A19-0218

This opinion will be unpublished and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
A19-0217
A19-0218

State of Minnesota,
Respondent,

vs.

Richard Danell Dunston,
Appellant.

Filed December 23, 2019
Affirmed
Larkin, Judge

Stearns County District Court
File Nos. 73-CR-18-3558, 73-CR-15-3366

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

Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Chief Deputy County
Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Reyes, Judge; and Slieter,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
In this consolidated appeal, appellant challenges his convic tion and sentence for a
2018 felony domestic assault, his sentence for a 2015 second-degree assault, and the district
court’s revocation of his probation for the 2015 offense. He argues that the district court
erred by refusing to allow him to withdraw his guilty plea to the 2018 offense, refusing to
recalculate the criminal-history score used to sentence him for the 2015 and 2018 offenses,
denying his request for a d ownward dispositional departure on the 2018 offense, and
revoking probation on the 2015 offense based on his commission of the 2018 offense. We
affirm.
FACTS
In April 2018, respondent State of Minnesota charged appellant Richard Danell
Dunston with two counts of felony domestic assault for conduct that allegedly occurred
that month. The complaint alleged that Dunston had assaulted V.A.C., his then girlfriend.
The district court issued a domestic abuse no contact order (DANCO), prohibiting Dunston
from having contact with V.A.C. and two of his children. At the time of the 2018 offense,
Dunston was on probation for a 2015 second-degree assault against a different victim. The
2018 charges triggered revocation of Dunston’s probation for the 2015 offense.
Dunston resolved his 2018 charges and the resulting alleged probation violation
with a “global resolution.” He agreed to plead guilty to one count of felony dom estic
assault in the 2018 case with the understanding that the state would dismiss the second
count, as well as domestic assault charges in a third case not at issue in this appeal. Dunston

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also agreed to admit that he violated probation in his 2015 case. As part of the settlement,
the state agreed to a sentencing cap of 36 months of imprisonment.
At the plea hearing , Dunston admitted that he “grab[bed] V.A.C. by the wrist
forcefully and ben[t] it in a way that it wasn’t supposed to be bent” and “ended up leaving
a bruise on V.A.C.’s wrist from how hard [he] grabbed her.” As to the alleged probation
violation, Dunston admitted that his plea of guilty was an admission that he had “failed to
remain law abiding while on probation,” that he “intentionally and inexcusably violated
[the] terms of probation,” and that he “broke the law.”
The district court released Dunston from cust ody pending sentencing. After
Dunston’s guilty plea and release, V.A.C. met with a victim-assistance coordinator and
recanted her claim that she had been assaulted by Dunston. The state disclosed V.A.C.’s
recantation to the defense, as well as communicat ions that it had had with V.A.C. prior to
Dunston’s guilty plea. In those other communications, V.A.C. told the victim -assistance
coordinator that Dunston assaulted her in front of their children and that she was concerned
that one of her children might h ave to testify. V.A.C. also told the victim -assistance
coordinator that she did not want Dunston to be charged with a crime. Lastly, V.A.C. and
the victim-assistance coordinator discussed the possibility of the state helping V.A.C. find
a place to live and pay her bills.
While Dunston was released from custody, the state charged him with one count of
engaging in sex trafficking and 15 counts of violation of a no -contact order based on
conduct that occurred after his release. V.A.C. was the alleged victim of those offenses.

