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This opinion is nonprecedential except as provided by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
A21-1325

State of Minnesota,
Respondent,

vs.

Ashley Monique Swart,
Appellant.

Filed August 29, 2022
Affirmed
Smith, Tracy M., Judge

St. Louis County District Court
File Nos. 69HI-CR-20-960, 69HI-CR-20-694

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

Kimberly Maki, St. Louis County Attorney, Stacey M. Scholz, Assistant County Attorney,
Hibbing, Minnesota (for respondent)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and
Larkin, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Ashley Swart argues that the district court abused its discretion by
(1) refusing to grant downward dispositional departures from the presumptive sentences,
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(2) declining to impose downward durational departures, and (3) imposing sentences in the
middle of the presumptive range rather than at the bottom of the range. We affirm.
FACTS
In March 2021, pursuant to a plea agreement, Swart pleaded guilty, in two separate
files, to two counts of first-degree sale of methamphetamine in violation of Minn. Stat.
§ 152.021, subd. 1(1) (2020). In exchange, the state agreed to request presumptive
sentences under the Minnesota Sentencing Guidelines, that any sentences would be
concurrent, and that Swart would be free to move for a departure. The plea agreement also
included resolution of charges in other files.
Before sentencing, Swart moved for dispositional departures, asserting that she had
experienced a history of assaults and mental-health difficulties and that she required
mental-health and chemical-dependency treatment rather than punishment. Swart also
wrote a letter to the district court in which she alleged that she was sexually assaulted by a
drug-task-force officer who threatened her with prosecution if she reported the assault.
Swart’s presentence investigation report (PSI) noted this allegation. There is no further
evidence of the alleged assault in the record, and neither the parties nor the district court
addressed it during sentencing.
At a hearing on April 15, 2021, the district court heard Swart’s dispositional-
departure motion. Swart argued that she was particularly amenable to probation and asked
to be placed into the Minnesota Adult and Teen Challenge program. The district court
indicated that it intended to impose concurrent 65- and 85-month sentences for the two
counts, but it continued the hearing and postponed its final sentencing decision until Swart
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had the opportunity to be released to and to successfully complete programming at
Minnesota Adult and Teen Challenge.
Swart entered the Minnesota Adult and Teen Challenge program but, on May 5,
2021, left the program without notifying her probation officer. On July 15, 2021, the
district court held a joint hearing on the violation of condition and on sentencing for the
offenses in the present appeal. The district court denied Swart’s motion for dispositional
departures and imposed concurrent prison sentences of 65 and 85 months. Swart appeals.
DECISION
The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses. Minn. Stat. § 244.09, subd. 5 (2020). The sentencing guidelines seek to “maintain
uniformity, proportionality, rationality, and predictability in sentencing” of felony 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 guidelines sentence only “if aggravating or
mitigating circumstances are prese nt, and those circumstances provide a substantial and
compelling reason not to impose a guidelines sentence.” State v. Soto, 855 N.W.2d 303,
308 (Minn. 2014) (emphasis omitted) (quotations and citations omitted); see also Minn.
Sent. Guidelines 2.D.1 (2020) (stating that a district court “must” sentence within the
guidelines range “unless there exist identifiable, substantial, and compelling circumstances
to support a departure”). But even if substantial and compelling circumstances exist, a
district court is not required to depart from the guidelines. State v. Walker, 913 N.W.2d
463, 468 (Minn. App. 2018); see also State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984)
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(stating that the presence of a mitigating factor does not obligate a district court “to place
defendant on probation”); Minn. Sent. Guidelines 2.D.1 (stating that a district court “may”
depart from the presumptive disposition).
District courts are afforded “great discretion in the imposition of sentences,” and
appellate courts will reverse a sentencin g decision “only for an abuse of that discretion.”
Soto, 855 N.W.2d at 307-08 (quotation omitted). 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.” State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019) (quotation omitted).
When a district court imposes a presumptive sentence, an appellate court “may not interfere
with the [district] court’s exercise of discretion, as long as the record shows the [district]
court carefully evaluated all the testimony and information presented before making a
determination.” State v. Van Ruler, 378 N.W.2d 77, 80- 81 (Minn. App. 1985). An
explanation is not required when a district court denies a departure and imposes a
presumptive sentence as long as the district court considered the reasons for a departure.
Id. at 80. Only in a “rare case” will an appellate court reverse the district court’s refusal to
depart from the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
I. The district court did not abuse its discretion by denying downward
dispositional departures.

