State of Minnesota, Appellant,

This opinion will be unpublished and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
A18-1745

State of Minnesota,
Appellant,

vs.

Tevon Keenan Scott,
Respondent.

Filed March 25, 2019
Affirmed
Smith, Tracy M., Judge

Sherburne County District Court
File No. 71-CR-17-1162

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

Kathleen A. Heaney, Sherburne County Attorney, George R. Kennedy, Assistant County
Attorney, Elk River, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawle r, Assistant Public
Defender, St. Paul, Minnesota (for respondent)

Considered and decided by Halbr ooks, Presiding Judge; Larkin, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant State of Minnesota challenges the district court’s g rant of respondent
Tevon Keenan Scott’s motion for a downward dispositional depart ure in sentencing,

2
arguing that Scott is not particularly amenable to probation. Because the district court did
not abuse its discretion when it stayed execution of Scott’s sentence, we affirm.
FACTS
One morning in August 2017, the police responded to a report of a home invasion.
The victim-homeowner had a blood y nose and lip and a scratch on his face. He told the
responding officer that someone, later identified as Scott, approached the front door asking
for assistance with a vehicle. As the victim prepared to help, Scott disappeared. Soon
thereafter, the victim found three men, including Scott, in the home behind a closed
bedroom door. One of Scott’s accomplices hit the victim with the victim’s own rifle which
had been in the house, and the victim fought back. After a scuffle, the three men ran out of
the house, taking various coins and rings. The burglars drove away from the neighborhood,
abandoned the vehicle, and started to flee on foot. The police swiftly located the abandoned
vehicle and apprehended Scott and his accomplices. Scott was pl aced in jail, where he
voluntarily spoke to an investigating officer. He told the officer that, although he knew his
accomplices’ plan to burglarize the house and acted as a decoy, he did not attack the victim.
The state charged Scott with multiple counts of burglary and r obbery. In April 2018,
Scott pleaded guilty to first-degree burglary while committing assault, in exchange for the
dismissal of other counts. He admitted that one of his accomplices had hit the victim with
a rifle. Before the sentencing hearing, the district court rece i v e d a n d r e v i e w e d a
Presentence Investigation (PSI). At the sentencing hearing, the district court heard
testimony from Staci McGuire, the Sherburne County Release Adva nce Planning
Coordinator, who recommended a treatment program for Scott. In accordance with the

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PSI’s recommendation, the district court departed from the sent encing guidelines and
stayed execution of Scott’s 78-month sentence, finding Scott pa rticularly amenable to
probation.
The state appealed.
D E C I S I O N
Appellate courts “afford the [district] court great discretion in the imposition of
sentences and reverse sentencing decisions only for an abuse of that discretion.” State v.
Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). “The Minnesota
Sentencing Guidelines, however, limit the sentencing court’s di scretion by prescribing a
sentence or range of sentences that is presumed to be appropria te.” Id. at 308 (quotation
omitted). A district court must impose a guidelines sentence “unless there exist identifiable,
substantial, and compelling circ umstances that distinguish a ca se and overcome the
presumption in favor of the guidelines sentence.” Id. (quotation omitted). Substantial and
compelling circumstances justifyi ng a downward dispositional de parture include that
“[t]he offender is particularly amenable to probation.” Minn. S ent. Guidelines 2.D.3.a.(7)
(Supp. 2017). Factors relevant to determining if a defendant is particularly amenable to
probation include “the defendant’s age, his prior record, his r emorse, 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 abuses its discr etion in granting a downward d eparture “when the
reasons given are improper or inadequate and the record contain s insufficient evidence to
justify the departure.” State v. Rund , 896 N.W.2d 527, 533 (Minn . 2017). If the district

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court’s reasons for a departure “are legally permissible and fa ctually supported in the
record, the departure will be affirmed.” State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015)
(quotation omitted).
The district court decided that Scott was particularly amenabl e to probation based
on a number of factors, which we address in turn.1
A. Motivation to reform

