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This opinion will be unpublished and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
A20-0143

State of Minnesota,
Respondent,

vs.

Cory Anthony Klingelhoets,
Appellant.

Filed December 7, 2020
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-CR-18-17642

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Johnson, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his guideline s sentence for felony driving while impaired
(DWI), arguing that he is entitled to a downward dispositional departure because he is

2
particularly amenable to probation. Because we discern no abuse of discretion by the
district court, we affirm.
FACTS
This case arises from appellant Cory Anthony Klingelhoets’s fourth alcohol-related
driving offense . In 2012, as a result of separate incidents, he was convicted of
misdemeanor DWI and felony criminal vehicular operation while under the influence of
alcohol. In 2015, he was convicted of felony test refusal. And in July 2018, while on
conditional release for the 2015 conviction, Klingelhoets was arrested after driving the
wrong way down a one-way street. Breath testing revealed that his alcohol concentration
was over the legal limit and the state charged him with felony DWI, and gross misdemeanor
driving after cancellation of his driver’s license. Klingelhoets pleaded guilty in exchange
for the state’s agreement to recommend a bottom -of-the-box, 46-month sentence.1 The
presentence investigator recommended a guidelines sentence.
Klingelhoets moved for a downward dispositional departure , arguing that he is
particularly amenable to probation . He cited significant changes in his life , including
securing long-term stable housing, start ing two successful businesses, undergoing
substance-abuse treatment, receiving support from family and friends, and complying with
the terms of his conditional release . And he pointed to his cooperation with the
prosecution, positive attitude in court, and that fact he had learned his lesson. At the
sentencing hearing defense counsel argued that , but for a person being injured durin g his

1 The guidelines sentencing range is 46-64 months. Minn. Sent. Guidelines 4.A (2017).

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second alcohol-related driving offense, Klingelhoets would be facing his first felony-level
sentence, and therefore he should have another opportunity to serve a probationary
sentence.
The district court denied the departure motion. Citing Klingelhoets’s long history
and continued use of alcohol and controlled substances, family history of alcohol abuse,
previous probation violations, and the fact he was on conditional release at the time of the
offenses, the district court found that Klingelhoets is not particularly amenable to
probation. Accordingly, the court imposed the agreed -to 46 -month executed sentence.
Klingelhoets appeals.
D E C I S I O N
Sentences provided in the Minnesota Sentencing Guidelines are presumed to be
appropriate. Minn. Sent. Guidelines 2.D.1 (2017). A district court must impose a sentence
within the guidelines “unless there exist identifiable, substantial, and compelling
circumstances to support a departure.” Id.; accord State v. Soto , 855 N.W.2d 303, 308
(Minn. 2014). A court may only depart if there is a substantial and compelling reason to
do so. Soto, 855 N.W.2d at 308. That a defendant is particularly amenable to probation is
one such reason. Id. at 308-09. But the existence of valid grounds for departure does not
require a court to depart from the guidelines. See State v. Evenson, 554 N.W.2d 409, 412
(Minn. App. 1996) (“Even assuming [the defendant] is exceptionally amenable to
treatment, his amenabili ty does not dictate the result.”) , review denied (Minn. Oc t. 29
1996).

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We may reverse a sentencing decision only if the district court has abused its
discretion. Soto, 855 N.W.2d at 30 7-08. “A district court abuses its discretion when its
decision is based on an erroneous view of the law or is against logic an d the facts in the
record.” State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019) (quotation omitted). It is
the rare case where an appellate court will reverse the district court’s refusal to depart from
a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); see also State v.
Delk, 781 N.W.2d 426, 428 (Minn. App. 2010) (noting this court seldom overturns
presumptive sentences without compelling circumstances) , review denied (Minn. July 20,
2010).
Klingelhoets argues that the district court abused its discretion because the record
establishes that he is particularly amenable to probation. We are not persuaded. First, the
record demonstrates that the district court carefully con sidered the arguments for and
against a departure. Klingelhoets presented evidence of his housing, business endeavors,
and treatment for substance abuse, and asserted that his young age, remorse, acceptance of
responsibility, cooperation, and familial and community support demonstrate his particular
amenability to probation. See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (listing the
factors a court should consider when deciding particular amenability). The district court
weighed these along with o ther relevant factors in determining there were no substantial
and compelling reasons to depart:
THE COURT: Mr. Klingelhoets, I have rev iewed the file
thoroughly. I’ ve reviewed the presentence investigation and
I’ve read your submission and I’ ve taken everything into
consideration today. And it sounds like right now you do have
some very positive things going for you. And you have

