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This opinion will be unpublished and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
A18-1801

State of Minnesota,
Respondent,

vs.

Ramiro Alejandro Pena,
Appellant.

Filed August 19, 2019
Affirmed
Rodenberg, Judge

Mower County District Court
File No. 50-CR-17-1636

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

Kristen Nelsen, Mower County Atto rney, Scott K. Springer, Assis tant County Attorney,
Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Bjorkman, Ju dge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Ramiro Alejandro Pena directly appeals from the judgment of co nviction, arguing
that the district court abused its sentencing discretion in ref using to depart from the

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Minnesota Sentencing Guidelines . We affirm appellant’s sentenc e . H e a l s o r a i s e s a
number of claims in a pro se brief, which we decline to address because the record is
insufficient for appellate review.
FACTS
On July 8, 2017, police officers executed a search warrant at a house as part of
investigating an earlier shooting. Inside the house, officers recovered a loaded shotgun and
nine rounds of ammunition. Officers executed a second search warrant at the same home
on July 20, 2017, during which appellant was arrested. Appellant admitted that he owned
the shotgun recovered on July 8. He was charged with being a violent felon in possession
of a firearm under Minn. Stat. § 624.713, subd. 1(2) (2016).
On March 12, 2018, appellant pleaded guilty to the felon-in-po ssession charge and
admitted to possessing the shotgun that officers found in the h ome on July 8. Appellant
sought a downward dispositional departure from the sentencing g uidelines. The state
opposed the motion.
At sentencing, appellant argued that a dispositional departure w a s w a r r a n t e d
because he took respon sibility for his crime, showed remorse, h ad no mental illness that
would compromise treatment, did not engage in the use of force in connection with this
offense, had a low likelihood of reoffending, and did not have a chemical-dependency
issue. The district court found that appellant was not particu larly amenable to probation.
It considered appellant’s admission to the presentence investigator that he is a member of
a gang and that he does not intend to leave it. The district c ourt also considered that
appellant did not have any treatment needs and has no mental-he alth issues. The district

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court further considered appe llant’s acceptance of responsibili ty, but decided to “follow
the sentence at law here” and sentenced appellant to 60 months in prison.
This appeal followed.
D E C I S I O N
I. The district court’s sentencin g decision was within its discretion.
Appellant argues that the distric t court erred because it denie d his motion for a
downward dispositional departur e despite his “young age, cooper ation, acceptance of
responsibility, lack of criminal h istory, and willingness to ac cept treatment.” The state
argues that the district court did not abuse its sentencing discretion.1
A district court may depart from the sentencing guidelines if there are “identifiable,
substantial, and compelling” circu mstances that distinguish a c ase and overcome the
presumption of a guidelines sentence. State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014)
(quotation omitted). If such circumstances are present, then a district court “must exercise
its discretion and consider the factors.” State v. Kier, 678 N.W.2d 672, 677 (Minn. App.
2004), review denied ( M i n n . J u n e 1 5 , 2 0 0 4 ) . A d i s t rict court has broad discretion in
deciding whether to depart from the sentencing guidelines, State v. Kindem, 313 N.W.2d
6, 7 (Minn. 1981), and we will only reverse if there is “a clea r abuse of discretion,” State
v. Abrahamson, 758 N.W.2d 332, 337 (Minn. App. 2008), review denied (Minn. Mar. 31,
2009). “[T]he mere fact that a mitigating factor is present in a particular case does not

1 The state also argues that the d istrict court was prohibited f rom departing under Minn.
Stat. § 609.11, subd. 5(b) (2016). The state did not make this argument to the district court
and we therefore do not consider it. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

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obligate the court to place defendant on probation or impose a shorter term than the
presumptive term.” State v. Pegel, 795 N.W.2d 251, 253-54 (Minn. App. 2011) (quotation
omitted).
In considering a dispositional departure, the district court “c an focus more on the
defendant as an individual and on whether the presumptive sentence would be best for him
and for society.” State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983); Abrahamson, 758
N.W.2d at 337. The district court may consider the defendant’s “particular amenability to
individualized treatment in a probationary setting.” State v. Trog , 323 N.W.2d 28, 31
(Minn. 1982). A district court is not required to depart “from a presumptively executed
prison sentence, even if there is evidence in the record that t he defendant would be
amenable to probation.” State v. Olson, 765 N.W.2d 662, 663 (Minn. App. 2009).
Appellate courts generally will af firm the imposition of a pres umptive guidelines
sentence when it is clear that the district court evaluated the circumstances presented. State
v. Johnson , 831 N.W.2d 917, 925 (Minn. App. 2013), review denied ( M i n n . S e p t . 1 7 ,
2013). A district court is not required to explain its reasoning for imposing a presumptive
sentence “as long as the record sho ws the sentencing court care fully evaluated all the
testimony and information presented before making a determination.” State v. Van Ruler,
378 N.W.2d 77, 80-81 (Minn. App. 1985).
Appellant argues that the distric t court abused its discretion by declining to
dispositionally depart in light of relevant sentencing factors including his young age, lack
of prior adult felonies, coopera tion with police, family suppor t, and employment.

