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This opinion will be unpublished and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
A19-0840

State of Minnesota,
Respondent,

vs.

Johnny Clifton Johnson,
Appellant.

Filed March 30, 2020
Affirmed
Ross, Judge

Waseca County District Court
File No. 81-CR-18-723

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

Rachel Cornelius, Waseca County Attorney, Waseca, Minnesota (for respondent)

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

Considered and decided by Ross, Presiding Judge; Cochran, Judge; and Segal,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Johnny Johnson p leaded guilty to selling heroin , and the district court sentenced
him to 39 months’ imprisonment —the shortest term in the presumptive-sentence range.
Johnson appeals his sentence, arguing that the district court abused its discretion by

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denying his request for a dispositional departure. We affirm because Johnson failed to
demonstrate that he is particularly amenable to probation.
FACTS
The state charged Johnny J ohnson with two counts of third -degree sale of a
controlled substance. See Minn. Stat. 152.023, subd. 1(1) (2016). Johnson and the state
reached a plea agreement in which the state would dismiss one charge and recommend
the shortest presumptive prison sentence, leaving Johnson free to seek a downward
dispositional departure. Johnson pleaded guilty, admitting that he sold 0.2 grams of heroin.
The district court dismissed one count and ordered a presentence investigation (PSI). The
PSI report detailed Johnson’s challenging upbringing: his father was absent since he was
10, his mother drank excessively, he began using drugs in his youth, and he participated in
gang activity as an adolescent. It also detailed his efforts to achieve and maintain sobriety
and the importance of family in his life.
Johnson moved for a downward dispositional sentencing departure, seeking
probation rather than prison. He emphasized his mental-health challenges, claimed that
prison might exacerbate his criminal behavior, complained that the criminal-justice system
impacts certain ethnic groups more severely than others, and predic ted that a prison term
would not address his chemical dependency. His attorney informed the district court that
Johnson had enrolled in a new drug-treatment program. Johnson opined that h e was “on
the right track,” that his family was involved in his life, and that he wanted to spend time
with his children.

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The district court commended Johnson’s commitment to sobriety but also noted its
public-safety concerns and Johnson’s criminal -history score. The district court denied
Johnson’s departure motion and sentenced him to 39 months in prison , which reflects the
shortest in the presumptive range under the s entencing g uidelines. Johnson appeals the
sentence.
D E C I S I O N
Johnson argues that the district court erroneously denied his departure motion. The
district court has broad discretion in sentencing, State v. Soto , 855 N.W.2d 303, 307 –08
(Minn. 2014), and we see no abuse of discretion here. The district court must impose a
sentence within the presumptive ran ge for a conviction as established in the Minnesota
Sentencing Guidelines , “unless there exist identifiable, substantial, and compelling
circumstances to support a departure.” Minn. Sent. Guidelines 2.D.1 (Supp. 2017). The
guidelines present a nonexclusive list of mitigating factors that “may” justify a departure.
Minn. Sent. Guidelines 2.D.3.a (Supp. 2017). Johnson argues that the district court should
have imposed a probationary sentence because h e is particularly amenable to probation
under two listed factors. Johnson’s arguments are unconvincing.
Particular Amenability to Probation
A defendant’s particular amenability to probation is a mitigating factor that
“may . . . be supported by the fact that the offender is particularly amenable to a relevant
program of individualized treatment in a probationary setting.” Minn. Sent. Guidelines
2.D.3.a.(7) (Supp. 2017). Factors relevant to determining whether a defendant is suited to
treatment in a probationary setting include “the defendant’ s age, his prior re cord, his

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remorse, his cooperation, his attitude while in court, and the support of friends and/or
family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Applying these factors does not
establish that Johnson is amenable to probation, let alone particularly amenable. See
Soto, 855 N.W.2d at 309 (“By requiring a defendant to be particularly amenable to
probation . . . we ensure 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.” (quotation omitted)).
The record here fails to support Johnson’s arguments on the Trog factors. He
concedes that he has a “lengthy prior [criminal] record,” but he argues that t he frequency
of his offenses has tapered off with his age. This circumstance does not favor his position.
Johnson also argues that he demonstrated remorse and was willing to accept responsibility,
but his guilty plea came in a bargain that eliminated one o f the charges against him. The
district court also made no finding about any claim of remorse, and we are in no position
to make the finding on appeal. Regarding whether Johnson has “the support of friends [or]
family,” Trog, 323 N.W.2d at 31, he points to nothing in the record showing that friends
or family would support his efforts to maintain sobriety . A nd the PSI report instead
indicated that family members were involved in the illegal use or sale of drugs. The record
does not inform us about his demean or, and the PSI report’s description of him as
“cooperative” says little. Johnson stresses that he has shown his desire to seek help for his
drug use, and “a menability may . . . be premised on timely observation of motive to
reform.” State v. Malinski , 353 N.W.2d 207, 210 (Minn. App. 1984), review denied
(Minn. Oct. 16, 1984). But in rejecting Johnson’s motion, the district court emphasized

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the risk that Johnson pose d to public safety. Nothing presented by Johnson suggests that
the district court abused its discretion by refusing to depart dispositionally from the
presumptive sentence.
Acceptance into Treatment Program
“In the case of a controlled substance offense conviction,” the district court may
find an offender to be particularly amenable to probation “based on adequate evidence that
the offender is chemically dependent and has been accepted by, and can respond to, a
treatment program in accordance with Minn. Stat. § 152.152.” Minn. Sent. Guidelines
2.D.3.a.(8) (Supp. 2017). The record contains no evidence that Johnson was “accepted by,
and [could] respond to” a commissioner -approved treatment program. Johnson cites his
trial counsel’s oral representation that Johnson had “just enrolled” in a new program , but
this representation is not evidence demonstrating either that Johnson had been accepted in
the program or that he could respond favorably to the treatment program.
We conclude by observing that we generally affirm the district court’s imposition
of a presumptive sentenc e so long as it carefully evaluated the information before it.
State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013), review denied (Minn. Sept. 17,
2013). The district court did so here, additionally citing its public -safety concerns in
denying Johnson’ s motion. We also observe that imposing a presumptive sentence is
generally not an abuse of discretion even assuming that mitigating circumstances exist.
See State v. Olson, 765 N.W.2d 662, 664–65 (Minn. App. 2009). The district court did not
abuse its discretion by imposing a presumptive sentence.
Affirmed.