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After the state disclosed its communications with V.A.C., Dunston moved to
withdraw his guilty plea. At a hearing on Dunston’s motion, defense counsel informed the
district court that V.A.C. had spoken with a defense investigator and “basically gave the
same version of [the recantation] that she gave to [the state].” Defense counsel argued that
V.A.C. was sober when she recanted and that there were now “two consistent statements
that recant what happene d, . . . [and] one drunken statement that alleges [Dunston]
committed a crime .” Defense counsel further argued that “ two sober statements that are
consistent with each other [a re] more credible than one drunken statement.” Lastly ,
defense counsel argued that if she had known that V.A.C. was not credible and that
V.A.C.’s story had changed, she would have advised Dunston to proceed to trial.
The district court denied Dunston’s motion for plea withdrawal , noting that
V.A.C.’s recantation coincided with Dunston’s new charges and that the court had “a really
difficult time with the timing” because it called into question the validity of V.A.C.’s
recantation. The district court reasoned that V.A.C.’s recantation after Dunston was
released from custody “negatively impacts the County because, as [defense counsel] said,
now there would be two allegedly sober statements versus one on the night of the offense
in which [V.A.C.] . . . allegedly was intoxicated.” The district court therefore concluded
that allowing Dunston to withdraw his plea would be “very prejudicial to the State.”
Before sentencing, Dunston once again moved to withdraw his guilty plea, asking
the district court to reconsider its decision. Dunston also moved the district court to correct
the sentence for his 2015 second-degree assault . Specifically, Dunston challenged the
weight assigned to two prior Illinois convictions that were included in his criminal-history

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score when sentencing that offense. The parties and the district court tr eated Dunston’s
criminal-history-score challenge as applying both to Dunston’s motion to correct his
sentence for the 2015 second-degree assault and to sentencing for his 2018 felony domestic
assault. Lastly, Dunston moved for a downward dispositional departure, arguing that his
recent success on probation justified a sentencing departure on his felony domestic assault.
The district court rejected Dunston’s renewed plea-withdrawal motion, his criminal-
history-score challenge, and his request for a downward disposi tional departure . The
district court sentenced Dunston to an executed term of imprisonment of 30 months for his
2018 felony domestic assault and revoked the stayed prison term of 54 months for his 2015
second-degree assault.
Dunston appeals.
D E C I S I O N
I.
Dunston contends that the district court erred by denying his presentence motion to
withdraw his guilty plea. We understand his briefing to present two theories in support of
relief.1 First, he argues that he is “ entitled to presentence plea withdrawal because the
state failed to disclose exculpatory and impeaching evidence in the form of statement s
from [V.A.C.].” As support for that argument, he relies on Brady v. Maryland, 373 U.S.

1 Because the parties did not request oral argument, the arguments are limited to their briefs.
See Minn. R. Civ. App. P. 133.03 (providing that “[i]f a party desires oral argument, a
request must be included in the statement of the case”); see also Minn. R. Civ. App. P.
134.01(a) (stating that oral argument will be allowed unless “no request for oral ar gument
has been made by either party in the statement of the case required by Rule 133.03”).

6
83, 83 S. Ct. 1194 (1963) , and Minn. R. Crim. P. 9.01. Second, he contends that even if
the state did not violate Brady or rule 9.01, “the concerns raised were sufficient to establish
that plea withdrawal would be fair and just prior to sentenc ing” under a traditional plea -
withdrawal analysis. See Minn. R. Crim. P. 15.05 (authorizing plea withdrawal under two
circumstances). We address each argument in turn.
“Entitlement” to Plea Withdrawal
The so -called Brady rule provides that “the suppressi on by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of th e
prosecution.” Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97. Thus, the state has an
affirmative constitutional duty to disclose evidence that is favorable and material to the
defense. Id. at 87 -88, 83 S. Ct. at 1196 -97; see Minn. R. Crim. P. 9.01, subd. 1(6)
(providing that the prosecution must disclose “[m]aterial or information in the prosecutor’s
possession and control that tends to negate or reduce the defendant’s guilt”); see also
Pederson v. State, 692 N.W.2d 452, 460 (Minn. 2005) (stating that rule 9.01 embodies the
first two components of the test for alleged Brady violations).
A Brady violation includes three elements: (1) the evidence at issue must be
favorable to the defendant, either because it is exculpatory or it is impeaching; (2) the
evidence was willfully or inadvertently suppressed by the state; and (3) the evidence must
be material—in other words, the absence of the evidence prejudiced the defendant. Zornes
v. State, 903 N.W.2d 411, 417 (Minn. 2017); Pederson, 692 N.W.2d at 459.

