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This opinion is nonprecedential except as provided by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
A20-1576

State of Minnesota,
Respondent,

vs.

Kevin Jackson,
Appellant.

Filed September 27, 2021
Affirmed
Slieter, Judge

Steele County District Court
File No. 74-CR-19-808

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

Daniel A. McIntosh, Steele County Attorney, Julia A. Forbes, Assistant County Attorney,
Owatonna, Minnesota (for respondent)

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

Considered and decided by Cochran, Pres iding Judge; Worke, Ju dge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this direct appeal from the judgement of conviction for second-degree assault,
appellant claims that the district court abus ed its discretion by denying his motion for a
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dispositional departure. Because the district court’s imposition of a presumptive sentence
does not, by this record, suggest the “rare” situation to reverse its sentence, we affirm.
FACTS
The underlying facts of this appeal stem from an altercation on May 16, 2019, during
which appellant Kevin Jackson used a “rigid, metal rake” to break th e windshield of the
victim A.L.M.’s car. Appellant also struck A.L.M. with the rake on her shoulder and leg,
puncturing her skin inches fro m her “neck, throat, and head ” and left “bloody puncture
wounds.” The next morning, A.L.M. reported to the police that appellant and another
individual were attempting to enter her vehicle and that an SUV was parked in front of her
home. The responding officer determined that there was a liquid on A.L.M.’s vehicle that
smelled like gasoline and a “small piece of burned paper below the vehicle.” Officers soon
located appellant driving an SUV that “smelled of gasoline” and with a gas canister in plain
view. Respondent State of Mi nnesota charged appellant with second- and fifth-degree
assault and attempted third-degree arson.
Pursuant to the terms of a plea agreement, appellant pleaded guilty to second-degree
assault on September 16, 2019. The district court released appellant and required, among
other terms, that he remain law abiding, appear for all court dates, and abstain from the use
or possession of alcohol or mood-altering substances. On October 24, 2019, law
enforcement was called to appellant’s home a nd, upon their arrival, appellant refused a
breath test and was subsequently arrested. During the bail hearing, appellant admitted that
he violated his conditions of release because he “ha[d] a drink.” At some point following
the bail hearing and appellant’s subsequent re lease, a warrant was issued for appellant’s
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arrest for a new assault charge which re mained pending at the time of appellant’s
sentencing in this matter. A ppellant failed to appear at the scheduled sentencing hearing
in this matter and the district court issued a separate arrest warrant. Once appellant was
arrested, the district court ordered appellant be held w ithout bail until the sentencing
hearing.
At the sentencing hearing, appellant asked the district court to impose a downward-
dispositional departure based up on his particular amenability to probation. The state
requested that the district court impose the presumptive sentence. A presentence
investigation (PSI) report was prepared pr ior to sentencing, which recommended the
presumptive sentence.
The district court denied appellant’s di spositional departure motion and sentenced
appellant to 57 months’ imprisonment—the presumptive midrange prison term for second-
degree assault with a dangerous weapon. This appeal follows.
DECISION
Appellate courts “afford the [district] court great discretion in the imposition of
sentences and reverse sentencing decisions on ly for an abuse of that discretion.” State v.
Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quot ation omitted). An abuse of discretion
occurs when a district court’s “decision is ba sed on an erroneous vi ew of the law or is
against logic and the facts in the record.” Wells v. State, 839 N.W.2d 775, 778 (Minn. App.
2013), review denied (Minn. Feb. 18, 2014) (quotation omitted). When the district court
imposes a presumptive sentence, appellate courts will not interfere “as long as the record
shows the sentencing court carefully evaluated all the testimony and information presented
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before making a determination.” State v. Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011)
(quotation omitted). We will reverse a refusal to depart from a presumptive sentence only
in a “rare” case. State v. Walker , 913 N.W.2d 463, 468 (Min n. App. 2018) (quotation
omitted).
The guideline sentences prov ided in the Minnesota Se ntencing Guidelines are
presumed to be appropriate. Minn. Sent. Guid elines 2.D.1 (2017). A district court must
impose a sentence within the guidelines unless “identifia ble, substantial, and compelling
circumstances” warrant departure. Id.; accord State v. Solberg , 882 N.W.2d 618, 623
(Minn. 2016) (quotation omitted). Even if valid grounds fo r departure exist, the district
court need not depart from the guidelines. State v. Bertsch, 707 N.W.2d 660, 668 (Minn.
2006). “[T]he mere fact that a mitigating fact or is present in a particular case does ‘not
