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This opinion will be unpublished and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
A19-1489

State of Minnesota,
Respondent,

vs.

Chad Michael Gibson,
Appellant.

Filed August 10, 2020
Affirmed
Johnson, Judge

Rice County District Court
File No. 66-CR-17-475

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

John L. Fossum, Rice County Attorney, Terence Swihart, Assistant County Attorney,
Faribault, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Johnson, Judge; and Frisch,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Chad Michael Gibson rear-ended a vehicle at high speed, causing the death of the
vehicle’s driver and serious injuries to a passenger. Gibson pleaded guilty to criminal

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vehicular homicide and criminal vehicular operation. The district court initially imposed
a sentence of 1 05 months of imprisonment on the more -serious offense but granted
Gibson’s request for a downward dispositional departure and stayed execution of the
sentence. This court reversed the downward departure and remanded for resentencing.
The district court again imposed a top-of-the-box presumptive sentence of 105 months of
imprisonment but executed the sentence. Gibson argues that the district court erred by not
imposing a shorter presumptive sentence. We conclude that the district court did not err
and, therefore, affirm.
FACTS
The amended complaint alleges that, on August 13, 2016, Gibson was driving south
on interstate highway 35 in Rice County. Due to work on a bridge, several signs warned
drivers of “road work ahead” and advised them to “be prepared to stop.” Near the
intersection of the freeway and state highway 60, a back-up caused traffic to slow to a stop.
Gibson drove his Chevrolet Avalanche into the rear end of a Kia Sorrento, causing it to
collide with the vehicles in front of it. The Kia Sorrento caught fire, and the two persons
inside were extracted by first responders and airlifted to a hospital. The driver of the Kia
Sorrento later died and the passenger, his wife, suffered multiple broken bones and other
injuries. A forensic analysis indicated that Gibson’s vehicle was travelling at 78 miles per
hour just before the impact and that he never applied the brakes.
In its amended complaint, t he state charged Gibson with criminal vehicular
homicide, in violation of Minn. Stat. § 609.2112, subd. 1(a)(1) (2016); criminal vehicular
operation, in violation of Minn. Stat. § 609.2113, subd. 1(1) (2016); reckless driving, in

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violation of Minn. Stat. § 169.13, subd. 1(a) (2016); and careless driving, in violation of
Minn. Stat. § 169.13, subd. 2.
In January 2018, Gibson pleaded guilty to criminal vehicular homicide and criminal
vehicular operation, and t he state dismissed the charges of reckless driving and careless
driving. In light of Gibson’s criminal-history score, the presumptive sentencing guidelines
range for the criminal-vehicular-homicide conviction is 75 to 105 months of imprisonment.
Gibson moved for a downward dispositional departure . He argued that he is amenable to
probation and that other factors mitigated his culpability, such as the fact that he was not
impaired by drugs or alcohol, was not using a cell phone, and had difficulty perceiving the
speed of traffic in front of him. The state opposed Gibson’s motion, citing his “significant
record of traffic violations” and the lack of evidence that he is amenable to probation. The
district court imposed sentences of 105 months and 43 months, respectively, on the two
convictions but stayed execution of the sentences, placed Gibson on probation for 10 years,
ordered him to serve 365 days in jail , and ordered him to pay $16,958 in restitution. The
district court stated that it departed downward because Gibson’s actions were “ less
egregious tha n in the typical case” and because he cooperated with law enforcement,
showed remorse , “ maintained a cooperative and respectful attitude throughout the[]
proceedings,” and is amenable to probation.
The state appealed the sentence. This court reversed and remanded for resentencing
after concluding that the district court abused i ts discretion by finding that Gibson’s
behavior was less egregious than that of a typical offender and that he is amenable to
probation. State v. Gibson, A18-0936, 2019 WL 1510694, *3 (Minn. App. Apr. 8, 2019).

