Roilan Garriga, petitioner, Appellant,

This opinion will be unpublished and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
A19-0961

Roilan Garriga, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 21, 2020
Affirmed in part, reversed in part, and remanded
Connolly, Judge

Hennepin County District Court
File No. 27-CR-16-29742

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Worke, Judge; and Connolly,
Judge.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges the postconviction court’s denial of his petition for relief,
arguing that the postconviction court abused its discretion by affirming the denial of his
motion for a downward dispositional departure in his sentence and that the district court
erred by entering formal adjudicati ons for two offenses committed as part of a single
behavioral incident as another offense for which he was convicted . We affirm in part,
reverse in part, and remand.
FACTS
On November 16, 2016, respondent State of Minnesota charged appellant Roilan
Garriga with five counts relating to identity theft: count 1 —aiding and abetting identity
theft under Minn. Stat. § 609.527, subd. 2 (2016); count 2—attempted aiding and abetting
identity theft under Minn. Stat. § 609.527, subd. 2; counts 3 and 4 —possession of a
scanning device or reencoder under Minn. Stat. § 609.527, subd. 5b(b) (2016); and count
5—possession of burglary or theft tools under Minn. Stat. § 609.59 (2016). The cha rges
arose after appellant and two other men were arrested on November 12 while attempting
to install credit card skimming devices on gas pumps at a gas station. The skimming
devices were designed to copy information from credit cards used at the pump. Inside the
men’s van, the police found numerous debit cards and prepaid credit cards. An
investigation revealed that those cards were encoded with the stolen identities of various
residents of Hennepin County, and that the three men had used the cards illegally at various
stores and restaurants over the previous several days.

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Appellant pleaded guilty to all counts in November 2017 pursuant to a straight plea.
He also admitted to several aggravating factors. At the sentencing hearing in January 2018,
the state moved for an upward durational departure based on the seriousness of the crime,
and appellant moved for a downward dispositional departure based on his particular
amenability to probation. The district court denied both motions. In denying the stat e’s
motion, the court noted that the presumptive sentence already reflected the seriousness of
the crime. In denying appellant’s motion, it stated that placing appellant on probation
would “significantly diminish the seriousness of this offense,” and that appellant did not
“play a minimal role” in the crime, even if he was not the “mastermind.” The district court
sentenced appellant to the presumptive 48-month prison term.
During sentencing, the district court determined that counts 2, 3, 4, and 5 were part
of a single behavioral incident. In the warrant of commitment, the district court entered a
formal adjudication for all five counts and imposed concurrent sentences on counts 1 and
2. It did not sentence appellant on the remaining counts, but instead indicated that those
counts “merge[] with count 2 for sentencing.”
In March 2019, appellant filed a petition for postconviction relief, arguing that the
district court abused its discretion by denying his motion for a downward dispositional
departure. Th e postconviction court denied the petition. The postconviction court
determined that the district court did not abuse its discretion because it “thoughtfully
examined the factors before it,” including appellant’s apparent attempt to minimize his role
in the offense. T he district court’s denial of the state’s motion for an upward durational
departure further highlighted its consideration of all factors. This appeal follows.

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D E C I S I O N
I.
Appellant argues that the postconviction court abused its discretion by affirming the
denial of his motion for a downward dispositional departure because he is particularly
amenable to probation. We review the denial of a petition for postconviction relief for an
abuse of discretion. Pearson v. State , 891 N.W.2d 59 0, 596 (Minn. 2017). A
postconviction court abuses its discretion when it is arbitrary and capricious, bases its
ruling on an erroneous view of law, or makes clearly erroneous factual findings. Id. We
review legal issues de novo and factual findings for clear error. Id.
Under the sentencing guidelines, the district court must impose a sentence within
the presumptive range “unless there exist identifiable, substantial, and compelling
circumstances to support a departure.” Minn. Sent. Guidelines 2.D.1 (2016).
“[D]epartures from the guidelines are discouraged and are intended to apply to a small
number of cases.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016). The district court
has broad discretion in imposing sentences, and appellate courts revi ew sentencing
decisions for an abuse of that discretion. State v. Soto , 855 N.W.2d 303, 307 -08 (Minn.
2014). We generally do 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). Only
in a “rare” case will a reviewing court reverse the imposition of a presumptive sentence.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
When evaluating a motion for a dispositional departure, the district court can focus
on “the defendant as an individual and on whether the presumptive sentence would be best

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for him and for society.” State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). Particular
amenability to probation is a factor that can support a sentencing departure. Minn. Sent.
Guidelines 2.D.3.a.(7) (2016). The requirement of particular amenability “ensure[s] that
the defendant’s amenability to probation distinguishes the defendant from most others and
truly presents the substantial and compelling circu mstances that are necessary to justify a
departure.” Soto, 855 N.W.2d 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, co operation, attitude in court, and support of friends and
family. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
In arguing that he is particularly amenable to probation, appellant points to his lack
of criminal history, youth, remorse for the crime, cooperation with police, good attitude in
court, support network of family and friends, diminished role in the crime, and mental
health issues. The presentence investigation (PSI) observed that many of tho se factors
existed—appellant had no known criminal hist ory, was 19 years old at the time of the
offense, expressed regret for the crime and empathy for the victims, was cooperative during
the PSI process, appeared to have a supportive family, and played a lesser role in the crime
than the other men. But again, even when facts that would justify a departure are present,
we generally will not interfere with the imposition of a presumptive sentence. Bertsch, 707
N.W.2d at 668.
The district court considered tho se factors at the sentencing hearing. It explained
its rationale for denying both appellant’s motion for a downward dispositional departure
and the state’s motion for an upward durational departure:

