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This opinion will be unpublished and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
A19-0590

State of Minnesota,
Respondent,

vs.

Chad Joseph Shaw,
Appellant.

Filed February 3, 2020
Affirmed in part, reversed in part, and remanded
Bryan, Judge

Crow Wing County District Court
File No. 18-CR-17-1917

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

Donald F. Ryan, Crow Wing County Attorney, Brainerd, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Bryan, Judge.
U N P U B L I S H E D O P I N I O N
BRYAN, Judge
In this direct appeal from the judgment of conviction for multiple controlled-substance
offenses, appellant raises the following three claims: (1) that the district court abused its

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discretion by denying his motion for a downward dispositional sentencing departure; (2) that
his conviction of fourth-degree sale must be reversed because the controlled substance at issue
for that charge is not a Schedule I, II, or III substance, and therefore, its sale is not prohibited
under the statute; and (3) that the district court erred by entering convictions for three offenses
of which he was acquitted.
We affirm in part, reverse in part, and remand to the district court to correct the warrant
of commitment to vacate convictions relating to counts three, six, seven, and eight.
FACTS
Respondent State of Minnesota charged appellant Chad Joseph Shaw by amended
complaint with the following nine offenses: felony first-degree sale of a controlled
substance (count one); felony second-degree possession of a controlle d substance (count
two); felony fourth-degree sale of a controlled substance (alprazalom) (count three); felony
fifth-degree possession of a controlled substance (the state charged appellant with
committing four separate fifth-degree possession offenses in counts four through seven );
misdemeanor possession of a hypodermic needle (count eight ); and petty misdemeanor
possession of drug paraphernalia (count nine). Shaw exercised his right to a jury trial, and
at the close of the state’s case, Shaw moved for judgment of acquittal, focusing
“specifically” on the possession of a hypodermic needle offense and two of the fifth-degree
possession offenses. The state agreed that those three offenses should be “dismissed,” and
the district court granted Shaw’s motion for judgment of acquittal on those offenses (counts
six, seven, and eight). The jury found Shaw guilty of the remaining six offenses.

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At sentencing, Shaw moved for a downward dispositional departure. The
presentence investigation (PSI) r eport filed with the court reflects several prior criminal
offenses, including multiple convictions for domestic assault, assault of an unborn child,
endangering a child, and several convictions involving controlled substances. In addition,
the PSI reflects that a stay of execution was previously revoked. The district court denied
the departure motion and sentenced him to 75 months in prison on the first -degree sale
offense (count one). The district court did not enter a conviction on the second -degree
possession offens e (count two ). The warr ant of commitment reflects that, despite the
court’s judgement of acquittal on counts six, seven, and eight, convictions were entered on
these three offenses. The court entered convictions on the four remaining offenses (three,
four, five, and nine). This appeal follows.
D E C I S I O N
I. Denial of Motion for Downward Departure

Shaw challenges the district court’s denial of his motion for a downward
dispositional departure from the otherwise applicable sentencing guidelines . We “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). Appellate courts reverse departu re decisions only in
rare cases. See State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). “A district court abuses
its discretion when its reasons for departure are legally impermissible and insufficient
evidence in the record justifies the departure.” State v. Solberg, 882 N.W.2d 618, 623
(Minn. 2016).

