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This opinion will be unpublished and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
A19-0471

State of Minnesota,
Respondent,

vs.

Scott Allen Lipe,
Appellant.

Filed April 6, 2020
Affirmed
Cochran, Judge

Otter Tail County District Court
File No. 56-CR-16-3236

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

Michelle M. Eldien, Otter Tail County Attorney, Benjamin G. A. Olson, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent)

Brian R. Geis, Fergus Falls, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Segal, Judge; and
Peterson, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment 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
COCHRAN, Judge
In this sentencing appeal, appellant Scott Allen Lipe challenges the district court’s
imposition of the presumptive sentence under the guidelines upon the state’s motion for
resentencing. Because the district court did not abuse its disc retion by imposing the
presumptive sentence under the guidelines, we affirm.
FACTS
In October 2016, the state charged appella nt Scott Allen Lipe with two counts of
driving while impaired (DWI) under Minn. Stat. § 169A.20, subd. 1 (2016), and one count
of obstruction of legal process under Minn. Stat. § 609.50, subd. 1 (2016). Lipe entered
into a plea negotiation with the state that called for Lipe to plead guilty to one DWI count,
and in exchange, the state agreed to dismiss the other two counts. There was no agreement
as to the sentence that Lipe would receive, but the parties were aware that the state would
request a guidelines sentence and Lipe would request a downward departure.
Sentencing was held in April 2018. Ba sed in part on mental-health evaluations
conducted in a separate pending criminal proceeding against Lipe, the district court found
that Lipe was in need of mental-health treatment. Moreover, the district court found that,
in a correctional facility, Lipe would “be repeatedly exposed to negative stimuli . . . [that]
would be highly likely to re sult in an impulsive, aggre ssive, and violent response on
[Lipe’s] part that would create difficulty for the staff at the facility, as well as the potential
for harm to [himself] or others.” Relying heavily on the psyc hiatrist’s evaluation of Lipe
from the other proceeding, the district court de termined that it would be inappropriate to

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sentence Lipe to a correctional facility, and that it was appropriate to order Lipe to inpatient
mental-health treatment. The district court al so determined that Lipe was “particularly
unamenable” to commitment to the department of corrections and that it was appropriate
to dispositionally depart from the presum ptive guidelines sentence of 60 months’
imprisonment. The district court stayed the 60-month prison sentence for seven years and
placed Lipe on probation.
Because of the danger that Lipe posed if unsupervised, the district court ordered, as
a term of probation, that Lipe “be remanded to the custody of the Otter Tail County Sheriff
to be confined until [he] may be transferred directly to a treatmen t facility, and that if
necessary, within the next we ek, a referral be made to the Otter Tail County Human
Services for initiation of an inpatient mental illness commitment by petition filed with the
court.” The district court ordered that “[t]he stay of execution of the jail time is conditioned
upon [Lipe’s] entry into an inpatient treatment program. And if [Lipe is] found, for any
reason, unamenable to inpatient treatment by the court—another judge of this court or for
other reasons, this Court finds that there is then no alternative but to execute prison
sentence.”
Lipe did not enter treatment. The Otter Tail County Department of Human Services
screened Lipe for a possible civil commitment, but determined that Lipe did not meet the
criteria for civil commitm ent because he agreed to and wa nted to enter treatment. Lipe
was unable to facilitate a transfer directly from the Otter Tail County Jail to any private
inpatient treatment program. He remained in the Otter Tail County Jail.

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In June 2018, the state filed a motion to correct sentence u nder Minn. R. Crim.
P. 27.03, subd. 9. Although the state did not appeal the sentence, it argued that the district
court’s sentence was unauthorized by law becau se the district cour t’s findings did not
support a downward dispositional departure. The district court judge who imposed the
original sentence had retired, so a successor judge heard the state’s motion.
Following a hearing, the district court vaca ted Lipe’s original sentence and set the
matter on for resentencing. It did not addr ess the state’s argument that the original
sentencing judge’s findings did not support a dispositional departure. Instead, the district
court found that the original sentence was ambiguous because the sentence did not specify
how the condition that Lipe “be transferred directly to a treatment facility” would be met.
The district court found that the original sentence left Lipe in “limbo” where he was unable
to enter treatment and unable to be released from the Otter Tail County Jail. Because the
original sentence was ambiguous, the district court concluded that the original sentence
must be vacated as unauthorized by law.
At a December 2018 resentencing hearing, the district court considered sentencing
arguments by both parties. Lipe requested that the resentencing court again impose a
downward departure based on his mental-h ealth needs. The state requested a
top-of-the-box guidelines sent ence. The district court cons idered Lipe’s mental-health
needs, but ultimately concluded that given Lipe’s inability to secure inpatient treatment, no
substantial and compelling reasons existed to depart. It imposed the presumptive
guidelines sentence of 60 months in prison.
Lipe appeals.

