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This opinion will be unpublished and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
A19-0333

State of Minnesota,
Respondent,

vs.

Justin Matthew Girling,
Appellant.

Filed January 13, 2020
Affirmed
Smith, Tracy M., Judge

Ramsey County District Court
File No. 62-CR-18-826

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

John Choi, Ramsey County At torney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

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

Considered and decided by Cleary, Chief Judge; Hooten, 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
In this direct appeal from a judgment of conviction for sec ond-degree intentional
murder pursuant to a guilty pl ea, appellant Justin Girling ar gues that the district court

2
abused its discretion by denying his motion for a downward dispositional sentencing
departure. We affirm.
FACTS
On January 31, 2018, Girling shot and kille d his half-brother K.S. The state charged
Girling with second-degree intentional murder, and, on August 1, 2018, he pleaded guilty
as charged. In exchange for his guilty plea, the state agreed to recommend a sentence at the
bottom of the sentencing guidelines range, which was 261 to 367 months’ imprisonment,
and that Girling would be free to argue for both a downward durational and a downward
dispositional departure.
Plea Hearing
The following facts were established at Gir ling’s plea hearing. On the day of the
shooting, Girling, K.S., and thei r mother were at th e home they all shared in St. Paul. At
around 1:30 in the afternoon, Girling was in his upstairs bedroom when he heard what
sounded like an argument between K.S. and their mother. According to Girling, K.S. was
acting and speaking “erratically” and kicking things. Girling, who had a permit to carry a
firearm and routinely carried one while at home, had a han dgun concealed on his person.
After hearing the argument, he went downstairs to “get breakfast.” When he arrived in the
kitchen, he determined that K.S. was upset about something that had happened to him at a
store. Girling characterized K.S. as “a little bit aggrieved about it” but not more upset than
was “normal” for K.S. Girling then confront ed K.S. about how he was speaking to their
mother, and K.S. started asking him, “Wha t are you going to do about it tough guy?”
According to Girling, K.S. then came towards him in a “challenging, aggressive way.” K.S.

3
did not say anything else and had nothing in his hands. According to Girling, as K.S.
approached him, K.S. lunged towards him. Gi rling pulled out his gun and shot K.S. three
times. When he shot him, Girling aimed at K.S.’s chest and intended to kill him. K.S. died
from his injuries.
Girling waived his right to assert a self-defense claim. The district court asked him
multiple times whether he understood that th e court was under no obligation to grant a
departure from the sentencing guidelines, and Girling respon ded that he did understand.
The district court found that there was a sufficient factual basis for Girling’s plea, ordered
a presentence investigation (PSI), and set the matter for sentencing on October 25, 2018.
Initial Sentencing Hearing
At the beginning of the scheduled sentenci ng hearing on October 25, the district
court stated that it had reviewed everything filed in preparation for the hearing. This
included the PSI report, letters of support on behalf of Girling from eight different people
(including the mother of Girling and K.S.), letters from a medical health practitioner in the
correctional center, certificates of Girling’ s completion of anger-management and goal-
achievement programs, and affidavits of restitution. The district court then explained that
it would like to hear from everyone intending to speak but that it would not issue a decision
that day because it wanted more information regarding the request for a downward
dispositional departure. The district court as ked that defense couns el collect and submit
more information regarding what “opportunities would be available for Mr. Girling” if it
granted a dispositional departure.