7
The parties disagree regarding whether the state’s failure to disclose V.A.C.’s
statements before Dunston pleaded guilty constitutes a Brady violation. We note that the
Brady rule was announced in response to a prosecutor’s failure to disclose m aterial
evidence before trial . Brady, 373 U.S. at 84, 83 S. Ct. at 1195 . The Supreme Court
explained that the rule was based on “avoidance of an unfair trial to the accused” stating,
“Society wins not only when the guilty are convicted but when criminal trials are fair.” Id.
at 87, 83 S. Ct. at 1197. Dunston does not cite any authority indicating that the Brady rule
applies outside of the trial context or that a Brady violation can result from a prosecutor’s
failure to disclose evidence prior to a defendant’s guilty plea. In fact, the United States
Supreme Court has held that “the Constitution does not require the Government to disclose
material impeachment evidence p rior to entering a plea agreement with a criminal
defendant.” United States v. Ruiz, 536 U.S. 622, 633, 122 S. Ct. 2450, 2457 (2002). Thus,
we are not persuaded that Dunston is entitled to withdraw his guilty plea based on the
alleged Brady violation.2
The state’s duty to disclose evidence to the defense is also governed by Minn. R.
Crim. P. 9.01. Minn. R. Crim. P. 9.01 requires prosecutors to disclose written or recorded
statements and written summaries of oral statements that relate to the case. Minn. R. Crim.
P. 9.01, subd. 1(2). Under Minn. R. Crim. P. 9.01, subd. 1(6), the prosecution must disclose

2 Nonetheless, we observe that although V.A.C.’s recantation was exculpatory, it did not
occur until after Dunston pleaded guilty. We fail to discern how V.A.C. ’s post -plea
recantation prejudiced Dunston’s original decision to plead guilty. Although the absence
of that evidence may seem prejudicial in hindsight, the state did not suppress that evidence
prior to Dunston’s guilty plea. It simply did not exist at that time.

8
“[m]aterial or information in the prosecutor’s possession and control that tends to negate
or reduce the defendant’s guilt.” This obligation extends to materials in possession or
control of the prosecutor’s staff and any others who have participated in the investigation
or evaluation of the case. Minn. R. Crim. P. 9.01, subd. 1a(1); see Woodruff v. State, 608
N.W.2d 881, 885 (Minn. 2000) (discussing previous version of rule 9.01). The supreme
court has explained that the mandatory language of rule 9.01 requires the state to disclose
the substance of every oral statement by a witness that relates to the case, even if the witness
does not disclose new or different information from previously disclosed statements. State
v. Palubicki, 700 N.W.2d 476, 489-90 (Minn. 2005).
“Each party has a continuing duty of disclosure before and during trial.” Minn. R.
Crim. P. 9.03, subd. 2(c). If “after compliance with any discovery rules or orders, a party
discovers additional material, information or witnesses subject to disclosure, that party
must promptly notify the other party of what it has discovered and disclose it.” Minn. R.
Crim. P. 9.03, subd. 2(b). All material must be disclosed “in time to afford counsel the
opportunity to make beneficial use of it.” Minn. R. Crim. P. 9.03, subd. 2(a).
The state acknowledges —and we agree —that “it did not comply with Minn. R.
Crim. P. 9.01, subd. 1(2) when it failed t o disclose the contents of oral communications
with V.A.C. that occurred before [Dunston] pleaded guilty.”
As to the remedy for the state’s violation of rule 9.01, we note that “[a] defendant
has no absolute right to withdraw a guilty plea after entering it.” State v. Raleigh , 778
N.W.2d 90, 93 ( Minn. 2010). With the exception of one case, all of the cases on which
Dunston relies for his assertion that he is entitled to withdraw his guilty plea based on the

