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This opinion is nonprecedential except as provided by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
A21-1080

State of Minnesota,
Respondent,

vs.

Derek Steven Serbus,
Appellant.

Filed April 4, 2022
Affirmed
Smith, John, Judge*

Anoka County District Court
File No. 02-CR-20-3623

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

Anthony C. Palumbo, Anoka County Attorney, Robert I. Yount, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Gaïtas, Judge; and Smith, John,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
SMITH, JOHN, Judge
We affirm the district court’s denial of appellant’s motion for a dispositional
departure because the district court did not abuse its discretion in imposing a presumptive
sentence.
FACTS
Appellant Derek Steven Serbus pushed his significant other, J.W., into a bonfire in
his backyard after an argument. J.W. sustained numerous severe burns, among other
injuries, and has had to undergo multiple surgeries and skin grafts. The state charged
Serbus with first-degree and third-degree assault, both felonies. Serbus pleaded guilty to
first-degree assault in exchange for the dismissal of the third- degree charge and the state
agreeing to a “bottom of the box” sentence, which was 74 months in prison. The top of the
presumptive sentencing range was 103 months.
Before sentencing, Serbus moved for a downward dispositional departure to
probation from the presumptive 74 months agreed to by the state. Serbus argued he was
particularly amenable to probation because he was willing and likely able to succeed in
treatment for alcohol and anger issues while on probation. The pre-sentence investigatory
report recommended the district court sentence Serbus to 74 months in prison. At the
sentencing hearing, the district court heard testimony from J.W., Serbus, and two persons
on behalf of Serbus. The district court then sentenced Serbus to the bottom-of-the-box 74
months in prison.
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Serbus appeals, arguing the district court abused its discretion by denying his motion
for a downward dispositional departure because he is particularly amenable to probation.
DECISION
District courts have broad discretion in sentencing. State v. Soto, 855 N.W.2d 303,
305 (Minn. 2014). We review a district court’s sentencing decision for an abuse of
discretion. Id. at 307-08. A district court “abuses its discretion when its decision is based
on an erroneous view of the law or is against logic and the facts in the record.” Riley v.
State, 792 N.W.2d 831, 833 (Minn. 2011).
The Minnesota Sentencing Guidelines prescribe sentences that are “presumed to be
appropriate” and limit the district court’s sentencing discretion. Minn. Sent. Guidelines
2.D.1 (2018); see Soto , 855 N.W.2d at 308 (citing this provision of the guidelines). To
maintain uniformity and proportionality in sentencing, departures from the presumptive
sentence are discouraged. State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017). If a
defendant requests a downward dispositional departure, a district court must determine
whether “mitigating circumstances are present” and, if so, whether “those circumstances
provide a substantial and compelling reason not to impose a guidelines sentence.” Soto,
855 N.W.2d at 308 (quotations omitted). But even if a mitigating factor is present, the
district court has broad discretion on whether to grant a dispositional departure. State v.
Pegel, 795 N.W.2d 251, 253-54 (Minn. App. 2011). We will reverse a district court’s
refusal to depart only in a “rare” case. State v. Walker, 913 N.W.2d 463, 468 (Minn. App.
2018) (quotation omitted).
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Serbus makes two arguments on appeal: that the district court abused its discretion
(1) by denying his motion for a downward dispositional departure , and (2) by failing to
provide an explanation for its reasoning in denying his motion. Both of these arguments
fail.
I. The district court did not abuse its discretion in denying Serbus’s motion for a
downward dispositional departure.

