James Eugene Love, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A20-0681

James Eugene Love, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 11, 2021
Affirmed
Klaphake, Judge*

Hennepin County District Court
File No. 27-CR-17-10676

Cathryn Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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)

Considered and decided by Florey, Presiding Judge; Br yan, Judge; and Klaphake,
Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
KLAPHAKE, Judge
Appellant James Eugene L ove argues that the postco nviction judge abused her
discretion by relying on the complaint as opposed to the parties’ agreement at trial
regarding the weight of heroin he intended to sell. Because the postconviction judge relied
on appellant’s on-the-record admission to attempting to sell more than twice the amount of
drugs required for conviction, we conclude that the postconvictio n judge appropriately
exercised her discretion by de nying appellant’s motion to reconsider the sentencing
departure in his postconviction petition. We affirm.
DECISION
Appellant was convicted of first-degree sale of heroin after admitting that he
possessed and intended to sell more than ten grams of hero in. He moved for a downward
durational departure, which the sentencing judge denied, c iting aggravating factors and a
weight of drugs significantly higher than the statutory requirement. The postconviction
judge agreed.
We review a postconviction judge’s denial of a postconviction-relief petition for an
abuse of discretion. See Pearson v. State , 891 N.W.2d 590, 596 (Minn. 2017). A
postconviction judge abuses her discretion when her decision is arbitrary, capricious, based
on an erroneous legal interpretation, or ba sed on clearly erroneous findings of fact. Id. A
finding of fact is clearly erroneous if it leaves us “with the definite and firm conviction that
a mistake has been made.” State v. Evans, 756 N.W.2d 854, 870 (Minn. 2008).

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The Minnesota Sentencing Guidelines provi des sentences within a presumptively
appropriate range. Minn. Sent. Guidelines 2.D.1 (2016). “A sentencing [judge] must
pronounce a sentence within the applicable range unless there exist identifiable, substantial,
and compelling circumstances that distinguish a case.” State v. Soto, 855 N.W.2d 303, 308
(Minn. 2014) (quotation omitted). A sentenci ng judge therefore ma y grant a downward
durational departure only if the defendant acte d “significantly . . . less serious[ly] than
[someone] typically involved in the commission of the crime.” State v. Rund, 896 N.W.2d
527, 532 (Minn. 2017) (quotation omitted). If the sentencing judge carefully considered all
of the testimony and information before maki ng her determination, we will not interfere
with her decision to impose a presumptive sentence, as was the case here. See State v.
Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011). We rarely reverse a sentencing judge’s
refusal to grant a departure. State v. Walker, 913 N.W.2d 463, 468 (Minn. App. 2018).
Appellant’s contention that the postconviction judge relied on the figure of 50 grams
as opposed to 25 grams when upholding the sentencing judge’s decision is inaccurate. The
postconviction judge acknowledged that “the 25.6 grams that Mr. Love admitted
possessing at the plea hearing is still over tw ice the amount required for charging a first-
degree sale offense” (emphasis added) and dete rmined that “[t]he [sentencing judge’s]
determination that Mr. Love’s offense was not less serious than a typical first-degree sale
offense is just as appropriate given that Mr. Love admitted possessing more than twice as
much heroin required by the statute.” See Minn. Stat. § 152.021, subd. 1(3) (2016)
(providing that a person is guilty of first-degree sale of a controlled substance if he “sells
one or more mixtures of a to tal weight of ten grams or more containing heroin”). The

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postconviction judge therefore relied on the correct figure of 25.6 grams when declining to
grant appellant’s motion to reconsider the sentencing departure in his postconviction
petition for a conviction of selling 10 or more grams of heroin. Moreover, appellant does
not point to a single mitigating factor which might justify a downward durational departure.
See State v. Solberg , 882 N.W.2d 618, 624- 25 (Minn. 2016) (holding that a single
mitigating factor may warrant downward durational departur e). And because the record
suggests that the postconviction judge considered the testimony and information before it,
including the aggravating factors that appellant possessed heroin packaged into individual
baggies ready for sale and more than three thousand dollars in cash, resisted arrest and
attempted to flee, the postconviction judge did not abuse her di scretion by denying
appellant’s postconviction petition. See Pegel, 795 N.W.2d at 255.
Caselaw further supports the postconviction judge’s denial of appellant’s motion to
reconsider the sentencing departure in his postconviction petition. In State v. Bauerly, 520
N.W.2d 760, 763 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994), we determined
that a postconviction judge properly resolv ed an appellant’s departure motion from a
conviction for a crime involving a quantity by assessing whether the quantity was relatively
low or high based on the amount listed in the statute. The district court in Bauerly granted
a downward durational departure in a felony- theft case where the defendant stole an
amount that “barely exceeded” the statutory threshold. Id. at 762. We determined that,
because the defendant stole such a small amou nt, she had committed a significantly less
serious crime than the typical offense. Id. at 763. Appellant’s possession of 25.6 grams of
heroin, conversely, more th an doubles the statutory requirement of ten grams. See Minn.

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Stat. § 152.021, subd. 1(3). Bauerly therefore supports the denial of a downward durational
departure for a person who, without mitigating factors, possessed and intended to sell an
amount of drugs that significantly exceeds the statutory requirement. See also State v.
Trulson, 2016 WL 4421560, at *3 (Minn. App. A ug. 22, 2106) (reversing district court’s
downward durational depart ure because defendant stole twice the minimum amount
required for conviction and because of other aggravating factors), review denied (Minn.
Nov. 15, 2016).
We need not reach appellant ’s argument that the postcon viction judge abused her
discretion by determining that a sentencing c ourt may consider facts in a complaint to
resolve a departure motion. The postconviction judge, whose actions we are reviewing,
relied on the correct weight of drugs when denying appellant’s motion to reconsider the
sentencing departure in his postconviction petition. Moreover, appellant forfeited this
argument by failing to provide supporting authority. See Brodsky v. Brodsky, 733 N.W.2d
471, 479 (Minn. App. 2007) (recognizing that inad equately briefed arguments are
forfeited).
Affirmed.