9
discovery violation are cases discussing the new-trial remedy for such violations. See State
v. Jackson , 770 N.W.2d 470, 478 -81 (Minn. 2009) (determining that even if the state
violated the discovery rule, there was no reasonable probability that the outcome at trial
would have been different) ; State v. Schwantes, 314 N.W.2d 243, 244-45 (Minn. 1982)
(granting a new trial in the “interests of justice and to [ensure] that the reciprocal discovery
rules” are observed by both the prosecution and defense where state failed to notify the
defense of a statement that discredited the defendant’s alibi); State v. Zeimet, 310 N.W.2d
552, 553-54 (Minn. 1981) (granting new trial because the state, without justification, failed
to disclose exculpatory, impor tant evidence to the defense); State v. Moore, 493 N.W.2d
606, 609 (Minn. App. 1992) (concluding that where the defendant would have chosen a
different trial defense but for the discovery violation, district court abused its discretion by
not ordering a new trial as a sanction for the violation ), review denied (Minn. Feb. 12,
1993).
The single plea-withdrawal case that Dunston cites, Shorter v. State , involved an
exercise of the Minnesota Supreme Court’s supervisory powers to reverse the denial of a
postconviction request for plea withdrawal base d in part on newly discovered evidence.
511 N.W.2d 743 , 745 -47 (Minn. 1994). In granting relief, the supreme court found
persuasive “the unusual fact that the Minneapolis police department reopened its
investigation and was prepared to testify before the [district] court that the original police
investigation into Shorter’s case was incomplete.” Id. at 746. The supreme court noted
that “the highly unusual facts of [the] case render[ed] [Shorter’s] plea suspect.” Id.

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The circumstances here are unlike th ose in Shorter in two ways. First, V.A.C.’s
statements to agents of the prosecutor’s office do not render Dunston’s guilty plea suspect.
Instead, as the district court reasonably concluded , V.A.C.’s recantation was suspect
because it occurred after Dunston was released from jail and allegedly contact ed her.
Second, the supreme court granted relief in Shorter based on an exercise of its “supervisory
powers,” which are powers this court lacks. Id. at 747; see State v. Gilmartin, 535 N.W.2d
650, 653 (Minn. App. 1995) (emphasizing that as an intermediate appellate court, this court
cannot properly exercise “supervisory powers reserved to this state’s supreme court” ),
review denied (Minn. Sept. 20, 1995) . Even if this court had such powers, justice would
not require their exercise under the circumstances of this case, which reasonably suggest
that Dunston used his opportunity for presentence release to further victimize V.A.C. ,
resulting in her recantation.
In sum, we are not persuaded that Dunston is “entitled” to withdraw his guilty plea
based on the alleged Brady violation or the certain discovery violation.
Traditional Plea-Withdrawal Analysis
Minn. R. Crim. P. 15.05 authorizes plea withdrawal under two circumstances. First,
“[a]t any time the court must allow a defendant to withdraw a guilty plea upon a timely
motion and proof to the satisfaction of the court that withdrawal is necessary to correct a
manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. Second, “[i]n its discretion the
court may allow the defendant to withdraw a plea at any time before sentence if it is fair
and just to do so.” Id., subd. 2. Dunston does not request relie f under the manifest-

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injustice standard. Instead, he argues that “it would have at least been fair and just to allow
him to withdraw his plea.”
Although the fair -and-just standard is “less demanding than the manifest injustice
standard, it does not allow a defendant to withdraw a guilty plea for simply any reason.”
State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007) (quotation omitted).
The fair and just standard requires district courts to give due
consideration to two factors: (1) the reasons a defendant
advances to support withdrawal and (2) prejudice granting the
motion would cause the State given reliance on the plea. A
defendant bears the burden of advancing reaso ns to support
withdrawal. The State bears the burden of showing prejudice
caused by withdrawal.