The sentencing guidelines provide a nonexclusive list of mitigating factors that may
support a departure. Minn. Sent. Guidelines 2.D.3.a (Supp. 2019). Se rbus argues one
mitigating factor supports a downward dispositional departure in his case: that he “is
particularly amenable to probation.” Id. at 2.D.3.a(7). To determine whether a defendant
is particularly amenable to probation, district courts apply the factors derived from State v.
Trog, 323 N.W.2d 28 (Minn. 1982). These factors include the defendant’s age, prior
record, remorse, cooperation, attitude in court, and support of family and friends. Id. at 31.
The district court need not address all the Trog factors and may consider outside factors.
Pegel, 795 N.W.2d at 254. And even if the district court determines that a defendant is
particularly amenable to probation, the district court need not downwardly depart from the
presumptive sentence. See id. at 253-54 (stating that “the mere fact that a mitigating factor
is present . . . does not obligate the court to place defendant on probation.” (quotation
omitted)).
Serbus appears to misunderstand the law on this point, arguing in his briefing that
he “easily met all of the Trog factors. If [he] was not entitled to a downward dispositional
departure, then who is?” Serbus does not acknowledge that the district court need not have
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downwardly departed from the presumptive sentence even if it had determined that Serbus
was particularly amenable probation. Id. As a result, the state argues that Serbus has failed
to adequately brief this issue for consideration on appeal. But we have a responsibility “to
decide cases in accordance with law, and that responsibility is not to be diluted by counsel’s
oversights, lack of research, failure to specify issues or to cite relevant authorities.” State
v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (quotation omitted).
The question is whether this is one of the “rare” cases in which we should reverse a
district court’s refusal to depart. Walker, 913 N.W.2d at 468. Serbus cites no authority on
this point. The state, as part of its argument that Serbus has forfeited this issue, claims
“there exists a narrow line of cases justifying reversal of a guidelines sentence when the
trial court declines to consider valid mitigating factors” and cites to State v. Mendoza, 638
N.W.2d 480 (Minn. App. 2002) , rev. denied (Minn. Apr. 16, 2002), and State v. Curtiss ,
353 N.W.2d 262 (Minn. App. 1984).
The state misreads Mendoza and Curtiss. In Mendoza, we reversed the district
court’s imposition of a presumptive sentence and remanded for rehearing because the
district court “erred by considering [the defendants’] immigration status and possible
deportation,” which were not “valid consideration[s] in deciding whether to impose a
presumptive sentence or to depart from the guidelines.” 638 N.W.2d at 484. We then
expressly stated that “[t]his is not that ‘ rare’ case in which we interfere with the district
court’s exercise of its discretion, but one in which, we conclude, that such an exercise of
discretion may not have occurred” because “we cannot conclude from the record that the
district court made a deliberate decision to impose presumptive sentences by weighing
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reasons for and against departure.” Id. (citing Curtiss, 353 N.W.2d at 264). Likewise, in
Curtiss, we reversed the presumptive sentence and remanded for rehearing because the
district court failed to “deliberately consider[]” the “arguments for departure . . . alongside
valid reasons for non-departure.” 353 N.W.2d at 264 (quotation omitted). And again, we
expressly noted that “[t]his is not that rare case where we interfere with the exercise of
discretion, but a case where the exercise of discretion has not occurred.” Id. Mendoza and
Curtiss illustrate that we will reverse and remand a sentence when the district court fails to
exercise its discretion. They are thus inapposite here because Serbus argues the district
abused its discretion, not that it did not exercise it in the first place.
We hold that this case is not one of the “rare ” cases in which we will reverse a
district court’s refusal to depart. As explained above with Mendoza and Curtiss, we have
previously reversed a district court’s decision not to depart where the district court fails to
exercise its discretion. But when a district court exercises its discretion by considering the
reasons for and against departure, we will not disturb the dist rict court’s decision. See,
e.g., Pegel, 795 N.W.2d at 255 (refusing to reverse a sentence where “the record
demonstrates that the district court carefully considered circumstances for and against
departure and deliberately exercised its discretion.”). Here, before sentencing Serbus, the
district court stated:

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I’ve taken everything I’ve heard into account,
everything I’ve read in this matter, everything that’s been said
today, and I’ve done my best to try to weigh what’s fair, what’s
just, with the understanding that regardless of what I pick,
someone is not going to think it’s fair. Someone is not going
to think it’s just, and that’s just the way this job goes
sometimes.

I say all of that to say that I do believe in redemption. I
do believe in people changing. I do believe in people bettering
themselves. All of those are good things. But I also believe
that sometimes even one bad day can change the trajectory of
a person’s life in a way that you can’t —you can’t fix it, and
this is one of those occasions.

The district court considered Serbus’s request for a downward dispositional departure, the
reasons for and against the departure, and exercised its discretion to sentence Serbus to the
presumptive 74 months in prison. Therefore, we will not disturb the district court’s
decision. Id. Thus, the district court did not abuse its discretion in denying Serbus’s motion
for a downward dispositional departure because it considered circumstances for and against
departure in exercising its discretion.
II. The district court did not abuse its discretion by not providing an explanation
for its denial of Serbus’s motion.

The district court did not make written findings or issue a written memorandum in
response to Serbus’s motion for a downward dispositional departure. Serbus asserts “the
district court abused its discretion when it denied [his] motion for a downward dispositional
departure without giving any reasons for doing so.” But, “[a]lthough the trial court is
required to give reasons for departure, an explanation is not required when the court
considers reasons for departure but elects to impose the presumptive sentence.” State v.
Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985); see, e.g., State v. Johnson, 831 N.W.2d
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917, 925-26 (Minn. App. 2013) (applying this rule). The presumptive sentence includes
the so-called sentencing “box” or “range.” See State v. Jackson, 749 N.W.2d 353, 358
(Minn. 2008) (“The presumptive sentence was 88 months, with a presumptive sentencing
range of 75-105 months.”).
Here, the district court sentenced Serbus to 74 months in prison, the bottom of the
presumptive sentencing range. Serbus does not argue that 74 months in prison is not a
presumptive sentence, and he referred to that sentence as the “bottom of the box” in his
guilty plea. Thus, the district court sentenced Serbus to the presumptive sentence here.
In Pegel, the “[a]ppellant,” like Serbus here, “accurately assert[ed] that the district
court did not discuss all of the Trog factors before it imposed the presumptive sentence.”
795 N.W.2d at 254. There, we reiterated that “there is no requirement that the district court
must do so” and affirmed the district court’s refusal to depart because “the record
demonstrates that the district court deliberately considered circumstances for and against
departure and exercised its discretion.” Id. (citing Van Ruler, 378 N.W.2d at 80). Here,
before sentencing Serbus, the district court judge stated, as quoted at length above, that:
“I’ve taken everything I’ve heard into account, everything I’ve read in this matter,
everything that’s been said today, and I’ve done my best to try to weigh what’s fair, what’s
just . . . .” Therefore, like the record in Pegel, the record here “demonstrates that the district
court deliberately considered circumstances for and against departure and exercised its
discretion.” 795 N.W.2d at 254. Thus, the district court did not abuse its discretion by not
providing an explanation for its denial of Serbus’s motion because it imposed the
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presumptive sentence and deliberately considered circumstances for and against departure
in exercising its discretion.
Affirmed.