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On April 16, 2019, approximately one week a fter this court’s opinion in the state’s
appeal, a probation officer filed a probation -violation report. The report alleged that, on
multiple occasions between January and early April of 2019, Gibson had tested positive
for methamphetamine or had failed to appear when required to provide a urine sample.
The report also stated that Gibson had violated the terms of his probation by not following
his probation officer’s directives and not contacting his probation officer. In May 2019, a
probation officer later filed two addenda alleging additional probation violations.
At a hearing on the alleged probation violation s, Gibson admitted that he had
violated the terms of his probation as outlined in the probation violation report . With
respect to resentencing, the district court stated that this court’s opinion was “very clear”
and had left “ no wiggle room for anything other than a commit to the Commissioner of
Corrections.” At a subsequent resentencing hearing, t he district court again imposed
sentences of 105 months and 43 months of im prisonment and executed the sentences.
Gibson appeals.
D E C I S I O N
Gibson argues that the district court erred by imposing the longest presumptive
sentence for his conviction of criminal vehicular homicide.
The Minnesota Sentencing Guidelines specify presumptive sentences for felony
offenses. Minn. Sent. Guidelines 2.C (2016). For any particular offense, the presumptive
sentence is “presumed to be appropriate for all typical cases sharing criminal history and
offense sev erity characteristics.” Minn. Sent. Guidelines 1.B.13 (2016). The state’s
appellate courts “generally will not interfere with a sentencing court’ s decision to impose

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a term within the presumptive sentence range.” State v. Kangbateh , 868 N.W.2d 10 , 14
(Minn. 2015). Rather, an appellate court should reverse a sentence within the presumptive
sentencing range only in “rare” cases and only if there are compelling circumstances. State
v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); State v. Delk , 781 N.W.2d 426, 428 (Minn.
App. 2010), review denied (Minn. July 20, 2010). This court applies an abuse-of-discretion
standard of review to a sentence that is imposed within the presumptive sentencing range .
Kangbateh, 868 N.W.2d at 14.
In this case, Gibson contends that the district court abused its discretion by imposing
the longest presumptive sentence “solely because [he] violated the terms of his probation.”
We note the obvious fact that, at resentencing, the district court imposed a sentence whose
duration is identical to the duration of the original sentence. That fact makes it difficult for
Gibson to establish that the district court imposed the sentence “solely because” he had
violated the terms of his probation.
Gibson’s argument is based on the following statements by the district court at the
resentencing hearing, which he quotes in his brief:
Okay. Well, Mr. Gibson, here is what I’m going to tell
you. My original sentence was aimed at hoping that you would
become a productive member of society. And you could honor
[the decedent’s] legacy by becoming a productive member of
society, by paying your debt back, by becoming a good man,
as [the decedent] was.

Clearly, that didn’t happen. And clearly you are here
not only for resentencing based upon my original sentence but
for violating the terms and conditions of your probation. I set
very strict terms because I wanted to give you the opportunity
to, as I said, honor [the decedent’s] legacy. You didn’t do that.

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And frankly, I’ll be blunt. When I heard that you had
probation violations, I was upset that nobody notified me
beforehand. Because . . . I set these with a short leash for you.
And for some reason that didn’t get to me right away.

When I originally sentenced you, I sentenced you to the
top of the box because if you did not complete probation, I
thought it was fair that you had the most sentence that I could
give you pursuant to the law. And I’m going to do that today.

This excerpt does not convince us that the district court’s selection of a sentence
was based on Gibson’s probation violation. The district court referred to the fact that
Gibson had violated the terms of his probation , but that fact does not appear to have
motivated the district court’s selection of the sentence that it imposed. Rather, the district
court explained that it was selecting the same sentence that it had imposed earlier, which it
had selected because the district court “thought it was fair that you had the m ost sentence
that I could give you pursuant to the law.” That reason for imposing a top -of-the-box
presumptive sentence does not reflect an abuse of the district court’s broad discretion. See
Kangbateh, 868 N.W.2d at 14; Kindem, 313 N.W.2d at 7 ; State v. Johnson, 831 N.W.2d
917, 925 (Minn. App. 2013), review denied (Minn. Sept. 17, 2013).
Gibson also contends that the district court abused its discretion by not considering
the same factors that previously had caused the district court to order a downward
dispositional departure. But this court reversed the district court’s initial sentence , noting
that “[t]he record does not support the district court’s conclusion that Gibson’s actions were
less egregious than those of a typical offender.” Gibson, 2019 WL 1510694, at *3. This
court s pecifically stated that the district court “abused its discretion when it compared
Gibson’s grossly negligent driving conduct to another situation where a defendant violates

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the statute by driving negligently while int oxicated,” and we rejected the district court’s
finding that Gibson’s gross negligence was not due to a “volitional act” but instead a
momentary distraction. Id. at *4. The district court expressly recognized that it could not
rely on the factors on whic h it previously had relied. The district court did not abuse its
discretion by not repeating the mistake that this court previously had identified and
corrected.
Thus, the district court did not err by imposing the longest sentence within the
presumptive guidelines sentencing range.
Affirmed.