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This opinion will be unpublished and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
A19-0380

State of Minnesota,
Respondent,

vs.

Myron Lynn Williams,
Appellant.

Filed December 9, 2019
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-CR-17-27288

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

Michael O. Freeman, Hennepin County Attorney, Patrick R. Lofton, Assistant County
Attorney, Minneapolis, 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; Slieter, Judge; and Randall,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment 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
LARKIN, Judge
Appellant challenges his sentence for felony driving while impaired (DWI),
arguing that the district court abused its discretion by denying his motion for a downward
dispositional or durational sentencing departure. We affirm.
FACTS
In October 2017, r espondent State of Minnesota charged appellant Myron Lynn
Williams with one count of felony DWI—operating a motor vehicle unde r the influence
of alcohol and one count of felony DWI—refusing to submit to chemical testing. Williams
pleaded guilty as charged. As support for his guilty plea, Williams admitted that he parked
his car in the parking lot of a liquor store and fell asleep, with a bottle of tequila, while the
keys were in the car’s ignition. He agreed th at he was in control of his car, that he was
under the influence of alcohol a t the time, and that he refused to take a breath test. The
district court accepted Williams’s guilty plea and ordered a p resentence investigation
(PSI).
The PSI detailed Will iams’s extensive criminal history , which included 13 prior
felony convictions, one of which was for criminal vehicular operation . That conviction
stemmed from a police chase in which Williams drove wi th an alcohol concentration
greater than 0.20 and crashed into another vehicle, causing the driver of that vehicle to
suffer several fractures and a traumatic brain injury. His prior convictions also include
attempted murder, robbery, burglary, and controlled-substance crimes. The PSI noted that
while Williams was on pretrial release for the current offense, he was ordered to abstain

3
from alcohol and controlled-substance use. His compliance was “subpar at best,” because
he either tested positive for marijuana or failed to test as directed over half of the times he
was tested. The PSI also noted that Williams had been charged with prohibited person in
possession of a firearm and three counts of threats of violence in Ramsey County while
awaiting sentencing for the underlying offense and that he was allegedly intoxicated at the
time of the new offenses.
At sentencing , Williams moved for a downward dispositional or durational
departure. During the sentencing hearing, his attorney acknowledged that despite going
“to three [treatment] sessions,” Williams had a “relapse weekend” and was charged with
new offenses. After hearing the parties’ arguments on the departure request s, the district
court explained that it would rely on the PSI in making its determination, noting that the
PSI wa s “extremely comprehensive, [and had] a lot o f information in it that [gave] . . .
some guidance in terms of what to do.” Based on the district court’s consideration of the
record, it determined that Williams had failed to establish substantial and compelling
reasons for a departure . It concluded that “[t]here really are no reasons . . . to do a
dispositional departure,” and it was “going to follow the recommendations and the [PSI].”
The district court explained:
I don’t see this—I don’t see you as a person who would
be amenable to probation. You have nine criminal history
points, sir, and nine criminal history points makes you a career
offender. So that’s—you’re in the big time now. And you
made these decisions and [had] opportunities prior to getting
before me today in which you could have addressed some of
these issues had you wanted to. Saying that you didn’t have
any—any opportunities to go through treatm ent, I just can’t
believe tha t. . . . I mean, you’re here because of your own

4
decisions and because of your own behavior. And I think that
had you had the wherewithal to stop drinking, to get some help,
to go and ask for help instead of waiting for someone to hand
you an opportunity to go through treatment, I don’t think you’d
be here right now.

The district court sentenced Williams to serve a presumptive 72-month prison term.
Williams appeals.
D E C I S I O N
“The sentences provided in the [Minnesota Sentencing Guidelines] Grids are
presumed to be appropriate for the crimes to which they apply.” Minn. Sent. Guidelines
2.D.1 (Supp. 2017). Appellate courts “afford the [district] court great discretion in the
imposition of sentences and reverse sentencing decisions only for an abuse of that
discretion.” State v. Soto, 855 N.W.2d 303, 307-08 (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. at 308
(citations and quotations omitted). “When factors that may justify departing from the
presumptive sentence are present, a court must exercise its discretion and consider the
factors.” State v. Kier, 678 N.W.2d 67 2, 677 (Minn. App. 2004) , review denied (Minn.
June 15, 2004). But “the presence of mitigating factors does not obligate the court to place
a defendant on probation or impose a shorter term than the presumptive term.” Wells v.
State, 839 N.W.2d 775, 781 (Minn. App. 2013) (quotation omitted), review denied (Minn.
Feb. 18, 2014). “[A]s long as the record shows the [district] court carefully evaluated all
the testimony and information presented [to it] before making a determination,” this court

