount of behavior change.” The reports
noted that appellant had recently been released from prison to a work -release program in
June 2017, and that his supervised-release was revoked in early January 2018. He was then
released to supervision , again, in late January 2018, but thereafter fa iled to report for
chemical testing three times in February 2018, and, on March 16, 2018, appellant assaulted
J.K.M. Additionally, the PSI reports noted that appellant committed the two felony
offenses while on supervised release for first -degree burglary , an offense that was also
domestic-violence related.
The reports concluded that there was “no assurance that [appellant], if given
probation, would abide by any no contact order,” and that, while “[p]rison time most likely
[would] not rehabilitate him,” a ppellant was “deserving of prison time for his actions.”
Based on appellant’s criminal history and repeated patterns of probation violations, the
reports found that there were no “substantial and compelling reasons to depart from

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Minnesota Sentencing Guid elines” and “recommended that [appellant] be committed to
the custody of the Commissioner of Corrections for a period of 39 months.”
Following the release of the PSI reports, a sentencing hearing was held. At the
hearing, appellant acknowledged his history of criminal activity, but stated that most of his
behavior stemmed from substance abuse and asked that the district court “give [him] a
second chance.”
The district court denied appellant’s motion for a downward dispositional departure
and sentenced him to an executed prison term of 39 months for both convictions, to be
served concurrently. The district court acknowledged appellant’s remorse for his actions,
but ultimately found that the law did not allow for it to grant his motion. The district court
stated:
I love your answers, and when I read through the PSI the first
time I really liked the answers you gave. I really hope they’re
genuine. When I got to the end and I read the agent’s rationale,
then I went back to the top again because I wanted to look at
the dates because that—a lot of times as a judge the dates can
get by me pretty easily. That’s where I got hung up. So the
fact that you were on supervised release when these happened
and that you’d only been out of prison for, like, two months
made it really hard, you know . That’s where it’s —it’s really
hard to find that there are substantial and compelling reasons
you’re amenable to pro bation when you committed two
felonies while on parole , so that’s where I came down is —I
truly hope that you genuinely want to make change . . . . I
thought about figuring out if I run them consecutively and I put
more time over your head, would that give me more leverage
to make—to force you to make the change, but then I came
back to what the law requires of me and I don’t know how I
can find substantial and compelling reasons to say you’re
amenable—well, I have to find you’re particularly amenable—
when this happened while you’re on parole. So I have to send
you to prison is the short version. I do wish you luck and I do

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hope that you can make those changes, but I like to be honest
with people in terms of my thought process.

This appeal followed.
D E C I S I O N
I. The district court did not abuse its discretion by denying appellant’s motion
for a downward dispositional departure.

“In sentencing, district courts have a great deal of discretion.” State v. Soto , 855
N.W.2d 303, 305 (Minn. 2014). The district court’s discretion is limited, however, by the
Minnesota Sentencing Guidelines , which prescribe a sentence that is “presumed to be
appropriate.” Minn. Sent. Guidelines 2.D.1 (Supp. 2017); see Soto, 855 N.W.2d at 308. A
district court may exercise its discretion to depart from the guidelines only if there are
“identifiable, substantial, and compelling circumstances that distinguish a case and
overcome the presumption in favor of the guidelines sentences.” Soto, 855 N.W.2d at 308
(quotation omitted); see also State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (“In fact, a
sentencing court has no discretion to depart from the sentencing guidelines unless
aggravating or mitigating factors are present.”).
Substantial and compe lling circumstances justifying a downward dispositional
departure include that “[t]he offender is particularly amenable to probation.” Minn. Sent.
Guidelines 2.D.3.a.(7) (Supp. 2017). In determining whether a defendant is particularly
amenable to probati on, district courts consider factors such as “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).

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On appeal, this court reviews a district court’s sentencing decision for an abuse of
discretion. Soto, 855 N.W.2d at 307-08. An appellate court cannot simply substitute its
judgment for that of the district court, and, absent a clear abuse of discretion, appellate
courts “generally will not interfere.” State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); see
also State v. Van Ruler, 378 N.W.2d 77, 80-81 (Minn. App. 1985) (“The reviewing court
may not interfere with the sentencing court’s exercise of discretion, as long as the re cord
shows the sentencing court carefully evaluated all the testimony and information presented
before making a determination [to impose the presumptive sentence].”).
Only in a “rare” case will an appellate court reverse a sentencing court’s refusal to
depart. Kindem, 313 N.W.2d at 7. Moreover, “[t]his court will not generally review a
district court’s exercise of its discretion to sentence a defendant when the sentence imposed
is within the presumptive guidelines range.” State v. Delk, 781 N.W.2d 426, 4 28 (Minn.
App. 2010), review denied (Minn. July 20, 2010).
Appellant argues that the district court abused its discretion by denying his motion
for a downward dispositional departure. While appellant acknowledges that he has a
significant criminal histor y, he argues that the best interests of the community weigh in
favor of a probationary sentence—specifically, a probationary sentence wherein he would
participate in a program designed for repeat domestic -violence offenders. He argues that
his criminal re cord demonstrates that “incarceration has not helped him remain law
abiding.”
For support, appellant cites to State v. Hennessy, 328 N.W.2d 442, 443 (Minn. 1983)
(affirming district court’s dispositional departure in presumptive commit case), and State

