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This opinion is nonprecedential except as provided by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
A22-0417

State of Minnesota,
Respondent,

vs.

Jason Michael Slattum,
Appellant.

Filed December 5, 2022
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Dakota County District Court
File No. 19HA-CR-20-2318

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

Kathryn M. Keena, Dakota County Attorney, Jessica A. Bierwerth, Assistant County
Attorney, Hastings, Minnesota (for respondent)

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

Considered and decided by Reyes, Presiding Judge; Larkin , Judge; and Reilly,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
On appeal from his conviction of and sentence for third -degree murder, appellant
argues that the district court abused its discretion by denying his motion for a downward
dispositional departure and downward durational depar ture. Appellant also argues the
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district court abused its discretion in ordering restitution without considering his ability to
pay. We affirm in part, reverse in part, and remand.
FACTS
In July 2020, appellant Jason Michael Slattum sold heroin to the victim and her
husband. Early the following morning, officers responded to a call for emergency medical
services for the victim who was found unconscious and later pronounced dead after
ingesting heroin that tested positive for fentanyl. Appellant first met the victim a few
months earlier when he responded to an advertisement that she posted on Craigslist seeking
help with pain relief. The couple communicated with appellant via text message and
bought drugs, mainly pills and heroin, on several occasions . The first time appellant
supplied them with heroin, he also provided a dose of Narcan. Appellant reported he did
not know the heroin he sold to the victim contained fentanyl.
Respondent St ate of Minnesota charged appellant with third-degree murder for his
role in the victim’s death.1 He pleaded guilty to the offense after the parties reached a plea
agreement. Appellant filed a motion for the district court to depart from the sentencing
guidelines and grant either a downward durational or dispositional departure . In February
2022, the district court denied his motion and sentenced appellant to 114 months in prison.

1 The particular statute provides: “Whoever, without intent to cause death, proximately
causes the death of a human being by, directly or indirectly, unlawfully selling, giving
away, bartering, delivering, exchanging, distributing, or administering a controlled
substance classified in Schedule I or II, is guilty of murder in the third degree and may be
sentenced to imprisonment for not more than 25 years or to payment of a fine of not more
than $40,000, or both.” Minn. Stat. § 609.195(b) (2018) .
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DECISION
I. The district court did not abuse its discretion by denying appellant’s motion
for a sentencing departure.

As we afford the district court “great discretion in the imposition of sentences,” we
review sentencing decisions only for an abuse of that discretion. State v. Soto, 855 N.W.2d
303, 307-08 (Minn. 2014). The district court must pronounce a sentence of the applicable
disposition and within the applicable range determined by the Minnesota Sentencing
Guidelines, unless “identifiable, substantial, and compelling circumstances” support a
departure. Minn. Sent’g Guidelines 2.D.1 (Supp. 2019). There are two types of sentencing
departures: dispositional and durational. State v. Solberg, 882 N.W.2d 618, 623 (Minn.
2016). A dispositional departure places the offender in a different setting than called for
by the guidelines. Id. “For example, a downward dispositional departure occurs when the
presumptive guidelines sentence calls for imprisonment, but the district court instead stays
execution or imposition of the sentence.” Id. A durational departure is a sentence that
departs in length from the presumptive guidelines range. Id.
Yet, even if substantial and compelling circumstances exist, a district court need not
depart from the guidelines. See State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) . We will
affirm the decision not to depart and the imposition of a presumptive guidelines sentence
when “the record shows that the [district] 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) (quotation omitted), rev. denied (Minn. Sept. 17, 2013). Only in a
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“rare” case do we reverse the district court’s refusal to depart from a presumptive sentence.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
A. The district court did not abuse its discretion by denying appellant’s
motion for a downward dispositional departure.

Appellant argues the district court abused its discretion in denying his motion for a
downward dispositional departure. A dispositional departure focuses on individual
characteristics of the defendant that show whether “the defendant is particularly suitable
for individualized treatment in a probationary setting.” Solberg, 882 N.W.2d at 623
(quotation omitted). “The defendant’s amenabili ty to probation distinguishes the
defendant from most others and truly presents the substantial and compelling
circumstances that are necessary to justify a departure.” Soto, 855 N.W.2d at 309
(quotation omitted). Several factors, including the defendant’s age, prior record, remorse,
cooperation, attitude while in court, and support from friends or family, are relevant to
determining whether a defendant is particularly amenable to probation. State v. Trog, 323
N.W.2d 28, 31 (Minn. 1982). The district court need not discuss every factor as long as
the district court considered the circumstances for and against departure and exercised its
discretion. State v. Pegel, 795 N.W.2d 251, 254 (Minn. App. 2011).
Appellant claims h e is entitled to a downward dispositional departure because h is
criminal history relates to his chemical dependance, he is committed to his sobriety and
recovery, and he has a supportive network of friends and family. The record shows that
the district court weighed the arguments in support of the departure motion but did not fin d
substantial or compelling reasons to depart from the guidelines.
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In examining appellant’s criminal record, t he district court referenced the
presentence investigation report (the PSI) during the sentencing hearing. The district court
acknowledged that appellant’s chemical addiction contributed to his criminal offenses. It
noted appellant’s history of probation violations and a statement by his supervising
probation agent concluding that appellant is “unamenable to probation supervision” and “a
significant risk to public safety and the community.” The district court also considered
appellant’s chemical dependence and amenability to treatment by acknowledging
appellant’s three attempts at treatment were followed by terminations from the program or
relapses. Despite a preexisting recommendation for long-term residential treatment, the
district court noted that he did not seek such treatment before this offense occurred.
The district court also recognized the letters submitted by appellant’s family
members expressing their willingness to support him and provide resources and found them
to be sincere. During the hearing, appellant a pologized to the victim’s family and took
responsibility for contributing to her death. But, when c onsidering appellant’s remorse,
the district court observed that appellant stated in his PSI that he felt as if his own life was
ruined by the incident, cau sing t he district court to question the degree of appellant’s
remorse.
Upon review, the record shows the district court considered the circumstances for
and against departure. The determination that appellant was not particularly amenable to
treatment in a probationary setting and not entitled to a downward dispositional departure
from the presumptive sentence was well within the district court’s discretion and supported
by the record.
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B. The district court did not abuse its discretion by denying appellant’s
motion for a downward durational departure .