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The Minnesota Sentencing Guidelines prescribe “a sentence or range of sentences
that is presumed to be appropriate.” Soto, 855 N.W.2d at 308 (quotation omitted). A
district court may depart from the presumpt ive sentencing guidelines only if substantial
and compelling circumstances are present. Solberg, 882 N.W.2d at 623 . Substantial and
compelling circumstances are those that make a case atypical. Taylor v. State, 670 N.W.2d
584, 587 (Minn. 2003).
A dispositional departure occurs when the district court orders a disposition other
than that recommended in the sentencing guidelines. Minn. Sent. Guidelines 1.B.5.a
(2016). A district court may impose a downward dispositional departure from a
presumptive prison commitment if the defendant is particularly amenable to treatment in a
probationary setting. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Factors relevant in
determining whether a defendant is particularly amenable to treatme nt in a probationary
setting include “the defendant’ s age, his prior record, his remorse, his cooperation, his
attitude while in court, and the support of friends and/or family.” Id.
Shaw argues that the district court abused its discretion by denying his motion for a
dispositional departure because his “prior record, prior success on probation, and medical
conditions supported placing him on probation instead [of] sending him to prison.” We
disagree. In denying Shaw’s motion for a dispositional departure, the district court found:
The presentence investigation does not provide the
Court with any of the substantial and compelling reasons that
would warrant [departing], nor do I believe the information
that was submitted in the memorandum rise[s] to the level that
warrants a level for substantial and compelling reason for a
departure.

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The record supports the district court’s decision. The P SI filed with the district court
reflects several prior criminal offenses, including multiple convictions for domestic assault,
assault of an unborn child, endangering a child, and several convictions involving
controlled substances. In addition, the PSI reflects that a stay of execution was previously
revoked. The district court carefully considered the evidenc e presented at the sentencing
hearing and concluded that the information provided did not establish substantial and
compelling reasons for a departure. Moreover, “even if there is evidence in the record that
the defendant would be amenable to probation,” a district court is not required to depart
from a presumptively executed prison sentence. State v. Olson , 765 N.W.2d 662, 663
(Minn. App. 2009); see also State v. Pegel , 795 N.W.2d 251, 253 (Minn. App. 2011)
(“[T]he mere fact that a mitigat ing factor is present in a particular case does not obligate
the court to place [a] defendant on probation . . . .” (quotation omitted)). The district court
did not abuse its discretion by denying Shaw’s motion for a downward dispositional
departure.
II. Conviction for Fourth-Degree Sale of a Controlled Substance (Count Three)
Shaw challenges his conviction of fourth-degree sale of a controlled substance (count
three) in violation of Minn. Stat. § 152.024, subd. 1(1) (2016), for his possession of
alprazolam with the intent to sell it. Under Minn. Stat. § 152.024, subd. 1(1), a person is
guilty of controlled -substance crime in the fourth degree if he or she “sells one or more
mixtures containing a controlled substance classified in Schedule I, II, or III, except
marijuana or Tetrahydrocannabinols.” Alprazolam is not listed as a Schedule I, II, or III
controlled substance; instead it is a Schedule IV controlled substance. See Minn.

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Stat. § 152.02, subd. 5 (2016) (listing alprazolam as a schedule IV drug). The state
acknowledges that “alprazolam” is listed as a Schedule IV controlled substance and “does
not oppose [Shaw’s] request that [his] conviction for Count III” be reversed. We agree.
Therefore, we reverse Shaw’s conviction of fourth -degree sale of a controlled substance
and remand to the district court to vacate the conviction.
III. Convictions for Counts Six, Seven, and Eight
The district court granted Shaw’s motion for judgment of acquittal on three offenses
(counts six, seven, and eight ). On app eal, Shaw contends that the district court erred by
entering convicti ons on th ese three counts. We agree. The warrant of commitment is
“conclusive evidence of whether an offense has been formally adjudicated.” Spann v.
State, 740 N.W.2d 570, 573 (Minn. 2007) (quotation omitted). Here, the warrant of
commitment reflects that the district court inadvertently entered convictions on counts six,
seven, and eight. The state agrees that Shaw should not have been convicted of these three
offenses. Accordingly, we reverse Shaw’s convictions of counts six, seven, and eight, and
remand for correction of the warrant of c ommitment. See Minn. R. Crim. P. 27.03, subd.
10 (providing that “[c]lerical mistakes in a judgment, order, or in the record arising from
oversight or omission may be corrected by the court at any time, or after notice if ordered
by the court”).
Affirmed in part, reversed in part, and remanded.