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D E C I S I O N
Lipe’s appellate brief focuses on the orig inal sentence and the only arguments that
he presents relate to whether the original sentence was supported by a valid basis for
departure. Lipe makes no argument regarding whether the district court erred by vacating
the original sentence under Rule 27.03, subd. 9, based on an ambiguity in the sentence.
Consequently, we construe Lipe ’s appeal as a challenge to the district court’s imposition
of a guidelines sentence instead of a dow nward departure as re quested by Lipe at
resentencing. McKenzie v. State, 583 N.W.2d 744, 746 n.1 (Minn. 1998) (an issue that is
not argued in a brief is deemed waived on appeal). We do not address or comment on the
merits of the district court’s decision to vacate the sentence as unauthorized by law.
We review the district court’s sentencing decision for an abuse of discretion.
State v. Law , 620 N.W.2d 562, 564-65 (Minn. App. 2000), review denied (Minn.
Dec. 20, 2000). The district court has “gre at discretion” in sent encing and “we cannot
simply substitute our judgment for that of the [district] court.” State v. Spain ,
590 N.W.2d 85, 88 (Minn. 1999). But “[a]ppellate courts may vacate or modify a sentence
on many grounds, including that the sentence is unreasonable or inappropriate, or that such
a result is in the interest of fairness and uniformity.” State v. Bertsch, 707 N.W.2d 660,
668 (Minn. 2006) (quotation and citation omitted).
The sentences provided by the Minnesota Se ntencing Guidelines are presumed to
be appropriate. State v. Reece, 625 N.W.2d 822, 824 (Minn. 2001). It is only in “rare”
cases that an appellate court will reverse the district court’s refusal to depart because, even
when substantial an d compelling circumstances ar e present, the Minnesota

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Sentencing Guidelines provide on ly that the district court may depart. State v. Kindem ,
313 N.W.2d 6, 7 (Minn. 19 81). If a defendant request s a downward dispositional
departure, the district court must consider the circumstances for and against departing.
State v. Mendoza , 638 N.W.2d 480, 48 3 (Minn. App. 2002), review denied (Minn.
Apr. 16, 2002).
A downward dispositional departure from a prison sentence to probation may be
justified if the defendant is particularly amenable to probation or if probation would be best
for the defendant and for society. State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983);
State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); State v. Wright, 310 N.W.2d 461, 462-63
(Minn. 1981). Factors that courts may cons ider in determining whether a defendant is
particularly amenable to pr obation include his “age, his pr ior record, his remorse, his
cooperation, his attitude while in court, a nd the support of friends and/or family.” Trog,
323 N.W.2d at 31.
The district court considered the mental-h ealth issues that were the basis of the
departure in the original sentence and that we re raised again by Lipe at resentencing, but
concluded that those issues were not a substantial and co mpelling reason to depart from
the presumptive sentence. The district court recognized that the original sentencing judge
informed Lipe that if mental-health treatment was not available, the only option would be
to execute the prison sentence. Because no treatment option had been identified at the time
of resentencing and because Lipe posed a public safety risk if released without treatment,
the district court determined that Lipe was no t amenable to probati on. Under our highly
deferential standard of review, we cannot c onclude that the district court abused its

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discretion by denying Lipe’s de parture request and sentencing Lipe to a presumptive
guidelines sentence. Consequently, we affirm the district court’s sentence.1
Affirmed.

1 On appeal, Lipe relies in part on Minn. Stat. § 609.1055 (2016) to argue that a departure
was appropriate. That statute gives a sentencing court the discretion, when consistent with
public safety, to place an offender with a serious and persistent mental illness on probation
when he would otherwise be committed to the commissioner. But the decision to place the
offender on probation is discretionary, a nd because the resentencing court considered
Lipe’s mental-health problems before denying Li pe’s request to be pl aced on probation,
the district court did not violate Minn. Stat. § 609.1055 by imposing a prison sentence.