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This opinion is nonprecedential except as provided by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
A22-0165

State of Minnesota,
Respondent,

vs.

William Clyde Grunwald,
Appellant.

Filed September 19, 2022
Affirmed
Bratvold, Judge

Dakota County District Court
File No. 19HA-CR-20-857

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

Kathryn M. Keena, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Daniel Guerrero, Meshbesher & Spence, Ltd., Minneapolis, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Bratvold, Judge; and
Halbrooks, 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NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this direct appeal from the final judgments of conviction for five counts of
possession of pornographic work involving minors, appellant challenges his sentence.
Appellant argues the district court abused its discretion by denying his motion for a
downward dispositional departure. Because the district court imposed a guidelines
sentence after considering the parties’ submissions and arguments, we conclude the district
court did not abuse its discretion. Thus, we affirm.
FACTS
Appellant William Clyde Grunwald pleaded guilty to five counts of possession of
pornographic work involving minors under Minn. Stat. § 617.247, subd. 4(a) (2018). The
facts of the underlying offenses are not disputed. On October 25, 2018, Grunwald’s son
died by suicide. Grunwald’s son left a note stating, among other things, that his father had
child pornography on his home computers.
In November 2018, Apple Valley police investigators talked to Grunwald at his
home. Grunwald consented to an inspection of his computers, and the investigators located
many files with titles indicating that they contained child pornography. Grunwald then
admitted to possessing child pornography. Police later executed a search warrant and seized
Grunwald’s computers. According to the criminal complaint, “[m]ore than 1.15 million
pictures and videos of child pornography depicting minors and child exploitive materials
were located on 12 . . . devices seized from [Grunwald]’s home.” Respondent State of
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Minnesota charged Grunwald with eight counts of possession of pornographic work
involving minors.
An evaluator completed a court-ordered psychosexual evaluation of Grunwald in
March 2021. At about the same time, Grunwald chose to undergo another psychosexual
evaluation by a licensed clinical psychologist following a referral by his attorney. Both
written reports are similar.
Grunwald pleaded guilty to five of the eight counts; the remaining counts were
dismissed. The district court deferred acceptance of the plea and directed probation to
complete a presentence-investigation (PSI) report. The PSI report noted that several
mitigating factors were present, including Grunwald’s lack of a criminal history and his
“[a]menability to outpatient treatment.” The PSI report noted that under the Minnesota
Sentencing Guidelines, the presumptive disposition and duration on the longest sentence
(count V) was a commit to the commissioner for 39 months. Yet the PSI report
recommended that Grunwald be granted a stay of execution and be placed on probation.
Grunwald moved for a downward dispositional departure. Grunwald averred he was
“particularly amenable to treatment and probationary supervision.” Citing his
court-ordered psychosexual evaluation, his privately referred psychosexual evaluation, and
his therapy treatment report, he noted his lack of a criminal history, his history of “health
problems, both physical and mental,” the “compassionate support of his wife and
therapist,” who would “closely and continuously observe” him while on probation, his age
(64 at the time of sentencing), and his “acceptance of responsibility, his remorse, [and] his
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positive and respectful attitude” as evidence he was particularly amenable to probation and
should receive a downward dispositional departure.
Grunwald also submitted a letter from his medical doctor summarizing several
health conditions, a list of his medications, a letter from his wife, a copy of the privately
referred psychosexual evaluation, and a treatment report with an update from his therapist.
At the sentencing hearing on December 10, 2021, the district court accepted
Grunwald’s plea and then heard arguments about his request for a downward dispositional
departure. Grunwald’s attorney discussed his submissions in some detail, making many of
the same points raised in the written motion. Grunwald’s attorney acknowledged that
therapy would take “a long time,” but that Grunwald “is amenable to treatment and
probation,” and “he will do well” in following conditions imposed along with a stayed
sentence.
The state opposed the motion, acknowledging that Grunwald could “benefit from
treatment,” was “doing moderately well in individual treatment,” and was older and had
“serious medical concerns.” But the state also argued these were “very serious offense[s]”
that took place over many years and for which Grunwald showed a “lack of insight.” The
state stressed that there had been “numerous victims,” “the majority [of images] involved
prepubescent children,” and that the number of child-pornography files found on
Grunwald’s computer “exceed[s] a million.” The state requested a guidelines sentence of
39 months in prison on count V.
The probation officer who completed the PSI report noted her concerns about the
effectiveness of sex-offender treatment given comments in the psychosexual-evaluation
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report and that the therapist counseled that Grunwald’s major mental-health issues would
need to be addressed before any sex-offender treatment. Even so, the probation officer
recommended, in accordance with the PSI report previously submitted to the court, that
Grunwald be granted a stay of execution and be placed on probation.
Grunwald told the district court that he had “sincere[] regret for having done this”
to the child victims and to his family. He stated that “child pornography is harmful to
children,” explaining that the children involved “are sexually abused and I contributed to
that.” “I need help and I’m working on that with my therapist to ensure it never happens
again.”
The district court stated:
I know that when . . . considering a dispositional
departure, the Court focuses on the offender-based
characteristics. I want to note that if I haven’t already done so,
I reviewed carefully all the information that was available
before me and considered carefully, more than once, the
compelling arguments that were raised in the case.

