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This opinion will be unpublished and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
A19-0026

State of Minnesota,
Respondent,

vs.

Michael Alan Bunnell,
Appellant.

Filed November 4, 2019
Affirmed
Smith, Tracy M., Judge

Olmsted County District Court
File No. 55-CR-17-7699

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

Mark A. Ostrem, Olmsted County Attorney, Je nnifer D. Plante, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

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

Considered and decided by Reyes, Pres iding Judge; Smith, Tracy M., Judge; and
Peterson, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment 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
SMITH, TRACY M., Judge
On appeal from his conviction for a sec ond-degree controlled-substance crime,
appellant argues that the district court abus ed its discretion by denying his motion for a
downward dispositional departure from th e presumptive prison sentence under the
Minnesota Sentencing Guidelines. We affirm.
FACTS
Appellant Michael Alan Bunnell was found with methamphetamines in two separate
contacts with law enforcement in November 2 017. As a result, the state charged Bunnell
with three counts: (1) second-degree controlled-substance crime (intent to sell), (2) third-
degree controlled-substance crime (possession ), and (3) fleeing an officer in a motor
vehicle.
In March 2018, pursuant to a plea agreem ent, Bunnell pleaded guilty to the first
count and the state dismissed the remaining co unts. As part of the agreement, the state
agreed to recommend a downward dispositiona l departure if Bunnell could “demonstrate
60 days of uninterrupted residential treatment during which time he is making a good faith
effort and meets program requi rements.” The district court ordered Bunnell to cooperate
with a presentence investigation (PSI).
Bunnell failed to appear for his PSI interview. In June, a bench warrant was issued,
and he was arrested. Bunnell stayed in custody until July 26, when he started an inpatient
treatment program at the Beauterre Recovery Institute in Owatonn a. Bunnell completed
the treatment program 28 days later, on August 23. The record does not indicate that

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Bunnell took part in any other treatment program. Seven days after completing the
Beauterre program, Bunnell tested positive for methamphetamine.
Several days later, on September 3, Bunnell was the driver in a car crash in which
he and his girlfriend were in jured. On September 26, Bunnell failed to appear for his
original sentencing hearing, and his lawyer st ated that Bunnell’s family had reported that
he had fallen out of bed and been taken to the hospital. Bunnell appeared for a hearing two
days later, and his sentencing was rescheduled to October 8.
At the sentencing hearing, both Bunne ll and the state recommended a downward
dispositional departure, arguing that Bunnell ha d complied with the material terms of the
plea agreement. The district co urt declined to depart from the sentencing guidelines and
imposed an executed sentence of 84 months in prison.
This appeal follows.
D E C I S I O N
Bunnell argues that the district court abused its discretion by denying his motion for
a downward dispositional depa rture and imposing an 84-m onth executed sentence under
the sentencing guidelines.
A sentence or range of sentences pres cribed under the Minnesota Sentencing
Guidelines “is presumed to be appropriate.” State v. Soto , 855 N.W.2d 303 , 308 (Minn.
2014) (quotation omitted). A district court may depart from the presumptively appropriate
guidelines sentence only if “identifiable, s ubstantial, and compelling circumstances”
warrant doing so. State v. Solberg , 882 N.W.2d 618, 623 (Minn. 2016). To maintain

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uniformity and proportionality in sentencing, departures from the guidelines sentence are
discouraged. State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017).
If a defendant requests a downward dispositi onal departure, a district court must
determine whether “mitigating circumstances are present” and, if so, whether “those
circumstances provide a substantial and co mpelling reason not to impose a guidelines
sentence.” Soto, 855 N.W.2d at 308 (quotations omitted). “[T]he mere fact that a mitigating
factor is present in a particular case does not obligate the court to place [a] defendant on
probation . . . .” State v. Pegel , 795 N.W.2d 251, 253 (Mi nn. App. 2011) (quotation
omitted). And, “[a]lthough the [district] court is required to give reasons for departure, an
explanation is not required when the court c onsiders reasons for depa rture but elects to
impose the presumptive sentence.” State v. Van Ruler , 378 N.W.2d 77, 80 (Minn. App.
1985).
Appellate courts “afford the [district] court great discretion in the imposition of
sentences and reverse sentencing decisions only for an abuse of that discretion.” Soto, 855
N.W.2d at 307-08 (quo tation omitted). A district court “abuses its discretion when its
decision is based on an erroneous view of the law or is against logic and the facts in the
record.” Riley v. State , 792 N.W.2d 831, 833 (Minn. 2011 ). We will reverse a district
court’s refusal to depart only in a “rare” case. State v. Walker, 913 N.W.2d 463, 468 (Minn.
App. 2018).
Though an appellate court may review sentencing decisions for an abuse of
discretion, it will not decide matters not raised before the district court. Roby v. State, 547
N.W.2d 354, 357 (Minn. 1996). “Nor may a party obtain review by raising the same general