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This is a very serious offense. I recognize . . . that you
don’t have a prior criminal history, and you may be amenable
to probation; however, placing you on probation will
significantly diminish the seriousness of this offense. I am not
going to . . . grant the defendant’s motion for a downward
dispositional departure. However, I’m not going to grant the
State’s motion for an upward durational departure. . . . I don’t
believe that those facts merit substantial and compelling
circumstances for an upward durational departure as I believe
the seriousness is taken into the fact that this crime is a higher
severity offense than almost all other property crimes, and is a
presumptive 48 -month prison sentence without any criminal
history.
. . . I know you weren’t the mastermind here, that’s very
clear. However, you didn’t play a minimal role either. You
maybe didn’t plan this but you were very involved and you
went along for the ride and it wasn’t just one night.
In affirming the denial of appellant’s motion for a downward dispositional
departure, the postconviction court noted that the district court appropriately considered
the various mitigating and aggravating factors, including appellant’s lack of criminal
history and the seriousness of the offense. The district court’s considerati on of all factors
was evident from its denial of the state’s motion for an upward durational departure despite
the existence of aggravating factors. In essence, the postconviction court concluded that
the district court reached the presumptive sentence by balancing the mitigating and
aggravating factors. Such a determination was not an abuse of discretion.
Appellant contends, however, that the postconviction court clearly erred in finding
that he minimized his role in the offense throughout the proceedings and that the district
court relied on this minimization to deny his motion for a downward dispositional
departure. These findings are not clearly erroneous. The PSI supports the finding that

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appellant minimized his role in the crimes. It notes several inconsistencies in appellant’s
statements during the interview and the probation officer’s confusion with such
inconsistencies. For example, appellant stated that the crime was just a “one time thing”
and that he had no knowledge of the specific details of the crime or the tools used. And
yet, he also acknowledged that the other men indicated that he was receiving “on the job
training” and would “get a bigger share later,” and he admitted to meeting with the other
men beforehand to plan the crime. The PSI contemplated that appellant may have planned
ahead to keep himself “out of the loop” if he were caught. Based on this record, it was not
clear error for the postconviction court to find that appellant minimized his role in the
offense.
The record also supports the postconviction court’s finding that the district court
relied on appellant’s minimization when denying his motion for a downward dispositional
departure. Appellant insists that the district court denied the motion entirely based on the
seriousness of the offense. It is true that the seriousness of the offense was an impo rtant
factor for the district court. But the district court also noted that appellant did not play a
minimal role in the offense, as he “went along for the ride and it wasn’t just one night.”
These comments indicate that the district court considered the inconsistencies with
appellant’s attempts to minimize his involvement in the crime. The postconviction court’s
findings were not clearly erroneous.
Thus, the postconviction court did not abuse its discretion by affirming the district
court’s denial of appellant’s motion for a downward dispositional departure.

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II.
Appellant argues that this court should vacate his convictions for counts 3 and 4 —
possession of a scanning device or reencoder—because the district court erred by entering
formal adjudications for those counts when it had already entered a formal adjudication for
count 2—attempted aiding and abetting identity theft. The state agrees with appellant that
those convictions should be vacated.
“Upon prosecution for a crime, the actor may be convicte d of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2018). The
Minnesota Supreme Court has interpreted section 609.04 to bar “multiple convictions
under different sections of a criminal statute for acts committed during a single behavioral
incident.” State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985). When the defendant is
convicted on more than one charge for the same act, the district court should formally
adjudicate and impose a sentence on one count only. State v. LaTourelle, 343 N.W.2d 277,
284 (Minn. 1984) . The district court should not formally adjudicate the remaining
convictions. Id.
Here, the district court determined that counts 2, 3, 4, and 5 occurred as part of a
single behavioral incident. Counts 2, 3, and 4 were charged under different subsections of
the same identity-theft statute—Minn. Stat. § 609.527, subds. 2, 5b(b). But in the warrant
of commitment, the district court entered a conviction for all five counts. Since the district
court entered a formal adjudication for count 2, it violated section 609.04 by entering
formal adjudications for counts 3 and 4 as well. It could enter a conviction only for counts

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1, 2, and 5. We therefore reverse and remand to the district court with instructions to vacate
the formal adjudications for counts 3 and 4.1
Affirmed in part, reversed in part, and remanded.

1 This ruling does not vacate the underlying finding of guilt. State v. Walker, 913 N.W.2d
463, 467 -68 (Minn. App. 2018). Nor does it impact appellant’s sentence because the
district court did not sentence him on either count. Nevertheless, we note that the district
court’s statements that counts 3, 4, and 5 “merge[ ] with count 2 for sentencing” were
legally incorrect, as the law does not recognize the concept of counts merging. Id. at 467.