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Girling’s attorney spoke fi rst, asking for a downward durational or dispositional
departure. She focused on a dispositional departure, asserting that Girling was particularly
amenable to probation. Defense counsel said that Girling was a lifelong resident of Ramsey
County, had never been in trouble before this offense, was an exemplary inmate while in
custody on the present offense, held a job for most of hi s adult life, won awards for
outstanding sales performance, had a degree in theology and a “deep faith” that caused him
to minister to others while in custody, and was remorseful as demonstrated by his
confessing his sins to clergy.
The district court heard next from the moth er of K.S. and Girling. Their mother
asked for leniency for Girling and believed that he “had no other alternative” but to shoot
K.S. She said that, when K.S. had “act[ed] out” in the past, Girli ng had always tried to
help him and was patient with him.
The state then argued that, although a sentence at the bottom of the guidelines range
was appropriate, Girling was not particularly amenable to probation in a way that warranted
a downward dispositional departure. It argued that the nature of the case and Girling’s lack
of criminal history had already been accoun ted for by the guidelines and the state’s
recommendation.
After the state’s argument, Girling spoke. The district court allowed him to speak
for about 35 to 40 minutes. Girling discusse d K.S.’s history of th reatening and erratic
behavior, including two occasions in which po lice had been called. He described the day
that he shot K.S., making stat ements such as: “And when he lunged at me . . . I panicked
. . . .” and “I overestimated the threat from him.” He also stated: “It was an evil wicked act

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. . . He didn’t deserve to die. I could have us ed [a] nonlethal form of defense against him.
I didn’t need to shoot him.” Gi rling then discussed at length other situations in which he
had “dealt with conflict” with other people without using his firearm. He also talked about
his spiritual convictions and how he had shared those convictions with other inmates while
in jail. He asked that the district court place him on probation so that he could take care of
his mother as she aged and so that he could be involved in ministry.
When Girling finished speaking, the di strict court concluded the hearing and
deferred its sentencing decision until the ne xt hearing, which was scheduled for
November 29.
Continued Sentencing Hearing
At the November 29 hearing, the district court noted that it had received and
reviewed a letter from the defense outlining opportunities available to Girling in the event
of a dispositional departure, a certificate of Girling’s completion of a mindfulness class,
two more letters in support of Girling from other inmates in the jail, and an additional letter
from Girling. After hearing final arguments fro m the parties, the district court announced
its sentencing decision.
The district court began by denying the request fo r a downward dispositional
departure and explaining its ratio nale. It said that it was tr oubled by aspects of Girling’s
statement at the prior hear ing and questioned wh ether he had demonstrated genuine
remorse. It found it troubling that Girling had approached K.S. with a gun when K.S. had
never physically attacked Girling or his moth er in the past. According to Girling’s own
account, the district court explained, K.S. ha d only ever “threatened in general terms to

6
hurt himself or others in the abstract.” The district court found it troubling that Girling, to
show his nonviolent nature, gave examples of interactions with other people in which “[n]o
force would have been necessary or even appropriate.” The district court was “particularly
troubled” by Girling’s statement: “I wish I could make him live again because it wasn’t
worth coming to jail or doing any sentence over it. If I could, I would let him live again.
This crime has made a fool of me.” The distri ct court opined that “these are not words of
remorse but rather of regret.”
The district court then granted Gir ling’s request for a downward durational
departure. The sentencing guidelines range was 261 to 367 months’ imprisonment, with a
presumptive disposition of 306 months, and the district c ourt sentenced Girling to 180
months instead. The district court stated th at it was granting this significant durational
departure because it was persuaded that the vi ctim was the aggressor and that Girling’s
conduct was therefore significa ntly less serious than that typically involved in the
commission of second-degree murder.
Girling appeals the district court’s denial of his request for a downward dispositional
sentencing departure.
D E C I S I O N
District courts have a great d eal of discretion in sentencing. State v. Soto , 855
N.W.2d 303, 305 (Minn. 2014 ). Appellate courts review a district court’s sentencing
decision for an abuse of that discretion. Id. at 307-08. 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).

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The district court’s sentencing discre tion is, however, limite d by the Minnesota
Sentencing Guidelines, which pr escribe a sentence that is “p resumed to be appropriate.”
Minn. Sent. Guidelines 2.D.1 (Supp. 2017); see Soto, 855 N.W.2d at 308. A district court
may depart from the presumptively appropriate guidelines sentence only if “identifiable,
substantial, and compelling circ umstances” warrant departure. State v. Solberg , 882
N.W.2d 618, 623 (Minn. 2016). To maintain 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 omitte d). A district court may consider
“both offender- and offense-related factors” for a downward dispositional departure. State
v. Walker, 913 N.W.2d 463, 468 (Minn. App. 2018 ). “[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 (Min n. 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 will reverse a district court’s refusal to depart only in a “rare” case.
Walker, 913 N.W.2d at 468.