Raleigh, 778 N.W.2d at 97 (citations and quotations omitted). “[Appellate courts] review
a district court’s decision to deny a [plea] withdrawal motion [under the fair -and-just
standard] for abuse of discretion, reversing only in the rare case.” Id. (quotation omitted).
Given the state’s failure to c omply with its disclosure obligations under Minn. R.
Crim. P. 9.01, Dunston has met his burden to advance reasons supporting plea withdrawal.
As to the prejudice factor , the state argues that allowing Dunston to withdraw his plea
would prejudice the state because “V.A.C. and her children were subpoenaed to testify at
a trial on May 29, 2018 and had been cooperative” and that V.A.C. did not recant her
assault accusation until after Dunston was released from custody and repeatedly contacted
her.
The district court concluded that the state would be prejudiced if Dunston w ere
allowed to withdraw his guilty plea, explaining:

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[I]t’s pretty clear that given that [V.A.C.] has now recanted
twice since he’s been out, . . . I think clearly that definitely
negatively impacts the County because, as [ defense counsel]
said, now there would be two allegedly sober statements versus
one on the night of the offense in which she . . . allegedly was
intoxicated. So I do find that that would be very prejudicial to
the State in terms of this case.

As the district court noted, it was only after Dunston pleaded guilty and was released
from custody that V.A.C. told the state that she no longer wished to cooperate as a witness
and that “she lied about what happened so she would have a place to live.” Under the
circumstances, allowing Dunston to withdraw his guilty plea would significant ly
undermine the state’s case. Although the state’s failure to timely disclose V.A.C.’s pre-
plea statements is inexcusable and provide d support for Dunston’s request for plea
withdrawal, the district court did not abuse its discretion by denying the request based on
its conclusion that plea withdrawal would n ot be fair and just given the questionable
validity of V.A.C.’s recantation and the prejudice that would result to the state.
II.
Dunston contends that “by determining [his] two prior Illinois convictions were the
equivalent of third -degree sales convictions in Minnesota,” the district court erred in
calculating his criminal-history score for sentencing of his 2015 and 2018 offenses. The
state counters that this court should not consider that issue because Dunston has changed
his theory on appeal. See Roby v. State , 547 N.W.2d 354, 357 (Minn. 1996) (stating
principle that an appellate court will not decide issues not raised in district court). Because
a defendant may not waive review of his criminal -history-score calculation , State v.
Maurstad, 733 N.W.2d 141, 147 (Minn. 2007), we disagree.

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The sentencing guidelines “provide uniform standards for the inclusion and
weighting of criminal history information that are intended to increase the fairness and
equity in the consideration of criminal history.” State v. Reece , 625 N.W.2d 822, 824
(Minn. 2001) (quotation omitted). Convictions from other jurisdictions must be considered
in calculating a defendant’s criminal -history score under the guidelines. Id.; see Minn.
Sent. Guidelines 2.B.5.a (2014 & Supp. 2017).
The weight of an out-of-state felony offense “must be based on the severity level of
the equivalent Minnesota felony offense.” Minn. Sent. Guidelines 2.B.5.c (2014 & Supp.
2017). “The severity level ranking in effect at the time the current offense was committed
determines the weight assigned to the prior offense.” Minn. Sent. Guidelines 2.B.1 (2014
& Supp. 2017). “For prior non -Minnesota controlled substance convictions, the amount
and type of the controlled substance should be considered in the determination of the
appropriate weight to be assigned to a prior felony se ntence for a controlled substance
offense.” Minn. Sent. Guidelines cmt. 2.B.503 (2014 & Supp. 2017).
“[T]he district court may not use out-of-state convictions to calculate a defendant’s
criminal-history score unless the state lays foundation for the co urt to do so.” State v.
Maley, 714 N.W.2d 708, 711 (Minn. App. 2006). The state has the burden of establishing
the facts necessary to justify consideration of out -of-state convictions in determining a
defendant’s criminal-history score. State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983).
The district court “must make the final determination as to whether and how a prior non -
Minnesota conviction should be counted.” Minn. Sent. Guidelines 2.B.5.a (2014 & Supp.
2017). This court reviews the district court’s calculation of a defendant’s criminal-history

