State of Minnesota, 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This opinion is nonprecedential except as provided by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
A21-0123

State of Minnesota,
Appellant,

vs.

Ihar Daniliuk,
Respondent.

Filed September 7, 2021
Affirmed
Bryan, Judge

Dakota County District Court
File No. 19HA-CR-19-2183

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

Kathryn M. Keena, Acting Dakota County Attorney, Heather Pi penhagen, Assistant
County Attorney, Hastings, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Ronald S. Latz, Ronald S. Latz, P.A., St. Louis Park, Minnesota; and

Julia Shmidov, Julia Shmidov Law Firm, P.A., St. Louis Park, Minnesota (for respondent)

Considered and decided by Johnson, Presid ing Judge; Bryan, Judge; and Frisch,
Judge.

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NONPRECEDENTIAL OPINION
BRYAN, Judge
In this sentencing appeal, appellant challenges the district court’s decision to grant
two downward durational departures. Because we conclude that the district court did not
abuse its discretion in determining that respon dent’s conduct was less serious than that
involved in a typical offense, we affirm.
FACTS
In August 2019, appellant State of Minnesota charged respondent Ihar Daniliuk with
two counts of criminal vehicular operation af ter Daniliuk drove his vehicle into a coffee
shop while under the influence of alcohol, seriously injuring two people. Daniliuk pleaded
guilty to one count of criminal vehicular operation resulting in great bodily harm and one
count of criminal vehicular operation resulting in substantial bodily harm. Both offenses
were based on operating a motor vehicle while having an alcohol concentration of 0.08 or
more and not on negligence, gross negligence, or any other statutory basis. See Minn. Stat.
§ 609.2113, subds. 1, 2 (2018).
During the plea colloquy, Daniliuk adm itted to the following facts. After
consuming alcohol, Daniliuk drove to a grocery store. While parking the car, Daniliuk’s
sandal got caught in the gas pedal, causing Daniliuk and the car to jerk forward and crash
into a coffee shop. The car struck two people sitting at a table outside the coffee shop.
One of the victims sustained great bodily harm, and the other sustained substantial bodily
harm. After police arrived at the scene, they took Daniliuk to the hospital and obtained a

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blood test, which showed that Daniliuk had an alcohol concentration of 0.12. Based on
these admissions, the district court accepted Daniliuk’s guilty plea.
At sentencing, Daniliuk m oved for downward durationa l departures, asking the
district court to sentence the two offenses as gross misdemeanors instead of felonies. 1
Daniliuk argued that his con duct was less serious than a typical offense because the
accident was caused in part by his sandal getti ng caught in the gas pe dal, and because he
exhibited remorse at the scen e and tried to help the vic tims. The state opposed the
departure requests and asked the district court to sentence the offenses as felonies but to
stay execution of the sentences.
The district court granted the downward durational departures and sentenced both
offenses as gross misdemeanors. The district court determined that there were substantial
and compelling reasons to depart because th e conduct involved in the offenses was less
serious than the conduct involv ed in a typical offense. At the sentencing hearing, the
district court orally explained its reasons for the departure decisions:
As tragic as this incident was, this is a case where the defendant
was going to a grocery store and not a bar. . . . I also find that
his wearing sandals in the middle of summer is not
unreasonable and that that was a contributing factor in this
incident. And as a result I find that this crime was less onerous
than what is typical in a DWI crim[inal] vehicle operation type
offense.

1 The imposition of a gross-misdemeanor sentence for a felony conviction is considered a
downward durational departure. See Minn. Stat. § 609.13, subd. 1 (2018); State v. Bauerly,
520 N.W.2d 760, 762 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).

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In the sentencing departure report, the district court reiterated its reasons for the departures,
including that Daniliuk’s “wearing sand[al]s played a significant role in the accident, which
occurred in the parking lot of a grocery store in which [Daniliuk] had intended to purchase
groceries.” The sentencing report also stated that Daniliuk “showed remorse immediately
after hitting the two victims and approached them to render aid.” The district court stayed
execution of the 365-day sentences on each co unt, but it ordered Daniliuk to serve two
separate 30-day periods of jail time, one beginning in August 2021 and the other beginning
in August 2022. This appeal follows.
DECISION
The state argues that because Daniliuk’s conduct was not significantly less serious
than the conduct involved in a typical offense, the distri ct court erred when it granted the
downward durational departures. We conclude that the dist rict court did not abuse its
discretion in granting the departur es because the uncontested facts 2 and circumstances of
this case support the determination that Dani liuk’s offense conduct was less serious than
the conduct involved in a typical offense.
The Minnesota Sentencing Guidelines promote uniformity, proportionality, and
predictability in sentencing. State v. Misquadace, 644 N.W.2d 65, 68 (Minn. 2002). The
Minnesota Sentencing Guidelines prescribe a se ntence or a range for the sentence that is
“presumed to be appropriate.” Minn. Sent. Guidelines 2.D.1 (Supp. 2019); State v. Soto,
855 N.W.2d 303, 308 (Minn. 2014). The district court must pronounce a sentence within