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The guidelines provide a nonexclusive list of mitigating factors that can justify a
downward dispositional departure, including that “[t]he offender is particularly amenable
to probation.” Minn. Sent. Guidelines 2.D.3.a.(7) (Supp. 2017). The qualifier “particularly”
severely curbs the number of departures in a way that is consistent with promoting the
guidelines’ purpose of sentencing uniformity. See Soto, 855 N.W.2d at 308-09. In
determining whether a defendant is particularly amenable to probation, courts consider a
number of factors, which includ e “the defendant’s age, his pr ior 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). However, a district court is not required 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).
Girling argues that he is particularly amenable to probation and thus should have
received a downward dispositional departure. He points out th at he has no prior criminal
history, has been employed most of his a dult life, has stable housing, does not abuse
substances, accepted responsibility for his offense by pleading guilty, and was cooperative
in court. Girling argues that the district court erroneously found that the “few sentences”1
in his statement at sentencing regarding his prior conflict-avoidance and nonviolence
showed a lack of insight on Girling’s part. He also points to his involvement with anger-

1 In fact, Girling’s discussion regarding his management of conflict with others spans two
and a half pages of the hearing transcript.

9
management programming and his “ministering to others” while in jail as steps towards
rehabilitation.
Girling submitted a pro se supplemental br ief for this appeal, which elaborates on
why the district court should not have interpreted his statements as showing a lack of
remorse, explains why he gave examples of nonviolence at sentencing, and speaks to his
relationship with his brother.
The state argues that the record did not establish that Girling is particularly
amenable to probation, especially given his la ck of remorse, and that, even if the record
did establish his particular amenability, the di strict court was still under no obligation to
grant a dispositional departure in an intentional-murder case.
The record makes clear that the district court carefully considered Girling’s request
for a downward dispositional departure. The district court reviewed the sentencing
memorandum and supplemental letter from the defense, the PSI report, all of the letters in
support of Girling, letters from a medical health practitioner in the correctional center, and
certificates of Girling’s completion of anger-management, mindfulness, and goal-
achievement programs. The district court also allowed Girling to speak for 35 to 40 minutes
and listened carefully to his statements. Furthermore, the district court demonstrated
careful consideration of the matter by cont inuing the initial sent encing hearing and
requesting more information from defense counsel regarding a dispositional departure.
Though not required to do so, the district court explained its rationale for declining
to grant a dispositional departure. See Van Ruler , 378 N.W.2d at 80. It began by
summarizing its view on the circumstances le ading up to the murder, emphasizing that

10
Girling appeared to have had “no reason to panic” when K.S. approached him that day
because Girling had extensiv e experience with K.S. a nd knew that K.S. had never
physically injured anyone. The district court told Girling th at it believed what happened
was: “[Y]ou were no longer going to allow [K .S.] to verbally abuse you or your mother.
You frankly had had enough.” Th e district court also explai ned that it was troubled by
Girling’s examples of his nonviolent confront ations with others, as violence would have
been entirely inappropriate in any of the given scenarios.
Lastly, the district court sp ecifically emphasized Girling’s lack of remorse, which
is one of the factors for amen ability to probation identified in Trog. 323 N.W.2d at 31. It
was “particularly troubled” by Girling’s stat ement that killing his brother was not “worth
coming to jail or doing any sentence over . . . . This crime has made a fool of me.” The
district court’s finding that Girling lacked re morse is consistent with the PSI report. The
PSI agent noted that Girling “lacks recognition of his offe nse conduct as criminal” and
“verbalized limited remorse, and no empathy for the victim.”
The district court carefully considered the entire record and made relevant findings
regarding Girling’s amenability to probation. The district court’s findings were amply
supported by the record. Accordingly, the dist rict court did not abuse its discretion by
denying Girling’s motion for a downward dispositional departure.
Affirmed.