9
v. Malinski, 353 N.W.2d 207, 211 (Minn. App. 1984) (concluding district court did not err
in granting defendant’s motion for dispositional departure), review denied (Minn. Oct. 16,
1984). Appellant argues that both cases “make plain” that “amenabili ty to probation may
be premised on a motive to reform, irrespective of criminal history.”
The district court’s denial of appellant’s motion was not an abuse of discretion.
First, the district court’s imposition of an executed sentence of 39 months was wit hin the
presumptive guidelines range. 1 See Delk, 781 N.W.2d at 428. Second, the sentencing
judge carefully evaluated all of the testimony and information before it made its
determination. See Van Ruler, 378 N.W.2d at 80-81. Indeed, the district court expressed
the time it spent reviewing the PSI reports and the PSI recommendations and that it
“thought about figuring out” a sentencing scheme that would “put more time over
[appellant’s] head” to give the court “more leverage. ” However, as the district court
articulated to appellant, ultimately, it could not find “substantial and compelling reasons”
to warrant a departure.
And third, the record supports, in light of the factors enunciated in Trog—including
the defendant’s age, prior record, remorse, cooperation, attitude in court, and relationships
with friends and family —the district court’s finding that appellant was not particu larly

1 With offense -severity levels of 4, and a criminal -history score of 12, and then 13,
appellant’s presumptive sentence was between 29-39 months. See Minn. Sent. Guidelines
4.A. (Supp. 2017) (showing a presumptive sentence for a severity-level offense of 4 and a
criminal-history score of 6 or more to be bet ween 26-36 months); Minn. Sent. Guidelines
2.B.2.c. (Supp. 2017) (“An additional three months must be added to the duration of the
appropriate cell time, which then becomes the presumptive duration, when: (1) a custody
status point is assigned; and (2) the offender’s total Criminal History Score exceeds the
maximum score on the applicable Grid (i.e., 7 or more).”).

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amenable to probation. See Trog, 323 N.W.2d at 31. As the reports noted, appellant was
44 years old at the time of the presentence investigation , and, since the age of 12, “his
criminal activity [has been] essentially constant when he [has not been] incarcerated.”
Appellant has an extensive criminal record, including at least 31 convictions, 18 of which
are felonies, and many of which are violent offenses. Appellant received a criminal-history
score of 12 in the domestic-assault case, and a 13 in the DANCO case. Further, appellant
scored between “high risk” and “ve ry high risk” in the PSI repo rts’ risk-assessment
categories evaluating his criminal history, education and employment, relationships with
family and friends, alcohol and drug use, and involvement with prosocial activities. And,
on the domestic -abuse risk assessment, appellant fell in the “highest risk category” of
which only “6 [percent] of men f[a]ll.”
Appellant uses his extensive criminal history to support his contention that he is “a
perfect candidate” for repeat -offender domestic-violence programming . However,
appellant’s violent criminal history and continuous disregard for the law—including when
he is on supervised -release or confined —demonstrate that the best interests of the
community weigh in favor of incarceration.
Moreover, a defendant’s mere suitability for community-based programming does
not reach the standard necessary to warrant a dispositional departure. “A dispositional
departure typically focuses on characteristics of the defendant that show whether the
defendant is particularly suitable for indi vidualized treatment in a probationary setting.”
See State v. Solberg , 882 N.W.2d 618, 623 (Minn. 2016) (emphasis added) (quotation
omitted); see also Soto, 855 N.W.2d at 309 (“By requiring a defendant to be particularly

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amenable to probation, therefore, we ensure that the defendant’s amenability to probation
distinguishes the defendant from most others and truly presents the substantial and
compelling circumstances that are necessary to justify a departure.” (emphasis in original)
(quotation omitted)). The district court acknowledged this threshold in its statement: “I
don’t know how I can find substantial and compelling reasons to say you’re amenable —
well, I have to find you’re particularly amenable—when this happened while you’re on
parole.” (Emphasis added.)
With regard to the cooperation factor, the record establishes that, despite violating
the DANCO, appellant was cooperative throughout the court proceedings. Similarly, with
regard to attitude, the record does not indicate that appellant was anything but respectful in
court. With regard to the remorse factor, however, the PSI reports questioned appellant’s
sincerity. While the reports noted that appellant felt “[s]hame” when looking back at the
domestic assault, the reports concluded, “It is apparent that [appellant] is most motivated
when he is in significant legal trouble versus exhibiting any proactive internal motivation
to address his issues before he engages in the criminal behavior that results in arrest and
incarceration.”
The PSI reports found that appellant’s relationships with and lack of support from
friends and family were factors that added to his risk of reoffending. The reports noted
that appellant reported “having zero friends that are crime free and at least ‘3-5’ of his close
friends have been arrested for drug related offenses.” The PSI reports also noted that
appellant “has five children, all of them currently residing in Georgia,” and that appellant
had “ played a very limited role in his children’s life.” Further, the reports found that

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appellant had a “history of domestic violence within his relationships with women.” The
Trog factors do not weigh in appellant’s favor.
Lastly, we are not persuaded by appellant’s proposition that, irrespective of his
criminal record, “amenability to probation may be premised on a motive to reform.” And
his reliance on Hennessy and Malinski to support his proposition is misplaced. Hennessy
involved a 24 -year-old nonviolent offender who had “a substantial record of nonviolent,
nonaggressive criminal conduct.” 328 N.W.2d at 442. Similarly, Malinski involved a 27-
year-old nonviolent offender who, “despite his long criminal history,” had “not physically
harmed anyone” and “present[ed] no danger if given a chance to contribute to society.”
353 N.W.2d at 209. Appellant’s significant criminal history, involving multiple violent
offenses, and spanning from the age of 12 up until his latest offen se at the age of 44, does
not compare to either of the aforementioned defendants. As the PSI reports indicated, the
best interests of the community weigh in favor of placing appe llant in temporary
confinement, and opportunities for rehabilitation will remain available for appellant in the
community when he is released from custody.
Affirmed.