2 The state does not challenge the factual findings of the district court.

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the presumptive sentencing range “unless th ere exist identifiable, substantial, and
compelling circumstances to support a departure.” Minn. Sent. Guidelines 2.D.1 (Supp.
2019); Soto, 855 N.W.2d at 308. Here, the district court granted two durational departures,
imposing shorter sentences than the presumptive sentences under the guidelines. See State
v. Solberg, 882 N.W.2d 618, 623 (Mi nn. 2016) (defining a dura tional departure). When
imposing a durational departure, a district court consider s “the course of conduct
underlying the charge for which th e defendant is being sentenced.” State v. Weaver, 796
N.W.2d 561, 573 (Minn. App. 2011) (quotation omitted), review denied (Minn. July 19,
2011). For durational departures, a district c ourt must rely on the offense conduct rather
than the characteristics of the offender. Solberg, 882 N.W.2d at 623. A district court may
grant a downward durational departure “only if the defendant’s conduct was significantly
less serious than that typically involve d in the commission of the offense.” Id. at 624
(quotation omitted).
We review the characterization of the defe ndant’s conduct and the district court’s
comparison3 to the conduct involved in a typical offense for an abuse of discretion. E.g.,
Dillon v. State, 781 N.W.2d 588, 595 (Minn. App. 2010), review denied (Minn. July 20,
2010) (concluding that if “the district cour t has identified proper grounds justifying a
challenged departure, we review its decision whether to depart for an abuse of discretion”);
see also State v. Stempfley, 900 N.W.2d 412, 419 (Minn. 2017) (concluding that the district

3 We observe that applicable caselaw does not require a district court to describe the
conduct involved in a typical offense when making this comparison. Nevertheless, a
description of the conduct involved in a t ypical offense would aid in the parties’
understanding of a departure decision and assist our review of departure decisions.

6
court did not abuse its discretion when it dete rmined that the defendant’s role was less
serious than a typical defendant’s role); State v. Behl, 573 N.W.2d 711, 714 (Minn. App.
1998) (concluding that the district court did not abuse its discretion when it determined that
the conduct involved was more serious than that involved in the typical offense), review
denied (Minn. Mar. 19, 1998).4 A district court abuses its discretion when its decision “is
against logic and the facts in the record.” State v. Guzman, 892 N.W.2d 801, 810 (Minn.
2017). We are “extremely deferential” to a district court’s decision whether to impose a
departure, Dillon, 781 N.W.2d at 595-96, and we “cannot simply substitute our judgment
for that of the [district] court,” State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999); see also
State v. Case, 350 N.W.2d 473, 476 (Minn. App. 1984) (explaining that appellate courts
are “loath to interfere” with a district court’s sentencing decision). “[A]s long as the record
shows the sentencing court carefully evaluated all the testimony and information presented
before making a determination,” this court will not interfere with the district court’s
decision. State v. Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted).
At the sentencing hearing and in the senten cing departure report, the district court
relied on the following four facts to determin e that the circumstances of this case were
significantly less serious than the conduct involved in a t ypical case: (1) the accident

4 Our standard of review on sentencing appeal s varies depending on the particular error
asserted. We generally review a district c ourt’s decision to depart from the sentencing
guidelines for an abuse of discretion. Taylor v. State, 670 N.W.2d 584, 588 (Minn. 2003).
However, we review questions of law de novo, such as whether a particular reason for a
departure is permissible. State v. Jackson, 749 N.W.2d 353, 357 (Minn. 2008); Dillon, 781
N.W.2d at 595. In this case, the state does not argue that the district court identified legally
impermissible reasons for the departure. C onsistent with the part ies’ written and oral
arguments to this court and based on Dillon, we apply abuse-of-discretion review.