The district court “focus[ed] m ost expressly on” the fact that , during his 358 days
of pretrial detention, Scott to ok “every opportunity to access programming, to deal with
issues, to seek out treatment, [and] to be productive.” Of cour se, mere profession by a
defendant of his willingness to “work on [the] issues” that prompted the offense cannot by
itself justify a downward d ispositional departure. State v. Johnson, 831 N.W.2d 917, 926
(Minn. App. 2013) (alteration in original), review denied (Minn. Sept. 17, 2013). But
particular amenability to probation may “be premised on timely observation of motive to
reform.” State v. Malinski , 353 N.W.2d 207, 210 (Minn. App. 1984) (citing State v.
Hennessy, 328 N.W.2d 442 (Minn. 1983)), review denied (Minn. Oct. 16, 1984).
The PSI notes that Scott had “attended several AA meetings, parenting classes, and
adult basic education classes while incarcerated.” He was also “hired as an inmate worker
but had to be removed due to his frequent transport.” The recor d provides factual support

1 The state argues that the district court “gave considerable we ight to the treatment
recommendation from McGuire.” Although the district court did eventually order Scott to
complete the treatment program recommended by McGuire, it did not rely upon McGuire’s
recommendation in finding Scott particularly amenable to probation. Therefore, the state’s
argument on this issue is irrelevant.

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for a “timely observation of motive to reform.” Malinski, 353 N.W.2d at 210. The state
does not dispute that Scott, based on the record, is motivated to rehabilitate himself, but it
argues that the invigorated motiv ation works against a probatio nary sentence. According
to the state, Scott must continue to be incarcerated because his “only success in any course
of treatment had been while he remained in custody.”
The district court found otherwi se, and the record supports the finding. The record
does not include evidence of failed treatment pre-incarceration; the PSI simply reports that
Scott “has never seen a therapist [and] imagines he would ‘shut down’” if he would see
one. Moreover, Scott ultimately expressed to the probation officer “a desire to remain sober
from illicit substances and decrease his alcohol consumption” and stated that “he is willing
to try individual therapy to address his mental health issues which cause his drinking.” As
the PSI notes, “the fact that [Scott] has not had the opportuni ty to address his substance
abuse or attend individual therapy in the community in the past” reasonably supports a stay
of his prison sentence, now that he has demonstrated a desire t o make use of resources
available to him. The district court’s reliance on motivation to reform is legally permissible
and factually supported.
B. Remorse
The district court also found that Scott was remorseful, based on his statements in
the PSI and in court. Scott indi cated to the probation officer that “he regrets the instant
offense” and that “he wishes he could do it all over again and make different choices.” In
court, Scott stated as follows:

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Though I cannot go back in time to change my wrongdoings, I
am deeply apologetic for the pain, suffering and fear that I have
caused to my victim and the trauma he had, to struggle through
life and . . . remembering of that day. I acted selfishly and i n
total disregard for another human being. There are not enough
words to erase what I have done to him and to his family and
friends. I am very sorry.

The state makes two objections. First, it argues that the dist rict court improperly
considered the fact that the victim was a stranger to Scott. Th e state argues that the
relationship between defendant and victim is an offense charact eristic and an offense
characteristic is not a permissible basis for a dispositional d eparture. But see State v.
Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (“A dispositional departure typically focuses
on characteristics of the defendant . . . . [A] durational departure must be based on . . . the
seriousness of the offense.” (first emphasis added)). But the district court discussed th e
relationship of the victim to Scott (and his accomplices) only in the context of determining
whether Scott was “truly remorseful.” And remorse is a permissible offender-related factor
to consider in granting a dispositional departure. Id.
Second, the state argues the district court did not address th e fact that, during the
PSI interview, “[Scott] did not r eflect on how the burglary aff ected the victim.” The PSI
does not say that Scott was not sorry for what happened to the victim. What the state is
pointing out is that the PSI does not say he was sorry, either. However, the PSI’s silence
on how Scott felt about the victim does not negate his explicit statements of apology at the
sentencing hearing. The distric t court found Scott’s apology de monstrative of sincere
remorse, and a “trial judge is in the best position to evaluate ” such a question. State v.

