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This opinion will be unpublished and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
A19-0881

State of Minnesota,
Respondent,

vs.

Jason David Utto,
Appellant.

Filed January 13, 2020
Affirmed
Larkin, Judge

St. Louis County District Court
File No. 69HI-CR-17-362

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

Mark S. Rubin, St. Louis County Attorney, Tyler Kenefick, Assistant County Attorney,
Jeffrey M. Vlatkovich, Assistant County Attorney, Hibbing, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Larkin, Judge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
In this direct appeal from judgment of conviction for third-degree assault, appellant
contends that the district court abused its discretion by denying his motion for a downward
dispositional departure, asserting that he is particularly amenable to probation. We affirm.
FACTS
On May 17, 2017, respondent State of Minnesota charged appellant Jason Da vid
Utto with felony domestic assault, domestic assault by strangulation , a nd third -degree
assault. The complaint alleged that, on May 11, 2017, Utto struck his wife in the face
repeatedly, choked her, and pulled her off a toilet, which caused her to hit the back of her
head on the toilet seat.
In September 2018, Utto pleaded guilty to third -degree assault. In exchange, the
state agreed to dismiss the two other charges , to a sentence at the “low end ” of the
presumptive range, and that Utto would move for a downward dispositional departure at
sentencing. The probation department conducted a presentence investigation (PSI) and
reported that Utto had “a significant criminal history , including 12 prior felony charges”
and that Utto “was on parole at the time of the offense.”
The sentencing hearing was initially scheduled for February 21, 2019, but Utto did
not appear. Utto’s counsel informed the court that Utto’s car had broken down on the way
to the hearing. The hearing was rescheduled for February 28, but Utto once again failed to
appear. There was a concern that Utto may have been confused about which courthouse
to go to, but the district court confirmed that Utto never checked in at the other courthouse.

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The district court issued a warrant for Utto’s arrest and directed Utto’s counsel to advise
Utto to turn himself in immediately. Utto did not turn himself in on the warrant. Instead,
he appeared out of custody for the third sentencing hearing on March 21.
Utto moved for a downward dispositional departure , asserting that he was
particularly amenable to probation. The district court denied the motion and sentenced
Utto to a presumptive term of 29 months of imprisonment. In denying the motion, the
district court reasoned that Utto had never been successful on probation, that the offense
occurred while he was on parole, and that he had not turned himself in on the warrant. The
district court acknowledged that Utto had made “considerable strides” since the offense—
including that he had obtained employment and was caring for a newborn child—but stated
that it could not “ignore the severity of the conduct” underlying the offense. Utto 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 ( 2016). “[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.” State v. Soto , 855 N.W.2d 303, 308 (Minn. 2014) (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 672, 677 (Minn. App. 2004), review denied (Minn. June 15, 2004). But we

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generally will not interfere with a presumptive sentence, even if there are grounds that
would justify a departure. State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006).
Appellate courts “afford the [district] court great discretion in the imposition of
sentences and reverse sentencing decisions only for an abuse of that discretion.” Soto, 855
N.W.2d at 307-08 (quotation omitted). “[A]s long as the record shows the [district] court
carefully evaluated all the testimony and information presented [to it] before making a
determination,” we will not interfere with the district court’s decis ion to impose a
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 presumptive 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 comp elling circumstances that are necessary to justify a departure.” Id. at 309
(quotation omitted).
Relevant factors for determining whether the defendant is particularly amenable to
probation include the defendant’s age, prior criminal record, remorse, cooperation, attitude
in court, and support of friends and family. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
However, a district court is not required to depart from the presumptive-sentence range

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even if there is evidence in the record that the defen dant would be amenable to probation.
State v. Olson, 765 N.W.2d 662, 663 (Minn. App. 2009).
Utto contends that the district court abused its discretion because it relied on the
seriousness of the offense to deny a dispositional departure. He cites State v. Solberg and
argues that the seriousness of the offense was not a proper consideration. 882 N.W.2d 618
(Minn. 2016). Although the Minnesota Supreme Court in Solberg stated that a
dispositional departure “ typically focuses on characteristics of the defendan t,” id. at 623
(emphasis added), caselaw indicates that offense-related factors can provide a basis to deny
a dispositional departure. See, e.g., Soto, 855 N.W.2d at 313 ( concluding that the district
court abused its discretion in granting a downward dispositional departure “[g]iven the
brutality of the crime and th e absence in the record of any substantial and compelling
circumstances that distinguish Soto from other defendants ” (quotation omitted) ); Pegel,
795 N.W.2d at 254-55 (affirming denial of a dispositional departure based in part on the
effect of the offense on the victim). Thus, the district court did not abuse its discretion by
considering the seriousness of the offense.
Utto also contends that the district court failed to consider facts showing that he was
particularly amenable to probation. He points to his acceptance of responsibility for his
conduct, his remorse for the harm he caused his wife, his cooperation during the
proceedings, his commitment to rehabilitation, and his success in the community on pretrial
release for over one year. The district court recognized that Utto had made progress since

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the offense, had maintained employment, and was caring for his newborn child. 1
Nevertheless, the district court explained:
[T]he reality is that . . . the PSI has said that you’ve never been
successful on probation and that [this] offense occurred while
you were on parole. The other thing that causes me a lot of
pause, is that I issued a warrant[.] . . . [A]nd you didn’t turn
yourself in on that warrant and that . . . speaks volumes to me,
Mr. Utto.

And so, given the findings in the Pre -Sentence
Investigation . . . that you have not been amendabl e [sic], I’m
going to deny the [m]otion for a departure . . . .

In sum, t he record indicates that the district court considered the reasons for and
against departure , reasonably concluded that Utto was not particularly amenable to
probation, and imposed a presumptive prison sentence of 29 months. “In sente ncing,
district courts have a great deal of discretion. Rarely do we hold that it has been abused.”
Soto, 855 N.W.2d at 305. This is not such a rare case.
Affirmed.

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 (2016).