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This opinion will be unpublished and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
A19-0375

State of Minnesota,
Respondent,

vs.

Timothy Daniel Miller,
Appellant.

Filed November 25, 2019
Affirmed
Reilly, Judge

McLeod County District Court
File No. 43-CR-18-51

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

Michael K. Junge, McLeod County Attorney, Daniel R. Provencher, Assistant County
Attorney, Glencoe, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Reilly, Judge; and Cochran,
Judge.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
In this direct appeal from final judgment, appellant challenges his sentence arguing
that the district court abused its discretion when it denied his motion for a downward
dispositional departure. Because we discern no abuse of discretion, we affirm.
FACTS
In January 2018, appellant was charged with felony first-degree assault in McLeod
County. The state filed a motion for an aggravated departure based on the victim’s
particular vulnerability due to age, infirmity or reduced physical or mental capacity.
In August 2018, appellant pleaded guilty admitting the following facts. In January
2018, appellant was caring for his three young children and the victim, who was
approximately five months old at the time. On the day of the offense, the victim was sick
and was vomiting. Appellant was feeding the victim when the victim began vomiting.
Appellant shook the victim for approximately one to two minutes. Appellant then saw the
victim’s eyes roll back in his head.
The chief of police for the city of Glencoe was dispatched to appellant’s residence.
Upon arrival, the police officer observed that the victim was unresponsive and exhibiting
shallow breathing. A medical exam was conducted at the Children’s Hospital in St. Paul,
Minnesota. The victim was diagnosed with a subdural hemorrhage and a massive brain
injury.

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Appellant admitted that his actions were not accidental and that his actions resulted
in injuries to the victim. Appellant also admitted to the existence of the aggravating factor
of particular vulnerability due to age.
The presumptive guidelines sentence for the crime to which appellant pleaded guilty
is a term of imprisonment of 74 to 103 months. Appellant moved the court for a mitigated
dispositional departure. Appellant submitted letters of support from his family members
and other community members to support his motion for departure. The district court heard
victim impact statements and statements in support of appellant. Appellant also gave a
statement and apologized for his actions. The district court denied appellant’s request for
a downward dispositional departure and sentenced appellant to 75 months in prison. This
appeal follows.
D E C I S I O N
Appellant argues that the district court abused its discretion when it refused to grant
a downward dispositional departure and imposed a 75 -month executed sentence pursuant
to the sentencing guidelines.
The Minnesota Sentencing Guidelines prescribe a sentence or range of sentences
that is presumed appropriate. State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014) (quotation
omitted). “[A] sentencing court can exercise its discretion to depart from the guidelines
only if aggravating or mitigating circumstances are present, and those circumstances
provide a substantial and compelling reason not to impose a guidelines sentence.” Id.
(citations and quotations omitted). The district court is not required to give an explanation
when it considers reasons for departure, but elects to impose the presumptive sentence.

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State v. Van Ruler, 378 N.W.2d 77, 81 (Minn. App. 1985). “We review a district court’s
decision to depart from the presumptive guidelines sentence for an abuse of discretion.”
State v. Solberg , 882 N.W.2d 618, 623 (Minn. 2016). “The reviewing court may not
interfere with the sentencing courts exercise of discretion, as long as the record shows the
sentencing court carefully evaluated all the testimony and information presented before
making a determination.” Van Ruler, 378 N.W.2d at 80-81. Only in a “rare” case will an
appellate court reverse a sentencing court’s refusal to depart. State v. Kindem, 313 N.W.2d
6, 7 (Minn. 1981).
Appellant argues he is particularly amenable to probation given his young age, lack
of any serious prior criminal record, his remorse and cooper ation, and the overwhelming
support of his family and community members.
A defendant’s particular amenability to probation is a mitigating factor that may be
used as a reason for a downward dispositional departure. Minn. Sent. Guidelines 2.D.3.a(7)
(2018). “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 indi vidualized
treatment in a probationary setting.” State v. Trog , 323 N.W.2d 28, 31 (Minn. 1982).
While the district court “has discretion to impose a downward dispositional departure if a
defendant is particularly amenable to probation, . . . [ it] is not required to do so.” State v.
Olson, 765 N.W.2d 662, 664-65 (Minn. App. 2009).
The district court reviewed appellant’s presentence investigation report (the PSI),
appellant’s sentencing memorandum and supplemental memorandum, and the letters of

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support sub mitted on appellant’s behalf. At sentencing, the district court heard victim
impact statements from the victim’s parents and three other individuals ; arguments and
recommendations from b oth parties ; statements from appellant’s father and appellant’s
former teacher; and a statement from appellant.
The district court also considered appellant’s young age, 1 the fact that he has
maintained employment, has participated in individual counseling, and has expressed
remorse. However, the district court concluded there were not substantial and compelling
reasons present to grant a downward departure from the presumptive sentence. While the
district court was not required to provide an explanation, the court explained that it imposed
a presumptive sentence for the following reasons.
First, even though numerous letters of support were submitted on appellant’s behalf,
appellant’s wife did not write a letter or provide a statement at sentencing. The court
acknowledged that information contained in the PSI indicated that appellant’s relationship
with his wife was ending and noted concern that appellant’s “primary support person
[would] no longer be there for [him].” Regarding appellant’s wife and mother of his
children, the court went on to note concerns about “the lack of support from a person who
could say more about [appellant’s] abilities with children than anyone else.” These
findings are supported by the record.
Second, the court noted that the PSI “reflects a lack of insight” as to how the offense
impacted the victim and his family. Instead, appellant focused on himself and his family.

1 Appellant was 23 years old at the time of the offense.

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This, the district court noted, was “the strongest indicator . . . that a departure was not
justified.” This is supported by the record. The PSI writer concluded that appellant “shows
minimal insight as to how the instant offense has impacted the lives of his victim as well
as the victim’s family.” The PSI writer explained that when asked about the first thing that
comes to mind when thinking of the trouble appellant has been in, appellant responded “not
being able to be with my kids.” When asked who has been affected by his actions, appellant
responded that his family, children and marriage have been affected. 2
The district court carefully considered all of the testimony and information
presented to it in determining whether to grant appellant’s request for a downward
dispositional departure. The district court’s findings regarding its reasons for denying the
downward departure are s upported by the record. The district court did not abuse its
discretion when it denied appellant’s request for a downward dispositional departure.
Affirmed.

2 The record demonstrates the following impacts on the victim and his family: the vict im
is blind due to the assault; he was not mobile at the age of 16 months and his future mobility
is unknown; the sensory and optical portions of the victim’s brain appear to have no
function; and he must regularly attend occupational, physical, and speech therapy. Due to
the child’s new care requirements, the victim’s mother left her employment and the family
has struggled with housing since the assault.