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This opinion is nonprecedential except as provided by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
A22-0789

State of Minnesota,
Respondent,

vs.

Ajoko Gaye,
Appellant.

Filed April 10, 2023
Affirmed
Reyes, Judge

Ramsey County District Court
File No. 62-CR-20-2595

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

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

Considered and decided by Reyes, Presiding Judge; Larson, Judge; and Klaphake,
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NONPRECEDENTIAL OPINION
REYES, Judge
On appeal from his conviction of first-degree burglary, appellant argues that the
district court abused its discretion by denying his motion for a downward dispositional
departure. We affirm.
FACTS
In April 2020, appellant Ajoko Gaye entered a residence uninvited while the
homeowners we re asleep. Appellant stole a television, a gaming system, two computers,
shoes, a wallet, car keys, and a motor vehicle. The next day, a police officer observed the
stolen vehicle with appellant inside and arrested him. Respondent State of Minnesota
charged him with first -degree burglary in violation of Minn. Stat § 609.582, subd. 1(a)
(2018), and motor-vehicle theft in violation of Minn. Stat § 609.52, subd. 2(a)(17) (Supp.
2019).
The parties reached a plea agreement consisting of appellant pleading guilty to the
burglary charge in exchange for the state dismissing the theft charge. After the district
court accepted the plea agreement, it conditionally released appellant to JusticePoint , a
pretrial supervision agency, pending se ntencing. The district court explained that
appellant’s release to JusticePoint required him to check in, abstain from using any drugs
or alcohol that are not prescribed, and undergo urinalysis testing.
The sentencing worksheet calculated a presumptive sentence of 39 months with a
lower end of 34 months and upper end of 46 months of the presumptive range. Following
the hearing, appellant filed a downward -dispositional-departure motion asserting that he is

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particularly amenable to probation. Because of the nature of appellant’s presumptive
sentence and the motion filed, the district court continued the sentencing hearing five times
to give appellant more time to prove that his circumstances provide a substantial and
compelling reason not to im pose a guideline sentenc e. On March 9, 2022, the final
sentencing hearing took place. The district court denied appellant’s motion for a downward
dispositional departure and sentenced appellant to 34 months in prison, the lower end of
the presumptive range. This appeal follows.
DECISION
Appellant argues that the district court abused its discretion by denying his motion
for a downward dispositional departure because he was particularly amenable to probation.
We are not convinced.
Appellate courts “review a district court’s decision to depart from the presum ptive
guidelines sentence for an abuse of discretion.” State v. Solberg, 882 N.W.2d 618, 623
(Minn. 2016). When the sentence imposed is within the presumptive guidelines range, we
generally do not review the district court’s exercise of its discretion. State v. Delk , 781
N.W.2d 426, 428 (Minn. App. 2010), rev. denied (Minn. July 20, 2010). As a result, we
will not exercise our authority to modify a sentence within the presumptive range , absent
compelling circumstances. Id.
A district court may depart from the guidelines sentence “only if aggravating or
mitigating circumstances are present, ” “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) (quotations omitted). But even if substantial and compelling

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circumstances exist, a district court need not depart from the guidelines. State v. Walker,
913 N.W.2d 463, 468 (Minn. App. 2018) . “[A] defendant ’s particular amenability t o
individualized treatment in a probationary setting will justify departure in the form of a
stay of execution of a presumptively executed sentence. ” State v. Trog, 323 N.W.2d 28,
31 (Minn. 1982). “Factors considered by the [district court] may include defendant ’s age,
prior record, remorse, cooperation, attitude in court, and the support of friends or family. ”
State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985) .
The presentence-investigation (PSI) report followed the recommendation from the
sentencing guidelines and recommended that appellant be sentenced to 39 months.
Moreover, t he record reveals that the district court gave appellant many opportunities to
show that he qualified for a downward dispositional departure by continuing his sentencing
hearing five times.
At the first sentencing hearing in August 2021, the district court continued the
hearing to give appellant an opportunity to maintain contact with JusticePoint because he
had been missing his urinalysis testi ng. At the September sentencing hearing, appellant
appeared 20 minutes late . The district court nevertheless heard appellant’s argument on
his departure motion, including that he was taking medication for his substance -abuse
disorder. The district court noted that the PSI report revealed that appellant had been
referred to treatment in 2018 by his probation officer but failed to complete the program.
Aside from medically assisted treatment, the district court asked appellant what other
chemical-health t reatment he had participated in and whether he would be prepared to
participate in programming recommended by probation.

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In response, his trial counsel stated that appellant “is not the most reliable ,” “but
he’s relying upon himself and those that are in his life to help him maintain [sobriety].”
Appellant also told the district court that he had been engaged with caseworkers from the
YMCA and saw Dr. Larson for his mental health. The district court requested
documentation to support that appellant wa s seeing Dr. Larson. Appellant’s trial counsel
asked for more time to show that appellant is particularly amenable to treatment. The
district court granted his request and noted that being amenable to treatment means taking
active steps to address that p roblem, not just thinking about treatment.
At the third and fourth sentencing hearings, appellant failed to provide the district
court with consistent evidence that he was getting treatment. The district court found that
it had not received a single uranalysis test from appellant. It also found out that appellant
had an active warrant on a felony matter for damage to property that occurred in August
2021.
At the final sentencing hearing, appellant’s trial counsel argued for a departure,
stating that appellant had participated in the E vergreen Recovery program but he could no
longer participate in that program because of insurance issues . He also claimed that
appellant had been seeing a counsel or every two weeks since November 2021. The state
argued against departure , citing the PSI report, appellant being on probation at the time of
the burglary offense , and appellant’s new felony charge, just three months after his guilt y
plea. Ultimately, the district court denied appellant’s motion for downward dispositional
departure and sentenced appellant to the lowest presumptive sentence of 34 months. I t
explained:

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It is an eternal belief that people are always capable of
redemption and that people are always capable of making good
choices. Part of the reason that we had continued this matter
so very many times was so that you could create a record that
I could find and hold up against the [caselaw] and say this
record shows both the people who may be on the short end of
the spectrum of wishful thinkers and the people who may be
considered to be much more cynical about human behavior. At
this time, I [cannot] make those findings for you. That [i]s one
of the hardest things about being a judge is watching someone
make an effort, but fall short.

The district court carefully evaluated all the testimony and information before
making its determination that it could not find appellant particularly amenable to treatment.
See Van Ruler, 378 N.W.2d at 80-81 (stating that appellate courts defer to district court’s
discretion if record shows it evaluated all testimony and information presented before
making determination). We discern no abuse of discretion by t he district court.
Affirmed.