Rather than examining the “individual characteristics of the offender,” the district
court examines the nature of the offense when considering a durational departure. Solberg,
882 N.W.2d at 625. “Substantial and compelling circumstances for a durational departure
are those which demonstrate that the defendant’s conduct was significantly more or less
serious than that typically involved in the commission of the crime in question.” State v.
Rund, 896 N.W.2d 527, 532 (Minn. 2017) (quotation omitted). But the presence of a
mitigating factor does not obligate the district court to impose a shorter sentence. Wells v.
State, 839 N.W.2d 775, 781 (Minn. App. 2013) , rev. denied (Minn. Feb. 18, 2014).
Appellant contends that his offense was significantly less serious than a typical
third-degree murder case because he did not solicit the victim and her husband to buy drugs.
Appellant points to the fact that the couple first approached him and that the number of text
messages sent by the victim out number those sent by appellant. We disagree. Recently,
we addressed a similar argument in a n unpublished opinion and concluded that the statute
criminalizing third -degree murder contemplates the willing part icipation of the victim.
State v. Guzik, A20-0183, 2020 WL 4743459, at *3 (Minn. App. Aug. 17, 2020). Although
not precedential, we find the reasoning persuasive . In Guzik, the defendant argued his
third-degree murder offense was less serious than the typical controlled -substance murder
because the victim was a willing participant in the drug transaction and provided money
for the purchase. Id. at *3. This court held that the willing participation of the victim did
not render the defendant’s conduct any less serious under statute. See Minn. Stat.
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§ 609.195(b) (stating a person guilty of third -degree murder engages in “directly or
indirectly, unlawfully selling, giving aw ay, bartering, delivering, exchanging, distributing,
or administering a controlled substance”). Here too, the victim’s act of seeking drugs from
appellant does not detract from the seriousness of appellant’s own conduct . The district
court noted that it read the text messages and observed that when the victim sought heroin,
appellant willingly sold it to the couple.
Appellant also argues that his offense differs from the typical offense because, one
time, he gave the victim and her husband Narcan to “help avoid the possibility of the
adverse effects from the drugs.” While recognizing that this fact may suggest appellant
was trying to promote the victim’s safety , the district court remarked it also illustrated
appellant knew about heroin’s danger and chose to sell it for money to feed his addiction
rather than refusing to sell it because of the risk. Even if providing Narcan is a substantial
and compelling reason to depart, the district court is not required to do so. Wells , 839
N.W.2d at 781. Moreover, providing Narcan during a previous sale does not make this
sale less serious than the typical offense. In sum, the district court acted within its
discretion by denying appellant’s motion for a durational departure.
II. The district court abused its discretion by ordering appellant to pay restitution
and failing to follow the requirements of Minnesota Statutes Section 611A.045
(2020).

We review orders for restitution for an abuse of the district court’s discretion. State
v. Wigham, 967 N.W.2d 657, 662 (Minn. 2021). Victims of a crime have the right to
receive restitution as part of the disposition of a criminal charge if the offender is convicted
or found delinquent. Minn. Stat. § 611A.04, subd. 1(a) (2020). T he district court must
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consider “the income, resources, and obligations of the defendant” in determining whether
to award restitution and in what amount. Minn. Stat. § 611A.045, subd. 1(a)(2). An order
for restitution must include “a provision requiring a payment schedule or structure” and the
district court “may assign the responsibility for developing the schedule or structure to the
court administrator, a probation officer, or another designated person.” Id. at subd. 2(a).
In Wigham, the Minnesota Supreme Court articulated that the district court does not have
to “make specific findings regarding the defendant’s income, resources, and obligations”
but it must “affirmatively take into account the defendant’s ability to pay.” 967 N.W.2d at
663. A district court fulfills its statutory duty “when it expressly states, either orally or in
writing, that it considered the defendant’s ability to pay” and “the record include[s]
sufficient evidence about the defendant’s income, resources, and obligations” to consider
ability to pay. Id. at 664-65.
Though there is some evidence in the record of appellant’s financial circumstances ,
the district court failed to make clear on the record at appellant’s sentencing hearing or in
the written restitution order, that it considered appellant’s ability to pay. Respondent
contends that the district court ’s direction that restitution would be withheld from
appellant’s prison wage is enough to satisfy the statutory requirement. Even so, the bright-
line rule set forth by Wigham makes clear that an express statement by the district court on
ability to pay is necessary and “avoids the need to scour bits and pieces of information to
try to glean what the district court may have considered.” Id. at 664 n.5 (emphasis omitted).
Further, the district court ‘s order did not include a provision requiring a payment s chedule
or assign the responsibility for developing a schedule to another, as required by statute .
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Because the district court did not follow the requirements of the restitution statute,
it abused its discretion. Thus, we reverse and remand the matter to the district court solely
for further proceedings on the issue of restitution consistent with this decision.
Affirmed in part, reversed in part, and remanded.