State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0276

State of Minnesota,
Respondent,

vs.

Michael Andre Richards,
Appellant.

Filed February 8, 2021
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-18-30318

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

Michael O. Freeman, Hennepin County Attorn ey, Adam E. Petras , Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Jesson, Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
After pleading guilty to first-degree crim inal sexual conduct fo r an incident of
sexual abuse against his stepdaughter, appella nt challenges the denial of a sentencing

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departure. He argues that the district court erroneously believed it could not depart. That
argument is refuted by the district court’s own words and actions. Accordingly, we affirm.
FACTS
The state charged appellant Michael Andre Richards with first-degree criminal
sexual conduct for molesting his ten-year-old stepdaughter. According to the complaint,
Richards went into the victim’s bedroom, supposedly to read her a bedtime story, and then
sexually touched her shortly be fore being discovered by the victim’s grandfather. The
grandfather, suspicious of Richards, called th e family pastor. The pastor spoke with the
victim, who said that Richar ds had touched her. Richards ultimately admitted to his
actions. He pleaded guilty to the first-degr ee criminal-sexual-conduct charge with no
agreement as to the sentence.
The district court accepted the guilty pl ea and ordered a psychosexual evaluation
and a presentence investigation (PSI). 1 The PSI recommended that the district court
sentence Richards to 144 months in prison and ten years of conditional release.
Richards moved for downward dispositional and durational sentencing departures.
In support of a dispositional departure, Richar ds suggested an intensive, residential, sex-
offender-specific treatment pr ogram. In support of a dura tional departure, Richards
pointed to the two psychosexual evaluations c oncluding that he pres ented a moderate to
low risk to reoffend. He also noted his expressed remorse, early admission to the offense,

1 Richards’s public defender also arranged for a second psychosexual evaluation.

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and his limited criminal history. The state ar gued that his age (34) and lack of criminal
history did not distinguish him from other criminal defendants.
The district court rejected Richards’s motion, stating:
I have heard what you’ve said. I heard what the prosecutor
said. I heard what your lawyer . . . has said. I do see that there
is a demonstration on your pa rt in terms of remorse and
acceptance, and I do believe that you need treatment and that
it would help you. I am finding, given all the facts and
circumstances, that I am not able to depart dispositionally or
durationally and so I am going to impose the presumptive
sentence.

(Emphasis added.) The district court impo sed a 144-month sentence with ten years of
conditional release.
Richards appeals, arguing that the di strict court’s findi ngs were ambiguous,
suggesting that the district court believed it did not have the authority to grant a departure.
He requests that we remand to the district court to clarify its findings.
DECISION
The Minnesota Sentencing Guidelines establish presumptive sentences for criminal
offenses. Minn. Stat. § 244.09, subd. 5 (2018). The sentencing guidelines seek to
“maintain uniformity, proportionality, rationality , and predictability in sentencing.” Id.
“Consequently, departures 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). A
district court may depart from the presumptive sentence only when “there exist identifiable,
substantial, and compelling circumstances to support a departure.” Minn. Sent. Guidelines
2.D.1 (2018).

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When substantial and compelling circumstan ces exist, the district court has broad
discretion to depart, and we generally will not interfere with the exercise of that discretion.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Only in a “rare” case will we reverse the
district court’s refusal to depart from the presumptive sentence. Id. And we will not
reverse the district court’s refusal to depart “as long as the record shows the [district] court
carefully evaluated all the testimony and information presented before making a
determination.” State v. Pegel , 795 N.W.2d 251, 255 (Mi nn. App. 2011) (quotation
omitted).
Here, Richards sought downward di spositional and durational sentencing
departures. A downward durational departure (when the length of a sentence is shortened)
must be based on factors that reflect the seriousness of the offense. Solberg, 882 N.W.2d
at 623. A downward durational departure “is justified if the defendant’s conduct is
significantly less serious than that typically in volved in the commission of the offense.”
State v. Mattson , 376 N.W.2d 413, 415 (Minn. 1985) . When considering a downward
dispositional departure (when a prison sentence is stayed and the defe ndant is placed on
probation), the district court focuses “mor e 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. 19 83). A defendant’s particular
amenability to probation may justify a dis positional-departure from a presumptive
sentence. State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014).
The record here reflects that the district court consider ed the reasons proffered for
both departure requests. Indeed, Richards does not argue that the district court failed to do

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so. Instead, he argues that the district court may have erroneously believed that it lacked
the discretion to depart. He relies on the distri ct court’s statement that it was “not able to
depart dispositionally or durati onally.” He asks that we re mand to the district court to
clarify this statement.
While it is true that in some instances a district court lacks the discretion to grant a
departure—for example, when a statute re quires a mandatory-minimum sentence under
certain circumstances—nothing here implies that the district court understood this case to
be one of those instances. See State v. Olson, 325 N.W.2d 13, 17-18 (Minn. 1982) (noting
that the legislature may restrict judicial discretion in sentencing). Before denying
Richards’s departure motion, the district court explicitly noted that it had listened to each
party’s sentencing arguments. No party asserted or implied that the district court did not
have the discretion to depart. In fact, the prosecutor’s sentencing arguments recognized
that the district court did ha ve the discretion to depart if substantial and compelling
circumstances existed. Neither the PSI nor the psychosexual evaluations suggested that
the district court lacked the discretion to depart. And the prosecutor did not challenge the
district court’s discretion or authority to gran t a departure. Certainly, the district court
never noted its lack of discretion, only its unwillingness to depart.
Richards leans heavily on two words spoken by the district court to argue error: “not
able.” In doing so, Richards ignores the c ontext provided in the same sentence: “I am
finding, given all the facts and circumstances that I am not able to depart . . . .” (Emphasis
added.) Considered in this context, it is clear to us that the district court did not erroneously

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believe that it lacked the discretion to depart. The court simply chose not to do so.2 Finally,
we are not persuaded that the district court in this case confused its authority to grant a
departure simply, as Richards suggests, because sentencing for first-degree criminal sexual
conduct is confusing.3 We discern no such confusion in the district court’s clear order here.
In sum, the district court acted within its wide discre tion by imposing a presumptive
sentence.
Affirmed.

2 Moreover, applying Richards’s reading of the district c ourt’s comments, the court was
not necessarily wrong. Based on Soto, if substantial and compelling circumstances do not
exist, then the district court does not in fact have the disc retion to depart. 855 N.W.2d at
308.
3 Richards also argues that the district court made findings that arguably support a
departure, further supporting the conclusion that the district court erroneously believed that
it lacked the discretion to depart. We disagree. Even if the findings might have supported
a departure, the district court still had the di scretion to impose the pr esumptive sentence.
See State v. Olson, 765 N.W.2d 662, 664-65 (Minn. App. 2009). It is clear that the district
court carefully considered the parties’ argumen ts and the facts and circumstances of this
case before exercising its discretion to impose the presumptive sentence.