14
score for an abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002),
review denied (Minn. Aug. 20, 2002).
The record shows that Dunston has Illinois convictions for “possession of a
controlled substance with intent to deliver . . . 1 gram or more but less than 15 grams” of
“cocaine” and “possession of a controlled substance with intent to deliver . . . 1 or more
grams but less than 15 grams” of “heroin.” Dunston seems to concede that those were sale
offenses, and not possession offenses. See Minn. Stat. § 152.01, subd. 15a (2014 & 2016)
(providing that “sell” means “to posses s with intent to [deliver]”). But h e argues that
because each of the Illinois offenses is the equivalent of both a third-degree and a fourth-
degree controlled-substance crime under Minnesota law, they should have been counted as
fourth-degree offenses.
In Minnesota, a person commits a controlled-substance crime in the third degree if
“the person unlawfully sells one or more mixtures containing a narcotic drug.” Minn. Stat.
§ 152.023, subd. 1(1) (2014 & 2016). A person commits a controlled-substance crime in
the fourth degree if “the person unlawfully sells one or more mixtures contai ning a
controlled substance classified in Schedule I, II, or III, except marijuana or
Tetrahydrocannabinols.” Minn. Stat. § 152.024, subd. 1(1) (2014 & 2016). A person also
commits a controlled-substance crime in the fourth degree if “the person unlawful ly
possesses one or more mixtures containing a controlled substance classified in Schedule I,
II, or III, except marijuana or Tetrahydrocannabinols, with the intent to sell it.” Id., subd.
2(2) (2014 & 2016).

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Dunston argues that his Illinois conviction s should be counted as fourth -degree
controlled-substance crimes because “controlled substance” is defined to include cocaine
and heroin. See Minn. Stat. § 152.02, subds. 2, 3 (2014 & 2016) (stating that heroin is an
opium derivative and schedule I contro lled substance and that cocaine is a schedule II
controlled substance). 3 As support for that argument, Dunston relies on a n outdated
sentencing guidelines comment from the 2007 version of the Minnesota Sentencing
Guidelines, which stated that “[w]here multiple severity levels are possible for a prior
felony sentence . . . the lowest [possible] severity level should be used.” Sent. Guidelines
cmt. II.B.101 (Supp. 2007). That comment is not included in the guidelines that govern
calculation of Dunston’s criminal-history score for sentencing of his 2015 and 2018
offenses. See Minn. Sent. Guidelines cmt. 2.B.101 (2014 & Supp. 2017); see also Minn.
Sent. Guidelines 2.B.5.c (2014 & Supp. 2017).
Dunston also argues that “[t]he fourth -degree controlled subs tance statute is the
more specific equivalent of the Illinois crime ” and therefore should control . “When two
statutes, one general and one specific, cover the same conduct, the specific statute controls
the general statute, unless the legislature manifestly intends the general statute to control.”
State v. Lewandowski , 443 N.W.2d 551, 553 (Minn. App. 1989) . Dunston asserts that
“[b]ecause the fourth-degree controlled substance statute specifically covers the possession
with intent conduct described in [his] conviction and the third-degree statute does not, the
fourth-degree statute is the most equivalent Minnesota offense and must control.”

3 Minn. Stat. § 152.02, subd. 2, was amended in 2017, but that change is not relevant here.
See 2017 Minn. Laws ch. 95, art. 5, § 1, at 952-62.

16
The state counters that Dunston’s argument fails under this court’s decision in State
v. Richmond, 730 N.W.2d 62 (Minn. App. 2007), review denied (Minn. June 19, 2007). In
Richmond, this court held that the sale of fewer than three grams of cocaine, a schedule II
narcotic drug, is punishable as a third-degree controlled-substance crime, which proscribes
the sale of one or more mixtures containing a narcotic drug, and not as a fourth -degree
controlled-substance crime, which proscribes the sale of one or more mixtures containing
a schedule I, II, or III controlled substance. 730 N.W.2d at 65.
In doing so, we reasoned that the third - and fourth -degree controlled -substance
statutes “are not irreconcilably in conflict because, under the statutory scheme as a whole,
they proscribe different crimes. ” Id. at 69. We explained that the essential elem ents of
third-degree controlled -substance crime required the state to prove that the defendant
unlawfully sold one or more mixtures conta ining a “narcotic drug,” whereas the essential
elements of a fourth-degree offense require proof that the defendant unlawfully sold “one
or more mixtures containing a schedule I, II, or II I controlled substance.” Id. Because “a
narcotic drug is specifically and narrowly defined, not all schedule I, II, or III controlled
substances are narcotic drugs, and therefore, no t all sales of those controlled substances
will also constitute a third-degree controlled-substance crime.” Id. at 69-70. We concluded
that “[t]he provision of the third -degree statute . . . is expressly l imited to the sale of
‘narcotic drugs,’ and there fore is more specific than the fourth -degree statute, which
generally proscribes the sale of schedule I, II, or III controlled substances, a much broader
classification.” Id. at 70.