Swart first argues that the district court abused its discretion by denying her motion
for downward dispositional departures.
A dispositional departure “places the offender in a different setting than that called
for by the presumptive guidelines sentence.” Solberg, 882 N.W.2d at 623. Substantial and
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compelling circumstances justifying a downward dispositional departure “include a finding
that a defendant is particularly amenable to correction on probation and unamenable to
correction by imprisonment.” State v. Malinski, 353 N.W.2d 207, 209 (Minn. App. 1984),
rev. denied (Minn. Oct. 16, 1984); see also Minn. Sent. Guidelines 2.D.3.a.7 (2020).
Several factors are relevant to determining whether a defendant is particularly amenable to
probation. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). These factors include the
defendant’s age, prior record, remorse, cooperation, attitude while in court, and support
from friends or family. Id. Additional factors include the admission of guilt and taking
responsibility for one’s criminal conduct. State v. Hickman, 666 N.W.2d 729, 732 (M inn.
App. 2003).
Our review of the record assures us that the district court acted within its discretion
in declining to dispositionally depart from the presumptive sentences . First, it is apparent
from the record that the district court carefully considered the reasons that Swart advanced
for departure. The district court explained that it “looked over every piece of reports in
[Swart’s] file, going back since last year” before imposing sentence. Moreover, the district
court seriously considered the possibility of a dispositional departure when it postponed
imposing a sentence to give Swart the chance to demonstrate that she could successfully
participate in treatment in a probationary setting.
Second, we discern no abuse of discretion in the district court’s determination that
a substantial and compelling reason to depart is not present. Swart argues that the district
court failed to consider the Trog factors, “including Swart’s progress and the availability
of other community programs” and that these factors support a finding that she is
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particularly amenable to individualized treatment in the community and to probation.
While an examination of some factors in the record supports a determination that Swart is
particularly amenable to probation (for example, her age and acceptance of responsibility),
other factors do not. Specifically, as the district court explained, weighing heavily against
a finding of particular amenability to probation was the fact that Swart absconded from the
Minnesota Adult and Teen Challenge program and did not inform her probation officer. At
her sentencing hearing, Swart explained that she left the program to be with her mother,
who had been injured in a serious car acciden t, which occurred ten days prior to Swart’s
leaving the program. However, as the district court suggested at the hearing, Swart should
have known that it was important to keep the probation officer informed.
Swart also argues that the district court failed to give adequate weight to the reasons
why she was selling drugs—her struggles with addiction; her involvement with the drug
task force, which kept her involved in the world of drugs; and trauma and mental- health
problems due to a history of sexual assault, including, she alleges, by a drug-task-f orce
member. Without minimizing any of the struggles and challenges that Swart identifies,
based on the record as a whole, we discern no abuse of discretion in the district court’s
determination that Swart was not particularly amenable to probation and that a substantial
and compelling reason for departure was not present.
II. The district court did not abuse its discretion by declining to impose downward
durational departures.

Swart next argues that the district court abused its discretion by not granting
downward durational departures.
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A durational departure is a sentence that departs in length from the presumptive
guidelines range. Solberg, 882 N.W.2d at 623. A durational depar ture must be based on
factors that reflect the seriousness of the offense, not the characteristics of the offender. Id.
A downward durational departure is justified “only if the defendant’s conduct was
significantly less serious than that typically involved in the commission of the offense.” Id.
at 624 (quotation omitted).
We note at the outset that Swart did not argue for a downward durational departure
in the district court. Her memorandum to the district court focused entirely on her request
for a dispositional departure. We generally do not address issues that were not presented to
the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). But, even if this
issue were properly before us, we would not agree that the district court abused its
discretion. The district court was not required to explain its decision to impose presumptive
sentences as long as it carefully considered the full record and arguments presented, see
Van Ruler, 378 N.W.2d at 80, and, as explained above, it is evident that the district court
did so here.
Swart asserts that her criminal operation was not sophisticated and that her offenses
were nonviolent and motivated by her addiction. While aspects of the record may support
Swart’s argument, we are unconvinced that the district court’s decision not to depart from
the presumptive sentences was against logic and the facts in the record. We therefore
conclude that the district court did not abuse its discretion by declining to durationally
depart from the guideline sentences.
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III. The district court did not abuse its discretion by imposing middle-of-the-box
sentences.

Swart also argues that the district court abused its discretion by imposing middle-
of-the-box sentences rather than sentences at the low end of the guidelines range.
“A sentence within the presumptive-sentence range is not a departure from the
presumptive sentence but is a presumptive sentence and is generally not subject to appellate
review of the district court’s exercise of its discretion.” State v. Delk, 781 N.W.2d 426, 427
(Minn. App. 2010), rev. denied (Minn. July 20, 2010). Only in a “rare case” will an
appellate court reverse the district court’s imposition of a presumptive sentence. Kindem,
313 N.W.2d at 7.
Swart argues that the middle-of-the-box sentences imposed by the district court,
while within the presumptive range, are an abuse of discretion because they unfairly
exaggerate the criminality of Swart’s conduct. She asserts that the presumptive range is
broad and that compelling circumstances exist that demand a sentence at the low end of
the range. Swart again cites her history of addiction and trauma, and she also asserts that
the district court did not properly consider her allegation of sexual assault by a drug-task-
force agent.
We disagree that this is the rare case in which a presumptive sentence must be
reversed. Each of the concurrent sentences imposed is in the middle of the guidelines range.
The allegation of sexual assault by a drug-t ask-force agent, while referenced in the PSI,
was not part of the sentencing hearing. And the other circumstances identified by Swart,
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while difficult, do not lead us to conclude that the guideline sentences unfairly exaggerate
the criminality of Swart’s conduct.
Affirmed.