5
will not interfere with the district court’s decision to impose the presumptive sentence.
State v. Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted).
When considering a dispositional departure, the district court focuses “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 (Minn. 1983). “[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).
“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 determinatio n whether a defendant is particularly suitable to individualized
treatment in a probationary setting.” State v. Trog , 323 N.W.2d 28, 31 ( Minn. 1982).
However, 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).
Williams contends that the district court abused its discretion by denying a
downward dispositional departure because he is particularly amenable to probation and
treatment. As support, h e points to his “demonstrated motivation for treatment ,” his

6
remorse, cooperation, attitude while in court, and his steady employment. 1 The record
refutes Williams’s argument. As the PSI notes, Williams failed to comply with the terms
of pretrial release on this offense. He failed to report for chemical testing , and when he
did report , he often tested positive for marijuana. Although W illiams atte nded three
outpatient chemical-dependency treatment sessions while on conditional release, he had a
“relapse weekend” during which he allegedly committed new offenses. This record does
not establish a “demonstrated motivation for treatment. ” Moreover, it falls far short of
establishing that Williams is particularly amenable to treatment, as is required for a
dispositional departure. See Soto, 855 N.W.2d at 309.
Williams complains that “the district court appeared to pay particular attention to
[his] criminal history a nd nine criminal history points ,” “did not weigh the factors for a
departure,” and “did not give full and due consideration to Williams’s motivation for
sobriety and amenability to treatment.” Those complaints are unpersuasive. First, as
indicated above, a departure requires particular amenability to treatment, and Williams
does not meet that standard. Second, the district court’s comments at sentencing indicate
that it considered Williams’s proffered reasons for departure. And third, Williams does
not provide, and we fail to discern, a reason why the district court should not have weighed
his criminal-history score of nine heavil y against him. A high criminal -history score

1 We note that the Minnesota Sentencing Guidelines prohibit the district court from
considering “occupation or impact of sentence on profession or occupation,”
“employment history,” “employment at time of offense,” “employment at time of
sentencing,” and other “[e]mployment factors” as reasons for departure. Minn. Sent.
Guidelines 2.D.2.c.(1)-(4) (Supp. 2017).

7
reasonably indicates that the offender cannot be counted on t o avoid antisocial activity,
which is a basis for favoring imprisonment over probation . Cf. State v. Austin , 295
N.W.2d 246, 251 (Minn. 1980) (stating that the decision to revoke probation “cannot be a
reflexive reaction to an accumulation of technical vi olations but requires a showing that
the offender’ s behavior demonstrates that he or she cannot be counted on to avoid
antisocial activity” (quotations omitted)).
In sum, the record supports the district court’s conclusion that “[t]here really [were]
no reasons for . . . a dispositional departure.”
Unlike a dispositional departure, “[d]urational departures may be justified by
offense-related reasons only.” State v. Rund , 896 N.W.2d 527, 533 ( Minn. 2017).
“Substantial and compelling circumstances are those demonstrating that the defendant’s
conduct in the offense of conviction was significantly more or less serious than that
typically involved in the commission of the crime in question.” State v. Jones , 745
N.W.2d 845, 848 (Minn. 2008) (quotation omitted).
Williams contends that the district court abused its discretion by denying a
durational departure because “[his] conduct was significantly less serious than the typical
DWI.” Williams notes that he “was found sleeping in a vehicle parked in a parking lot,”
which is “substantially less serious than . . . a person actually driving a vehicle and putting
others at risk.”
Williams’s argument is unavailing because, as the state counters, the law treats
driving and being in control of a motor vehicle the same for purposes of DWI. See Minn.
Stat. § 169A.20, subd. 1 (2016) (“It is a crime for any person to drive, operate, or be in

8
physical control of any motor vehicle . . . when: (1) the person is under the influence of
alcohol[.]”); State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992) (stating that “physical
control” is more comprehensive than either “drive” or “operate” and that the term is to be
given the broadest possible effect to deter inebriated persons from getting into v ehicles
except as passengers).
Also unavailing is Williams’s argument that his conduct was “substantially less
serious than other DWI offenders who received even shorter sentences.” He relies on
caselaw examples of sentences in other DWI cases. See State v. Rasinski , 472 N.W.2d
645, 647-51 (Minn. 1991) (reviewing stayed sentences for an offender who was placed on
probation after convictions for criminal vehicular operation resulting in death ); State v.
Williams, 414 N.W.2d 781, 782-83 (Minn. App. 1987) (reviewing sentence of 36 months
imprisonment, an upward durational departure), review denied (Minn. Jan. 15, 1988). But
there is no indication that those offenders had criminal -history scores as high as
Williams’s.
On this record, we are not persuaded that the district court abused its discretion by
denying a durational departure.
Affirmed.