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This opinion will be unpublished and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
A19-0416

State of Minnesota,
Respondent,

vs.

Josi Ann Adelman,
Appellant.

Filed March 16, 2020
Affirmed
Smith, Tracy M., Judge

Stearns County District Court
File No. 73-CR-18-2030

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

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

Melissa Sheridan, Eagan, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Jesson, 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
On a direct appeal from her conviction for first-degree controlled-substance crime,
appellant Josi Ann Adelman challenges the district court’s decision to deny her motion for
a downward durational sentencing departure. We affirm.

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FACTS
Based on admissions made at her plea hearing, Adelman sold methamphetamine to
a police informant twice in February 2018. Adelman admitted that on the first occasion she
sold an ounce, or about 28 grams, of meth amphetamine for $800 and that on the second
occasion she sold half an ounce, or about 15 grams, for $425.
Adelman was charged with two counts of first- and one count of second-degree sale
of a controlled substance. Pursuant to a plea agreement, Adelman pleaded guilty to the first
count of first-degree sale and the state dismissed the other two counts. The plea agreement
further specified that the state would recommend a sentence of 98 months’ imprisonment,
which was at the bottom of the sentencing guidelines range, and that the state would not
seek an upward durational depa rture. The district court accepted Adelman’s plea and
ordered a presentence investigation (PSI).
Almost two months later, Adelman moved to withdraw her guilty plea. She stated
that she had agreed to the plea deal becaus e she thought that, upon being sentenced, she
would be eligible to participate in the Mi nnesota Department of Corrections Challenge
Incarceration Program and that completing the program would have reduced the time she
would have had to spend in prison. But Adelman learned that she would not be eligible for
the program, and she claimed that, had she known that, she would have sought a different
resolution for her case. The state did not oppose Adelman withdrawing her guilty plea, so
the district court permitted Adelman to wit hdraw her plea and set the case on for an
omnibus hearing.

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After a number of additional hearings in the case, Adelman decided to enter another
plea agreement with the state. She again pleaded guilty to the first count of first-degree
sale, and the state dismissed the other two coun ts. As part of the plea, the parties agreed
that Adelman would argue for a downward dur ational departure and the state would not
seek an upward departure from the presumptiv e sentence of 115 m onths’ imprisonment.
The district court accepted Adelman’s plea and ordered an update to the earlier PSI.
At the sentencing hearing, Adelman argu ed, through her atto rney, for both a
downward dispositional departure and a downward durational de parture. With respect to
the downward durational departure, she argued that she “was homeless, unemployed, [and]
without a vehicle.” She asserted that the informant was her cousin and that she had agreed
to sell the drugs in exchange for help getting a place to stay. Adelman also claimed that she
was originally working with the state as part of a larger investigation and that she was not
the “big fish in this case.”
The district court denied both of Adel man’s motions for a downward departure.
Regarding durational departure, the district court determined that Adelman’s offense was
not less serious than other first-degree sale offenses. 1 The district court then sentenced
Adelman to the presumptive sentence of 115 months’ imprisonment.
This appeal follows.

1 Adelman does not appeal the district cour t’s denial of her motion for a downward
dispositional departure.

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D E C I S I O N
I. The district court acted within its di scretion when it denied Adelman’s motion
for a downward durational departure.

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 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). When the
district court imposes a presumptive sentence, appellate courts will not interfere “as long
as the record shows the sentencing cour t 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). Appellate courts will reverse a district court’s
refusal to depart from a presumptiv e sentence only in a “rare” case. State v. Walker, 913
N.W.2d 463, 468 (Minn. App. 2018).
A sentence or range of sentences pres cribed under the Minnesota Sentencing
Guidelines “is presumed to be appropriate.” Soto, 855 N.W.2d at 308 (quotation omitted).
To maintain uniformity and proportionality in sentencing, departures from the guidelines
sentence are discouraged. State v. Rund, 896 N.W.2d 527, 532 (M inn. 2017). A district
court may depart from the presumptively appropriate guidelines sentence only if
“identifiable, substantial, and comp elling circumstances” warrant doing so. State v.
Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (quotation omitted).