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Hough, 585 N.W.2d 393, 397 (Minn. 1998). The district court’s relian ce on remorse is
legally permissible and factually supported.
C. Cooperation
The district court found that Scott was cooperative because he ultimately made a
statement to the police in furtherance of the investigation. Th e court also gave him credit
for pleading guilty. The state challenges this finding, arguing that it is contrary to the
record.
The state points out that “[Sc ott] and the codefendants fled from the scene after the
burglary and attempted to evade l aw enforcement who were respon ding to the burglary”
and contends that Scott cooperated only “after he realized that the game was up.” But the
state cites no authority holding that a defendant’s cooperation cannot be considered in
sentencing unless it occurred before apprehension. And the record provides factual support
for finding that Scott cooperated. An investigating officer interviewed Scott in the jail on
the date of the offense. At the time, Scott was “fully aware he was not required to speak to
the officer and could request an attorney.” Scott nonetheless c hose to tell the officer what
happened earlier that day, because he thought “he was not ‘gonn a get blamed for this
[alone]’ [and] ‘this is not something I do.’” Scott spoke with the officer for over 30 minutes,
and none of his statements from the interview are being challen ged to be untruthful. The
district court’s reliance on cooperation is legally permissible and factually supported.
D. Appropriateness in court
Lastly, the district court found that Scott acted appropriatel y in court. The state does
not argue that this finding lacks factual support or that relia nce on it is legally

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impermissible. Because a “trial judge is in the best position t o evaluate the offender’s
conduct,” id., and nothing in the record suggests that the district court’s evaluation was
erroneous, this factor weighs in favor of probation.
E. Minn. Stat. § 152.152
On the departure report, one of the boxes that the district co urt checked to indicate
its reasons for departure stated: “Convicted of controlled substance offense, is particularly
amenable to probation based on adequate evidence that offender is chemically dependent
and has been accepted by, and ca n respond to, a treatment progr am in accordance with
Minn. Stat. § 152.152.” The stat e correctly notes, and Scott ag rees, that checking of the
box was erroneous because Scott was not convicted of a controlled-substance offense. The
mistake, however, is immaterial. “When the district court gives improper or inadequate
reasons for a downward departure, [appellate courts] ma y independently examine the
record to determine whether alternative grounds support the departure.” Rund, 896 N.W.2d
at 532-33. As discussed above, alternative grounds support the departure.
The state’s overarching argument is that the district court ga ve too much weight to
the factors supporting departure and not enough weight to other relevant factors—in other
words, even if the district court’s reasons are legally permiss ible and factually supported,
they provide insufficient support for a downward dispositional departure. The state relies
on Soto. In Soto, the district court stayed the defendant’s guidelines 12-year prison sentence
for first-degree criminal sexual conduct because it found the d efendant particularly
amenable to probation. 855 N.W.2d at 305, 307. The record supported “a few of the factors
that . . . have [been] recognized as potentially relevant” in d etermining a defendant’s

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particular amenability to probation. Id. at 312. However, the supreme court decided that
those factors, “individually and collectively,” did not suffici ently show Soto’s particular
amenability to probation relative to other defendants. Id. Based on that determination and
the brutality of Soto’s crime, th e supreme court held that the district court abused its
discretion by imposing an “inappropriate and disproportionate” sentence. Id. at 313-14.
We are not persuaded that Soto compels reversal here. As the supreme court
recognized, Soto is an “exceptional case” in which the district court abused it s broad
discretion. Id. at 314. The district court departed from a guidelines sentence of 12 years
and gave probation to a defenda nt who “committed a forcible and violent assault against
an intoxicated and thus particularly vulnerable person.” Id. at 313. “The assault lasted
approximately [two] hours and the victim was repeatedly subjected to multiple penetrations
by two men. Soto slapped the victim’s face, choked her, and cau sed several injuries.” Id.
Here, the stayed sentence was fo r 78 months. Although Scott’s a ccomplice hit the victim
with a rifle before they ran away, Scott did not personally commit acts of violence against
anyone. Most importantly, unlike Soto, Scott demonstrated strong motivation to reform.
Based on our “collective, collegial experience in reviewing a l arge number of
criminal appeals from all the judicial districts,” State v. Spain, 590 N.W.2d 85, 89 (Minn.
1999) (quotation omitted), we con clude that the district court’ s reasons are sufficient to
support the downward dispositional departure.
Affirmed.