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accepted responsibility for your behavior and that you are
growing as a person and that is all great. But these changes are
very recent changes. And your commitment to chang e is still
to be determined. It’s easy for people to do things when they’re
pending sentencing on a felony DWI, it’ s about what happens
after.

And history is unfortunately a good predictor of future
behavior. And you —you co uld have committed to your
sobriety at any time after your first DWI or even your second
DWI. And I’ve not seen that. I hear what you’re saying, and
I think maybe you’ re getting there in terms of committ ing to
sobriety, but I just don’t think you’re quit e there yet, and I’ ll
tell you why.

You’ve had a number of alcohol-related offenses. You
were on conditional release with the [department of
corrections] at the time . . . you picked up this case. You had
no driver’ s license, you were canceled inimical to public
safety, and yet you were driving. And not only were you
driving, but you were driving after drinking. You had prior
probation violations.

. . . .

And despite going to prison and despite getting in an
accident where you hurt people, your subs tance abuse
behavior, the call for you has been so strong that you have not
been able to stop it for any lengthy period of time. And you’ve
disregarded public safety in the past. And unfortunately you
already have a [criminal vehicular operation], you already hurt
people by your bad choices.

And I have looked and I can’t find grounds for departure
here. I cannot say that you are particularly amenable to
probation because you’ve shown to this point that you are not
particularly amenable. It doesn’ t mea n amenable can the
person do probation. This requires particular amenability, and
that’s not here. . . . I mean, the law requires me if I’m going to
depart I have to have substantial and compelling reasons.
Probation didn’t find them; I don’ t find them either, Mr.
Klingelhoets.

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We see no legal error or illogic in the district court’s analysis.
Second, we are not persuaded by Klingelhoets’s suggestion that he should have
received a probationary sentence because of his “atypical” criminal history. Klingelhoets
notes that he did not receive the same access to probation services as others convicted of
felony DWI because his 2012 criminal-vehicular-operation conviction elevated both his
2015 and 2018 DWIs to felonies. He cites no legal authority to support his suggestion that
he is particularly amenable to probation because of the unusual circumstances that made
this his second felony DWI. Indeed, it is proper for district courts to consider prior criminal
offenses when determining a defendant’s particular amenability to probation. See State v.
Hopkins, 486 N.W.2d 809, 812 (Minn. App. 1992) (holding it was proper for the district
court to rely on prior sexual offenses when it declined to grant a dispositional departure in
sentencing for criminal sexual conduct).
Nor are we persuaded by Klingelhoets’s supplemental pro se arguments. To the
extent his arguments repeat those advanced by his lawyer that we have rejected, they are
unavailing. To the extent his arguments refer to matters outside the record , we do not
consider them. See Minn. R. Crim. P. 28.02, subd. 8 (“ The record on appeal consists of
the documents filed in the district court, the offered exhibits, and the transcript of the
proceedings, if any .”); Thiele v. Stich , 425 N.W.2d 580, 582 -83 (Mi nn. 1988) (“ An
appellate court may not base its decision on matters outside the record on appeal, and may
not consider matters not produced and received in evidence below.”).
In sum, when there are arguments for a departure but also “valid reasons for
adhering to the presumptive sentence,” the decision whether to depart is “clearly a

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discretionary decision for the [district] court.” Kindem, 313 N.W.2d at 7-8. That is the
case here. The district court concluded that Klingelhoets’s amenability to probation does
not distinguish him from other offenders. See Soto, 855 N.W.2d at 309. On this record,
we discern no abuse of discretion by the district court in imposing t he presumptive
sentence.
Affirmed.