17
Dunston’s Illinois convictions are for “possession . . . with intent to deliver” cocaine
and heroin. A “ [n]arcotic drug” is defined as “opium, coc a leaves, opiates, and
methamphetamine,” Minn. Stat. § 152.01, subd. 10(1) (2014 & 2016 ), and includes “a
compound, manufacture, salt, derivative, or preparation of opium, coca leaves, opiates, or
methamphetamine,” Id., subd. 10(2) (2014 & 2016 ). Because heroin and cocaine are
“narcotic drugs,” see Minn. Stat. § 152.02, subds. 2, 3, the district court did not abuse its
discretion by counting Dunston’s Illinois offenses as third -degree, and not fourth-degree,
controlled-substance offenses when calculating his criminal-history score. See Richmond,
730 N.W.2d at 68 (stating that the legislature clearly intended to proh ibit the sale or
possession of “narcotic drugs” as a first -, second-, or third -degree, and not as a fourth -
degree, controlled-substance crime).
III.
Dunston contends that the district court erred by denying his motion for a downward
dispositional sentencing departure. “A district court’s departure d ecision will not be
reversed absent a clear abuse of discretion.” State v. Abrahamson, 758 N.W.2d 332, 337
(Minn. App. 2008), review denied (Minn. Mar. 31, 2009).
A district court must order the presumptive sentence provided under the Minnesota
Sentencing Guidelines unless the case involves “substantial and compelling
circumstances” that justify a downward departure. State v. Soto, 855 N.W.2d 303, 308-09
(Minn. 2014) (quotation omitted). When considering a dispositional departure, the district
court f ocuses “more on the defendant as an individual and on whether the [guidelines]
sentence would be best for him and for society.” State v. Heywood, 338 N.W.2d 243, 244

18
(Minn. 1983). “Numerous factors, including the defendant’s age, his prior record, his
remorse, his cooperation, his attitude while in court, and the support of friends and/or
family, are relevant to a determination whether a defendant is particularly suitable to
individualized treatment in a probationary setting.” State v. Trog , 323 N.W.2d 2 8, 31
(Minn. 1982).
“[A] defendant’s particular amenability to individualized treatment in a
probationary setting will justify departure” from a guidelines sentence. Soto, 855 N.W.2d
at 308 (quotation omitted). The particular amenability requirement “ ensure[s] 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.” Id. at 309 (quotation omitted). But a district court does not abuse its discretion
by refusing to depart “from a presumptively executed prison sentence, even if there is
evidence in the record that the defendant would be amenable to probation.” State v. Olson,
765 N.W.2d 662, 663 (Minn. App. 2009). “Only in a rare case will a reviewing court
reverse a district court’s imposition of the presumptive sentence.” Id. at 664 (quotation
omitted). This court will not interfere with the district court’s exercise of discretion, “as
long as the record shows t he sentencing court carefully evaluated all the testimony and
information presented before making a determination.” State v. Pegel, 795 N.W.2d 251,
255 (Minn. App. 2011) (quotation omitted).
The district court considered Dunston’s arguments for depart ure and determined
that a departure was not warranted. The district court explained:

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[Y]ou’re on probation on a downward dispositional departure;
you pled guilty to a felony . . . . [y]ou’re also alleged to have
committed another felony as well, and honestl y, I don’t know
how I could make findings that . . . you’re particularly
amenable under those circumstances. . . . I would have to find
that you’ re particularly amenable to probation and I would
have to find substantial and compelling reasons, and given the
situation I don’t see how [I] possibly could.
Dunston asserts that the district court abused its discretion because “[his] personal
history and his particular amenability to probation and treatment established substantial
and compelling circumstances to justify a departure.” He argues that his “particular
amenability to a treatment program is . . . evidenced by the fact that he satisfactorily
completed his drug testing requirements and that, while on probation he completed a
domestic abuse program, chemical dependency treatment with aftercare, moral recognition
therapy, an anger management assessment, a psychological assessme nt and paid all of his
restitution.” He also argues that the district court “had a nearly three-year period to observe
[his] capacity and true motivation for change.”
Dunston’s argument s are unavailing given his commission of a felony domestic
assault while on probation for second-degree assault. Regrettably, despite any completion
of the services described above, he did not demonstrate a change to law-abiding behavior.
Indeed, his commission of a felony domestic assault despite his completion of mult iple
assessments and programs while on probation suggests that he is particularly unamenable
to probation. In sum, t he district court did not abuse its discretion by imposing a
presumptive prison sentence.

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IV.
Dunston contends that the district court abused its discretion by revoking his
probation “based on the single violation where the policies favoring probation were not
outweighed by a need for confinement.”
The district court has “broad discretion in determining if there is sufficient evidence
to revoke probation and should be reversed only if there is a clear abuse of that discretion.”
State v. Austin , 295 N.W.2d 2 46, 249 -50 (Minn. 1980). “The decision to revoke
[probation] cannot be a reflexive reaction to an accumulation of technical violations but
requires a showing that the offender’s behavior demonstrates that he or she cannot be
counted on to avoid antisocial activity.” Id. at 251 (quotations omitted).
Before a district court may revoke a defendant’s probation, it “must (1) designate
the specific condition or conditions that were violated; (2) find that the violation was
intentional or ine xcusable; and (3) find that need for confinement outw eighs the policies
favoring probation.” Id. at 250. In assessing the third Austin factor, the district court should
consider whether “confinement is necessary to protect the public from further criminal
activity by the offender,” whether “the offender is in need of correctional treatment which
can most effectively be pr ovided if he is confined,” and whether “it would unduly
depreciate the seriousness of the violation if probation were not revoked.” Id. at 251
(quotations omitted).
The district court made findings regarding all of the Austin factors. As to the third
factor, the district court found that revocation was “necessary in terms of public safety ”
and that “to not send [Dunston] to the Commissioner would reduce the seriousness of the

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offense.” Dunston argues that the district court’s finding on the third factor is not supported
by the record and that the “ district court erroneously evaluated the seriousness of the
offense rather than the seriousness of the violation.”
Once again, Dunston’s ar gument focuses on his cooperation with probationary
requirements and largely ignores the fact that he nonetheless committed another felony
assault while on probation for felony assault. As to the district court’s reference to the
seriousness of the offens e, the guidelines allow such consideration. See Minn. Sent.
Guidelines 3.B (2014) (explaining that when considering whether to revoke a stayed
sentence, “[l]ess judicial tolerance is urged for offenders who were convicted of a more
severe offense”); State v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015) (explaining
that in deciding whether to revoke probation, district court’s grant of a downward
dispositional departure was a proper consideration) , aff’d on other grounds , 883 N.W.2d
790 (Minn. 2016). And, as the state points out, “[i]t is unclear how the district court could
have turned around and imposed a local jail sanction in such circumstances without
depreciating the seriousness of the domestic assault, the violation at issue.” On this record,
the district court did not abuse its discretion by revoking Dunston’s probation.
In conclusion, the district court did not abuse its discretion by denying Dunston’s
motion to withdraw his guilty plea, refusing to recalculate his criminal -history score ,
denying his motion for a downward dispositional departure, or revoking his probation.
Affirmed.