(Emphasis added.) The district court noted that Grunwald “is intelligent,” “has the support
of his wife,” and “would likely have developed a trusting relationship with his therapist.”
The district court expressed concerns, however, that Grunwald’s treatment was expected
to be “very slow” and that sex-offender treatment required group therapy, and Grunwald
was not able “to meaningful[ly] participate in that.” The district court determined that “it
does not appear . . . that Mr. Grunwald is in a position that he is able to make the
meaningful changes that are appropriate given the magnitude of the public safety issues in
this case.”
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The district court then entered a judgment of conviction, denied Grunwald’s motion
for a downward dispositional departure, and imposed concurrent guidelines sentences on
each of the five counts, including the 39-month prison sentence on count V. This appeal
follows.
DECISION
On appeal, Grunwald argues the district abused its discretion by denying his motion
for a downward dispositional departure. The district court has “great discretion in the
imposition of sentences and [appellate courts] reverse sentencing decisions only for an
abuse of that discretion.” State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation
omitted).
The guidelines provide that “when substantial and compelling circumstances are
present, the judge may depart” from a guidelines sentence. State v. Kindem, 313 N.W.2d
6, 7 (Minn. 1981) (quotation omitted). Among other things, a downward dispositional
departure may be based on a defendant’s “particular amenability to individualized
treatment in a probationary setting.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). But
“merely being amenable to probation” is insufficient; “requiring a defendant to be
particularly amenable to probation . . . distinguishes the defendant from most others
and . . . presents the substantial and compelling circumstances that are necessary to justify
a departure.” Soto, 855 N.W.2d at 309 (quotation omitted). Factors to examine while
considering a defendant’s “particular amenability” to probation include “the defendant’s
age, his prior record, his remorse, his cooperation, his attitude while in court, and the
support of friends and/or family.” Trog, 323 N.W.2d at 31 (Trog factors).
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Even if a district court finds the Trog factors are present, the district court is not
required to depart. Id. “We will affirm the imposition of a presumptive guidelines sentence
when the record shows the sentencing court carefully evaluated all the testimony and
information presented before making a determination.” State v. Johnson, 831 N.W.2d 917,
925 (Minn. App. 2013), rev. denied (Minn. Sept. 17, 2013). A district court’s refusal to
depart is reversed only in “rare” cases. State v. Walker, 913 N.W.2d 463, 468 (Minn. App.
2018) (quoting Kindem, 313 N.W.2d at 7). Thus, we review Grunwald’s sentence to
determine whether the district court abused its discretion in evaluating the record and
concluding that a downward dispositional departure was not warranted in Grunwald’s case.
On appeal, Grunwald argues that his amenability to treatment in a probationary
setting is “unprecedented relative to [similar] individuals” because of his “age, health, and
prior criminal history” and his “remorse, cooperation, and attitude in court.” Grunwald also
contends that his “mental and physical health render a three-year prison sentence extremely
inappropriate” because of his alleged statistical unlikeliness of reoffending and “the costs
and burdens of incarcerating an elderly man with specific [health] needs.”
We are not persuaded. Even if substantial and compelling circumstances existed for
the reasons argued by Grunwald, the district court was not required to depart from the
guidelines. See Kindem, 313 N.W.2d at 7. Thus, while Grunwald tries to relitigate whether
he was particularly amenable to probation or whether there were compelling circumstances
to justify a departure, that is not the issue on appeal. Rather, we must determine whether,
in sentencing Grunwald, the district court “considered evidence of factors that could have
supported a departure if they had been substantial or compelling,” and if it did, whether
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this is the “rare case” in which reversal is nonetheless warranted. See i d.; Walker,
913 N.W.2d at 468-69.
Here, the district court explicitly considered Grunwald’s physical, emotional, and