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Even if grounds exist to justify departure, the district court does not need to depart
from the guidelines. State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). And, “[a]lthough
the [district] court is required to give reasons for departure, an explanation is not required
when the court considers reasons for depart ure but elects to impose the presumptive
sentence.” State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985).
For durational departures, substantial a nd compelling circumst ances “are those
which demonstrate that the defendant’s conduct was significantly more or less serious than
that typically involved in the commission of the crime in question.” Rund, 896 N.W.2d at
532 (quotations omitted). “Dura tional departures may be ju stified by offense-related
reasons only.” Id. at 533.
Adelman argues that her conduct was signifi cantly less serious than that typically
involved in the commission of first-degree controlled-substance crime. She claims that she
was not the mastermind of the larger drug organization and that she sold the drugs because
she was homeless and a drug addict and believed that her cousin, the informant, could help
her get out of her situation. She also asserts that she took full responsibility for her actions
and was remorseful.
Many of Adelman’s arguments walk the line between offense-related and offender-
related reasons for departure. In particular, courts generally view remorse and acceptance
of responsibility as offender-related reasons for departure and thus do not consider them in
the context of a durational departure. See Rund, 896 N.W.2d at 533; Solberg, 882 N.W.2d
at 625. But a court may consider remorse if it “relates back to” or bears on the seriousness
of the conduct of the offense. Solberg, 882 N.W.2d at 625-26. Even assuming that

6
Adelman’s remorse relates back to her offense, however, nothing suggests that Adelman’s
case is the type of rare case that warrants reversing the district court’s imposition of a
presumptive sentence.
The district court heard and considered the same arguments that Adelman now
makes on appeal. The district court also c onsidered the PSI report, a report from a
dispositional advisor, the results of a rule 25 assessment, and the programming that
Adelman completed. It gave the parties a chance to correct any factual errors or omissions
in the record. The district c ourt even took a recess during th e sentencing hearing to make
sure it had an opportunity to fully consider letters written in support of Adelman that
Adelman’s counsel had received the day of the hearing. The record shows that the district
court gave serious consideration to Adelman’s request for a departure and determined that
a presumptive sentence was appropriate. No further explanation was required. See Van
Ruler, 378 N.W.2d at 80.
While no explanation was required, the district court did explain that it was
imposing a presumptive sentence because, based on the quantity of methamphetamine sold,
Adelman’s conduct was not less serious than other first-degree sales. The district court also
indicated that it was persuaded by the state’s argument that, even though Adelman was an
addict, she was still victimizing other people by distributing that quantity of drugs.
Given the court’s consideration of the en tire record, as well as its reasonable
conclusion that Adelman’s conduct was not significantly less serious than the typical first-
degree sale, the district court did not abuse its discretion by denying Adelman’s motion for
a downward durational departure.

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II. Adelman’s pro se arguments lack merit.

Adelman raises several arguments in her pro se supplemental brief. We address each
in turn.
A. The district court did not part icipate in the plea agreement.

Adelman claims the district court inappropriately participated in her plea agreement
and had made up its mind that it would not grant her a duratio nal departure. “A district
court judge must not participate in plea negotiations.” Minn. R. Crim. P. 15.04, subd. 3.
Adelman claims that the judge inappropriate ly participated in plea negotiations by
meeting with the parties in her chambers be fore Adelman’s plea withdrawal. The judge
explained on the record that the meeting wa s to make sure Adelman understood that her
withdrawal would mean that she was giving up the state’s offer of a bottom-of-the-box
sentence. Nothing in the record suggests that the judge did more than verify that Adelman
understood the implications of her plea wi thdrawal and that she would not necessarily
receive the same offer from the state again.
Adelman also argues that the district court judge’s statement that she is “not known
to give people the bottom of the box regardless of whether or not they go to trial” reveals
that the judge never intended to grant Adelman a downward durational departure. But the
judge immediately clarified that she does de part and takes each matter case-by-case. As
discussed above, the record show s that the district court considered the individual merits
of Adelman’s motion for a do wnward durational departur e. This single comment,
immediately clarified, does not establish that the judge in Adelman’s case had made up her
mind about Adelman’s sentence.

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B. The district court judge show ed no bias against Adelman.

Adelman claims that the district court judge exhibited unfair bias towards her, which
led to the judge denying her motion for a down ward departure. Criminal defendants have
a constitutional right to a fair and impartial judge. Hannon v. State, 752 N.W.2d 518, 522
(Minn. 2008). Appellate courts presume that judges approach cases with a neutral and
objective disposition. State v. Burrell, 743 N.W.2d 596, 603 (Minn. 2008).
Adelman points to a statement by the judge at her plea-withdrawal hearing that she
(the judge) had to prepare a departure report for another case in which she departed from a
presumptive sentence. Adelman claims that th is statement shows that the judge “had no
interest in the exhaustion that would come ov er her in the event [the judge] would also
need to prepare one for [Adelman].” Adelman’s claim has no basis in the record. Nothing
in the judge’s statement implied that the j udge viewed preparing a departure report as
onerous or burdensome.
Next, Adelman questions the judge’s use of first-person statements in her ruling on
Adelman’s motion for a downward departure.2 She claims that these statements show that
the judge was making her decision based on personal opinions rather than based on facts.
But our examination of the record assures us that the use of first-person statements did not
reflect any inappropriate personal opinion on which the judge was relying to reach a
decision. Instead, it simply reflected a recognition by the district court judge that she was