obligate the [district] court to place defendant on probation.’” Pegel, 795 N.W.2d at
253-54 (quoting State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984)).
In determining whether a dispositional depart ure is justified, courts consider, as
relevant here, factors such as the “defendant ’s age, his prior record, his remorse, his
cooperation, [and] his attitude while in court.” State v. Trog, 323 N.W.2d 28, 31 (Minn.
1982). The Trog factors are non-exhaustive and not all are applicable to every case. Soto,
855 N.W.2d at 310. And, “[a] lthough the [district] court is required to give reasons for
departure, an explanation is not required when the court c onsiders reasons for departure
but elects to impose the presumptive sentence.” State v. Van Ruler , 378 N.W.2d 77, 80
(Minn. App. 1985). Although the district court was not required to offer an explanation in
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this case when it imposed the presumptive sentence, the district court orally considered the
Trog factors during the sentencing hearing.
Appellant argues that substantial and co mpelling reasons support a dispositional
departure, including his stated motivation to pursue treatment together with five of the Trog
factors considered by the district court. Upon review of this record, we conclude the district
court was within its discretion to deny the dispositional departure motion.
Appellant first points this court to the “efforts and progress” he made “in addressing
his addiction and mental health needs” after entry of his guilty plea as a basis for the court’s
abuse of discretion. Appellant attributes error to the district court weighing those efforts
against granting a dispositio nal departure. Citing State v. Hennessy, 328 N.W.2d 442
(Minn. 1983), he argues that he is motivat ed to pursue rehabilitation and the record
supports that he utilized community resources, “establis h[ing] [his] amenability to
probation.”
The district court acknowledged that it reviewed a letter of support from appellant’s
therapist of “several years.” The district court noted that appella nt had opportunities to
utilize services but, in spite of those oppo rtunities and services, appellant committed the
underlying offense and another assault matter was pending. The district court then weighed
appellant’s recent efforts “against the likelih ood of long term amenability to probation”
before finding that the record did not support a basis to depart. This district court did not
abuse its discretion in arriving at that conclusion.
We turn next to appellant’s arguments with respect to the district court’s application
of the Trog factors.
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The district court first considered that appellant was 55 years old at the time of
sentencing. It addressed defense counsel’s ar gument that “people age out of the system”
and agreed that “that can be tr ue,” but the district court then noted that, according to the
PSI, appellant was assessed as being a high -risk to reoffend, which weighs against
departure.
The district court next considered appellant’s prior convictions and determined that
appellant’s prior record, which consists of 12 prior felonies and 17 misdemeanors, did not
support a dispositional departure. The district court stated that appellant’s “record goes
back to 1984” and that he is “in his fourth decade of criminal behavior.”
The district court next found that appellant was “remorseful that [he was] caught.”
The district court’s finding accurately reflects appellant’s statement to the court.
Yes, I -- yeah, I feel sorry for what took place that I don’t know
about. And there’s people sitting he re right here now in jail
because they got drunk or high and killed someone and nobody
don’t even know what happened, and I don’t want that life and
I don’t want to do that life.

(Emphasis added.)
The district court also a ddressed appellant’s “attitude while in court,” concluding
that appellant had “behave[d] himself.” However, it also considered appellant’s violation
of his conditions of release “39 or 40 days” after pleading guilt y and his failure to appear
at his original sentencing date , concluding that this factor did not weigh in favor of
probation.
Addressing appellant’s level of coopera tion, the district court stated that it
understood appellant was invol ved in working for the drug task force but that defense
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counsel submitted a letter which acknowledged th at appellant “did not cooperate in the
fashion that was expected.” That is, appellant “did some helpful things, but . . . didn’t meet
[his] obligations under the pl ea agreement.” The supreme c ourt has determined that a
bargained-for plea agreement, does not, by it self, provide support for finding particular
amenability to probation. Soto, 855 N.W.2d at 312. Appellant’s cooperation with the drug
task force was included as an obligation pursuant to his plea agreement. The district court’s
conclusion that appellant did not meet this obligation is supported by the record.
In sum, the record demonstrates that the district court carefully considered all of the
information presented to it when considering each Trog factor and before imposing the
presumptive sentence. This is not the “rare” case where this court reverses the district
court’s refusal to depart from the presumptive sentence.
Affirmed.