mental health . The district court’s comments during the sentencing hearing do not
expressly discuss Grunwald’s criminal history, remorse, cooperation, and attitude before
the district court, or his risk of reoffending. But the district court was not required to
expressly discuss every sentencing factor. See State v. Pegel, 795 N.W.2d 251, 254 (Minn.
App. 2011) (holding that the district court need not discuss every Trog factor when
declining to depart). Because the district court imposed the presumptive guidelines
sentences on all counts, it did not have to explain its decision. See State v. Van Ruler,
378 N.W.2d 77, 80 (Minn. App. 1985) (stating that the district court need not provide an
explanation when it considers reasons for departure and imposes a presumptive sentence).
Still, we disagree with Grunwald’s description of the district court’s review of his
motion. The record reflects that the district court considered the circumstances for and
against departure as raised and argued by the parties. At sentencing, the district court stated,
“I reviewed carefully all of the information that was available before me and considered
carefully, more than once, the compelling arguments that were raised in the case.”
In its evaluation of the “compelling arguments,” the district court weighed the
information in the record, including what the district court saw as “the minimization aspect,
the lack of insight” noted in the psychosexual-evaluation reports and that “Grunwald
basically was in a rumination stage and not able to move forward in any meaningful way,”
as noted in the treatment report and update from Grunwald’s therapist. The district court
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expressed concern with the therapist’s observations about Grunwald’s inability to proceed
with group therapy and Grunwald’s “very slow” progress in individual therapy.
In short, the district court disagreed with Grunwald’s contention that he was
particularly amenable to probation. The district court reasoned that amenability to
probation was not merely “going to the place that you are supposed to go and hoping to
make progress.” It pointed out that “there’s also the component of public safety that is
concerned” and that “particular amenability to probation also means the ability,
willingness, and cognitive and emotional and mental health ability to get better [and] to
fully engage . . . in the process, and to actually absorb the treatment, and to make
meaningful change.” The district court found, “[I]t does not appear to me that Mr.
Grunwald is in a position that he is able to make the meaningful changes that are
appropriate given the magnitude of the public safety issues in this case.” The record, which
details the slow progress Grunwald had made and his resistance to group therapy, supports
the district court’s findings.
Grunwald argues he is “particularly unamenable to incarceration” because of his
age and poor health, which has some support in caselaw.1 See State v. Wright, 310 N.W.2d
461, 462 (Minn. 1981) (determining a defendant was “particularly unamenable to
incarceration” when the defendant had a “unique” psychiatric condition that would lead to
the defendant being “abused seriously if he were in some type of correctional institution”).

1 Health is not a Trog factor. Trog, 323 N.W.2d at 31. A district court’s analysis of
amenability, however, is not limited to the factors set out in Trog. Soto, 855 N.W.2d at 310
(“[T]hese are not the only factors that can bear on a defendant’s amenability to
probation . . . . But they provide a useful framework for approaching the issue.”).
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Here, the district court noted and considered this factor. The district court stated, “I fully
acknowledge the significant health, emotional, and mental health needs that are before the
court.” It still found the countervailing factors, including public safety and Grunwald’s
slow progress in treatment, outweighed any concerns about Grunwald’s unamenability to
incarceration.
In sum, the record reflects that the district court “considered evidence of factors that
could have supported a departure if they had been substantial or compelling, but concluded
that a departure was not warranted.” Walker, 913 N.W.2d at 468. The record also supports
the district court’s findings about the slow progress of Grunwald’s treatment and the public
safety risk of outpatient treatment. Given the district court’s “great discretion” when
imposing sentences, as discussed in Soto, 855 N.W.2d at 307, we affirm.
Affirmed.