2 Adelman highlights phrases that the judge used, such as “[d]o I believe,” “[d]o I think,”
and “I’m not so sure.”

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deciding, not someone else. As discussed above, the record shows that the district court
appropriately considered the facts and arguments of both parties.
Adelman also notes that the judge made comments about how the judge was older
than Adelman and argues that the judge was inappropriately considering age in determining
Adelman’s sentence. The judge, however, was only making a comment about how
Adelman’s age did not weigh in Adelma n’s favor under an analysis of the Trog factors.
See State v. Trog , 323 N.W.2d 28, 31 (Minn. 1982) ( holding that a defendant’s age was
relevant to whether a downward dispositional departure was appropriate). These comments
reflect no inappropriate bias against Adelman.
Lastly, Adelman claims that the judge inappropriately insinuated that Adelman was
a bad mother. But the district court did not conclude that Adelman was a bad mother. The
district court was simply explaining why it concluded that the reports saying Adelman was
a good mother were “a little misleading.” The district court determined that the reports did
not weigh strongly in Adelman’s favor fo r a downward departure because her minor
children were living in Californi a, not with Adelman. This reasoning does not show that
the district court judge was biased against Adelman.
In sum, the record shows that the distri ct court judge exhibited no bias against
Adelman.
C. There is insufficient evidence to conclude that Adelman received
ineffective assistance of counsel.

Adelman next claims that her lawyer misinformed her about information relevant to
her plea agreement and pressured her to take the agreement. To prevail on an ineffective-

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assistance-of-counsel claim, an appellant must show that their “counsel’s performance fell
below an objective standard of reasonableness, and that a reasonable probability exists that
the outcome would have been diff erent but for counsel’s errors.” State v. Rhodes , 657
N.W.2d 823, 842 (Minn. 2003) (quotation omitted) (applying the test from Strickland v.
Washington, 466 U.S. 668, 1 04 S. Ct. 2052 (1984)). These tw o prongs are known as the
performance and prejudice prongs , and appellate courts need not address both prongs if
one is determinative. Id.
Adelman claims that her lawyer made “unt rue statements” to get her to accept the
original plea agreement. Adel man claims that her attorney told her that she would
immediately be eligible for the Challenge Incarceration Pr ogram, which was incorrect.
Adelman then describes several conversations that she had with her lawyer about their legal
strategy. She claims that, in these conversations, her attorney pressured her to take the plea
agreement and discouraged her from requesting the judge remove herself for bias. None of
these conversations or evidence of these conversations appears in the record. “An appellate
court may not base its decision on matte rs outside the record on appeal.” State v. Taylor,
650 N.W.2d 190, 204 n.12 (Minn. 2002).
Generally, “[o]nce a party takes a direct appeal, any claim raised in that appeal will
not be considered in a petition for postconviction relief.” Dukes v. State, 621 N.W.2d 246,
251 (Minn. 2001) (citing State v. Knaffla , 243 N.W.2d 737, 741 (M inn. 1976)). But if a
party raises an ineffective-assistance-of-cou nsel claim that relies on evidence not in the
record, an appellate court may decline to reach the merits of the claim and permit the party
to raise the issue in a postconviction petition. See State v. Gustafson, 610 N.W.2d 314, 321

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(Minn. 2000). To the extent that Adelman’s cl aims rely on discussions that took place
outside the record, we decline to reach the merits of the issue, without prejudice to
Adelman’s ability to bring those claims in a timely petition for po stconviction relief. See
id.
Adelman also claims that the transcript of a scheduling hearing misquotes her3 and
that she had tried to inform the district court that she wanted another attorney. She claims
that the district court’s response that it does not “get involved in court-appointed lawyers”
denied her the opportunity to different an d adequate representation. But Adelman only
raised the issue when the distri ct court was trying to schedu le an omnibus hearing. After
the district court scheduled the omnibus he aring, Adelman did not again state she was
unhappy with her attorney or move for s ubstitute counsel, even though she had three
additional hearings in which to do so.
Even assuming Adelman asked for subs titute counsel, she did not have an
unqualified right to receive it. “[T]he right of an indigent to have counsel does not give
him the unbridled right to be represen ted by counsel of his own choosing.” State v. Reed,
737 N.W.2d 572, 587 (Minn. 2007) (quotation omitted). Adelman gave no reasons to the
district court on why she want ed substitute counsel. A defe ndant’s request for substitute
counsel “will be granted only if exceptional circumstances exist and the demand seems
reasonable.” Id. (quotation omitted). So, while the district court’s statement that it does not

3 The transcript shows that Ad elman said she was “in approval of [her] public defender.”
She asserts that she said “disapproval.” Based on the district court’s response, we assume
that, for purposes of this analysis, Adelman did say “disapproval.”

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“get involved in court-appointed lawyers” was imprecise or even inaccurate, it did not rise
to the level of reversible error.
Affirmed.