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issue litigated below but un der a different theory.” Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988).
Particular Amenability to Probation
Bunnell argues that his case warrants a downward dispositional departure because
he is particularly amenable to probation.
Under the sentencing guidelines, a defenda nt’s particular amenability to probation
can qualify as a mitigating factor warrantin g a downward dispositiona l departure. Minn.
Sent. Guidelines 2.D.3.a.(7) (Supp. 2017 ). In determining whether a defendant is
particularly amenable to probation, courts c onsider a number of factors, often referred to
as the Trog factors, which include “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).
Bunnell claims that the Trog factors “generally weigh” in his favor. In particular, he
contends that (1) his age and admitted immaturity , (2) his desire to reform to be there for
his family, (3) his admitted remorse, and (4) hi s efforts to take responsibility by pleading
guilty and working with the stat e to get treatment all show th at he would be particularly
amenable to probation.1
At sentencing, however, the district court rejected the assertion that Bunnell was
particularly amenable to probation and co ncluded that there were no substantial and
compelling reasons to depart from the sentencing guidelines. In doing so, the district court

1 Bunnell and his counsel also indicated th at Bunnell was working with the police,
presumably as an informant, but the details in the record are limited.

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reviewed Bunnell’s sentencing memorandum and the plea transcript, and reviewed and re-
reviewed the PSI report. The district c ourt also considered the arguments and
recommendations from both parties and gave eac h party an opportunity to point out any
errors or omissions in the record up to that point. The record indicates the court gave serious
consideration to the request for a departure and determined that a presumptive sentence
was appropriate in Bunnell’s case. No further explanation was required. See Van Ruler ,
378 N.W.2d at 80.
Additionally, while no explan ation was required, the dist rict court went on to
explain that its decision to impose a presumptive sentence was based on (1) Bunnell’s
failure to complete the agr eed-upon 60 days of inpatient treatment, although he had
completed a 28-day program; (2) his positive methamphetamine test after treatment; (3) his
failure to appear for his PSI interview and original sentencing hearing; and (4) his previous
failures under probation supervision.
Given the court’s consideration of the entir e record, as well as its stated concerns
about Bunnell’s conduct, it was reasonable for the court to conclude that Bunnell was not
particularly amenable to probation. Therefore, the district court did not abuse its discretion
by denying Bunnell’s motion for a downward dispositional departure on that basis.
Acceptance into an Approved Treatment Program
Bunnell next argues that his chemical dependency and acceptan ce into treatment,
along with his ability to respond to such treatment, provide a substantial reason for a
downward dispositional departure.

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Under the sentencing guidelines, another potential mitigating factor that may justify
a downward dispositional departure is that “the offender is found by the district court to be
particularly amenable to pr obation based on adequate eviden ce that the offender is
chemically dependent and has been accepted by, and can respond to, a treatment program
in accordance with Minnesota Stat utes 2014, section 152.152.” Minn. Sent. Guidelines
2.D.3.a.(8) (Supp. 2017). Sec tion 152.152 states that a court may stay the execution of
sentences for certain controlled-substance co nvictions based on amenability to probation
“only if the offender presents ade quate evidence to the court that the offender has been
accepted by, and can respond to, a treatment program that has be en approved by the
commissioner of human services.” Minn. Stat. § 152.152 (2014).
Bunnell did not raise his argument under s ection 152.152 to the district court.
Therefore, it is forfeited, as an appellate court “will not decide issues which were not raised
before the district court.” Roby, 547 N.W.2d at 357. But, even assuming the argument was
properly raised, Bunnell’s claim at most pr ovides another potential mitigating factor for
the district court to consider during sentencing. The fact that a mitigating factor is present
does not obligate the court to depa rt from a presumptive sentence. Pegel, 795 N.W.2d at
253.
Furthermore, while this particular argument was not raised to the district court, the
record indicates the district court did c onsider Bunnell’s admission into a treatment
program at sentencing. It determined that, ev en putting aside that Bunnell had failed to
complete the 60 days of treatment contemplated in his plea agreement, there were sufficient
reasons to decline his motion for a dispositional departure. As noted above, the district

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court cited Bunnell’s failure to appear fo r his PSI interview and original sentencing
hearing, as well as his previous failures under probation supervision, as reasons why it was
imposing a presumptive sentence, despite Bunnell’s participation in treatment.
Still, Bunnell’s failure to raise the section 152.152 argument to the district court
means there are no findings on the issue for this court to review in determining whether the
district court abused its discretion by declining a downward dispositional departure on that
basis. The issue is forfeited, and, on this record, the district court did not abuse its discretion
by denying a dispositional departure.
Affirmed.