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This opinion will be unpublished and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
A20-0528

State of Minnesota,
Respondent,

vs.

Daniel Roy Luckhardt,
Appellant.

Filed November 2, 2020
Affirmed
Larkin, Judge

Lyon County District Court
File No. 42-CR-19-776

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

Rick Maes, Lyon County Attorney, Abby Wikelius, Assistant County Attorney, Marshall,
Minnesota (for respondent)

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

Considered and decided by Jesson, Presiding Judge; Larkin, Judge; and Reilly,
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
Appellant challenges the district court ’s denial of his motion for a downward
dispositional departure, arguing that he is particularly amenable to probation. We affirm.
FACTS
In July 2019, respondent State of Minnesota charged appellant Daniel Roy
Luckhardt with fifth-degree possession of a controlled substance, obstructing legal process,
violation of a domestic -abuse no-contact order, and possession of a hypodermic needle.
Luckhardt was conditionally released while the case was pending . H is conditions of
release required him to abstain from drug use and to report for drug testing. He violated
those conditions multiple times by testing positive for methamphetamine and by failing to
report for drug testing. In November 2019, Luckhardt pleaded guilty as charged. Between
the plea and sentencing hearing s, Luckhardt again violated his conditions of release by
failing to report for drug testing.
According to the presentence investigation, Luckhardt has five felony convictions
for offenses committed between 2004 and 2011 . Four of those offenses were controlled -
substance crimes, and one was attempted simple robbery. Luckhardt also has three
misdemeanor convictions for offense s committed earlier in 2019. He was placed on
probation for two of those misdemeanor convictions in August 2019. The presentence
investigation reported that Luckhardt has three young children who currently were the
subjects of a child-protection case and placed in foster care.

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Luckhardt moved for a downward dispositional departure , asserting that he was
particularly amenable to probation. At the sentencing hearing in January 2020 , the case
manager for Luckhardt’s child-protection case testified. She explained that Luckhardt had
visitation with his children and that ever since she took over his case in October 2019, he
had always taken a drug test when requested and had never failed a drug test in her program.
The case manager conceded, however, that some child-protection staff member s felt that
Luckhardt had been “aggressive, rude, [and] intimidating” toward them. In arguing for a
downward dispositional departure, Luckhardt’s counsel stated that Luckhardt was enrolled
in outpatient treatment, had taken steps to complete his conditions of probation from the
prior misdemeanor convictions , had completed an anger -management course, and was
“gradually moving towards being able to see his children again.”
The district court denied the downward dispositional departure, explaining:
The reasons that you’ve offered in support of departure . . .
while they are reasons, and I’ m not trying to minimize the
progress you’ve made, uh, in your [child -protection] case, but
I cannot find that the information that’s been provided to me
rises to the level of substantial and compelling. . . .
In . . . your particular case, Mr. Luckhardt, in this file
you’ve had multiple allegations of use while on pretrial release;
multiple violations of conditional release. The information
provided in the record, as well as the testimony here today, tells
me that . . . you have made some changes . . . . But I can’t say
that those changes rise to the level of substantial and
compelling.
The district court emphasized Luckhardt’s violations of his conditions of release
and stated, “I cannot say that you are particularly amenable to probation or treatment when
you did not cooperate with pretrial release conditions. In fact, you were found multiple

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times to be out of compliance with release conditions. And cooperating with release
conditions is similar to your cooperation on probation.” The district court recognized that
Luckhardt had made progress in his child-protection case, but it also took into account his
case manager’s testimony that his “behavior has been aggressive and/or intimidating to
persons involved in the system.”
The district court ordered Luckhardt to serve 21 months’ imprisonment for fifth -
degree possession of a controlled substance, as well as concurrent jail sentences for
obstructing legal process, violati ng a domestic-abuse no-contact order, and possess ing a
hypodermic needle. Luckhardt appeals.
D E C I S I O N
The Minnesota Sentencing Guidelines establish presumptive sentences for criminal
offenses. Min n. Stat. § 244.09, subd. 5 (2018 ). The sentencing guidelines seek to
“maintain uniformity, proportionality, rationality, and predictability in sentencing” of
crimes. 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).
When substantial and compelling circumstances 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. We will not reverse

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the district court ’s refusal to depart “as long as the record shows the [district] court
carefully evaluated all the testimony and information presente d before making a
determination.” 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 probation will justify departure from a presumptive sentence .
State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014) . The requirement of particular
amenability ensures that “the defendant’s amenability to probation distinguishes the
defendant from most others and truly presents the substantial and compelling
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).
Even if there is evidence that the defendant would be particularly amenable to probation, a
district court is not required to impose a downward dispositional departure. State v. Olson,
765 N.W.2d 662, 664-65 (Minn. App. 2009).
Luckhardt contends that he is particularly amenable to probation because at the time
of sentencing, he had made progress in his child -protection case and in completing the
conditions of his misdemeanor probation. He argues that he is committed to rehabilitation.
But Luckhardt does not assign error to the district court’s decision -making process; he

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simply argues that the record supports a different decision. That argument is unavail ing
because the district court was not required to depart even if there had been substantial and
compelling circumstances supporting a departure.
The record indicates that the district court considered all of the information
presented for and against a dispositional departure before making a decision. The district
court reasonably concluded that Luckhardt was not particularly amenable to probation
because he had violated his conditions of release multiple times while the case was
pending. This is not a rare case in which we would reverse the district co urt’s refusal to
depart from the presumptive sentence.
Affirmed.