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Appellant does not contend that the district court failed to consider these factors, but argues
that the combined weight of these factors should have resulted in a dispositional departure.
In support of this argument, appellant cites to State v. Malinski where we “affirmed
a dispositional departure under le ss persuasive circumstances than those presented here.”
353 N.W.2d 207, 208 (Minn. App. 1984), review denied (Minn. Oct. 16, 1984). This
reliance is misplaced. In Malinski, we affirmed a district court’s grant of a dispositional
departure where the district cour t found that the defendant was particularly amenable to
probation. 353 N.W.2d at 210-11. Malinski, like this case, involved a district court making
findings about whether a defendant was particularly amenable to probation and, in light of
its findings, exercising its discretion on the question of whet her to dispositionally depart
from the sentencing guidelines. Id.
Here, the district court stated before sentencing that it had reviewed the sentencing
worksheet, presentence investigation report, rule 15 petition, motion for departure,
department of corrections report, and recent positive drug tests for alcohol and marijuana.
The district court also heard arguments regarding the requested downward dispositional
departure. Contrary to appellant’s argument, the district court found that appellant was not
particularly amenable to probation, considering that he did not have any treatment or
mental-health needs. The district court stated that it “acknowledge[d]” and “appreciate[d]
everything that [appellant is] telling me, I think [he] do[es] accept responsibility, I think
[he] do[es] understand the circumstance that [he is] in,” but ultimately imposed a guideline
sentence.

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It is clear from the record that the district court exercised i ts discretion. It heard
arguments from counsel, considered the record evidence before i t, and declined to depart
from the guidelines. A district court is not obligated to depa rt, even if mitigating
circumstances are present, so long as it carefully considers th e record evidence and
exercises its discretion. See State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984); Pegel, 795
N.W.2d at 254; Olson, 765 N.W.2d at 663; Van Ruler, 378 N.W.2d at 80-81. The district
court did so here.
We affirm appellant’s sentence.
II. We decline to address appe llant’s pro se arguments.
Appellant also filed a pro se supp lemental brief in which he raises multiple claims
of ineffective assistance of counsel.
To prevail on an ineffective-assi stance-of-counsel claim, an ap pellant must first
show that his counsel’s representation fell below an objective standard of reasonableness,
despite the “strong presumption that counsel’s conduct falls wi thin the wide range of
reasonable professional assistance.” Strickland v. Washington , 466 U.S. 668, 669, 689,
104 S. Ct. 2052, 2065 (1984); see State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). Next,
an appellant must demonstrate that there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694, 104 S. Ct. at 2089.
Typically, an ineffective-assistance-of-counsel claim is raised in a petition for
postconviction relief, rather than on direct appeal. State v. Gustafson , 610 N.W.2d 314,

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321 (Minn. 2000); State v. Ellis-Strong , 899 N.W.2d 531, 535 (Minn. App. 2017). “A
postconviction hearing provides the court with additional facts to explain the attorney’s
decisions, so as to properly consider whether a defense counsel ’s performance was
deficient.” Gustafson, 610 N.W.2d at 321 (quotation omitted). If an ineffective-assistance-
of-counsel claim can be determined on the basis of the trial record, then that claim must be
brought on the direct appeal. Ellis-Strong, 899 N.W.2d at 535. However, appellate courts
may decline to address an ineffec tive-assistance-of-counsel cla im if the record is
insufficient for appellate review. See Gustafson, 610 N.W.2d at 321; Ellis-Strong, 899
N.W.2d at 540-41.
Our review of the record before us reveals that the record is insufficiently developed
to address any of the claims appellant raises in his pro se brief. In the absence of a sufficient
record, “ any conclusions reached by this court as to whether [appellant’ s] attorney's
assistance was deficient would be pure speculation on our part. ” Gustafson, 610 N.W.2d
at 321. Accordingly, we decline to address these issues.
Affirmed.