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occurred when Dan iliuk was going to a groc ery store rather than a bar; (2) Daniliuk’s
sandal got stuck on the gas pedal of the vehi cle, causing the vehicle to move forward and
contributing to the accident; (3) Daniliuk showed remorse immediately after causing the
accident; and (4) Daniliuk approached the victim s at the scene to render aid. The state
argues that these facts do not diff er from a typical offense. We conclude that the district
court acted within its discretion when it dete rmined that these four facts significantly
distinguished Daniliuk’s conduct from the conduct involved in a typical criminal vehicular
operation offense.
First, the district court relied on the fact that Daniliuk was going to a grocery store
and not a bar when he caused th e accident. The state mainta ins that the location of the
accident does not sufficiently distinguish th is offense from the typical offense. We
disagree. The location of the offense and th e fact that Daniliuk was running an errand,
rather than going to or from a bar where he ha d been drinking, fall within “the course of
conduct underlying the charge for which the defendant is being sentenced” that the district
court considers when characte rizing the offense conduct. Weaver, 796 N.W.2d at 573
(quotation omitted). While the location and purpose of the driving conduct involved may
not be determinative by themselv es, it is not against logic to consider these aspects of
Daniliuk’s course of conduct. We find no abuse of discre tion in the district court’s
determination that the location and purpose for the driving conduct here make the conduct
less serious than the typical alcohol-related criminal vehicular operation offense.
Second, the district court relied on its findi ngs that Daniliuk’s sandal played a role
in causing the accident. The state argues that the district court abused its discretion because

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the accident was primarily caused by Daniliuk’ s intoxication, not his sandal. Again, we
are not convinced. To be clear, although portions of the state’s written argument appear to
challenge the causation finding of the district court, the state conceded at oral argument
that it was not challenging this factual finding. In addition, the state is not arguing that the
statute precludes consideration of what caused the accident.5 Given the state’s clarification
at oral argument, and given the deference affo rded to the district court’s weighing of
conflicting inferences regarding causation, we accept all of the district court’s factual
findings as uncontested on appeal. Construing this argument in the proper context, we next
conclude that the district court did not act ag ainst logic. The district court characterized
the harm in this case as the result of Dan iliuk’s intoxication and the sandal getting stuck
on the accelerator. The district court did not abuse its sentencing discretion when it
distinguished those two causes or when it determined that Daniliuk’s conduct is less serious
than the typical offense in which the driver’s intoxication alone causes harm.
Third, the district court re lied on its factual finding that Daniliuk showed remorse
immediately after causing the accident. Remo rse may justify a durational departure if it
“is directly related to the criminal conduct at issue and made that conduct significantly less

5 Portions of the state’s brief allude to the distinction between the element of negligence
present in other section 609.2113 offenses a nd the absence of any ne gligence element in
the particular offenses of conviction under subdivisions 1(3) and 2(3). However, the state
does not argue that the consideration of potential causes of the accident is an improper legal
basis for departure. We observe that all o ffenses under these subdi visions require proof
that the defendant’s driving conduct caused great or subs tantial bodily harm. Minn. Stat.
§ 609.2113, subds. 1, 2. Given the language of the statute and the state’s failure to assign
legal error, we assume that, for convictions under section 609.2113, subdivisions 1(3) and
2(3), the statutory causation element permits consideration of the circumstances that caused
the accident when deciding whether to grant a departure motion.

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serious than the typical conduct unde rlying the offense of conviction.” Solberg, 882
N.W.2d at 626. Here, the district court’s finding on remorse related to Daniliuk’s conduct
at the time of the accident. After causing th e accident, Daniliuk got out of the car and
expressed remorse through an ap ology to one of the victims at the scene of the accident.
The immediate showing of remorse and acceptance of responsibility is directly related to
the offense conduct in this case. The distri ct court did not abuse its discretion when it
considered how these actions differed from the typical offense conduct.
Finally, the district court also relied on the fact that Danili uk approached the two
victims at the scene to render aid. See State v. McGee, 347 N.W.2d 802, 806 (Minn. 1984)
(determining that defendant’s conduct was more culpable than a typi cal offense when he
struck victim with vehicle and failed to stop or render aid, even after witnesses directed
him to stop). It was not against logic for the di strict court to conclude that this aspect of
Daniliuk’s conduct supported the departures.
In sum, we discern no abuse of discreti on here. The district court relied on four
facts that are uncontested on appeal. While reasonable district court judges may differ on
the extent to which these facts mitigated the seriousness of the two offenses, it was not an
abuse of discretion for the district court to c onclude that these facts, when taken together,
significantly distinguish Dan iliuk’s conduct from the conduc t involved in the typical
offense.
Affirmed.