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This opinion is nonprecedential except as provided by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
A22-1209

State of Minnesota,
Respondent,

vs.

Andrew Paul Anderson,
Appellant.

Filed March 27, 2023
Affirmed
Johnson, Judge

Dakota County District Court
File No. 19HA-CR-20-3007

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

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

Ryan J. Grove, Rogosheske, Rogosheske & Atkins, P.L.L.C., South St. Paul, Minnesota
(for appellant)

Considered and decided by Johnson, Presiding Judge; Segal , Chief Judge; and
Bryan, Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Andrew Paul Anderson pleaded guilty to one count of first-degree driving while
impaired. At sentencing, he requested a downward dispositional departure from the
presumptive sentencing range on the ground that he is particularly amenable to probation.
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The district court imposed a prison sentenc e within the presumptive range. We conclude
that the district court did not err by imposing a presumptive sentence. Therefore, we affirm.
FACTS
In December 2020, a state trooper stopped a vehicle driven by Anderson after
receiving a report of erratic driving. The trooper observed bloodshot and watery eyes and
smelled alcohol on Anderson’s breath. The trooper arrested Anderson after conducting
field sobriety tests. Anderson submitted to a breath test, which indicated an alcohol
concentration of 0.19.
The state charged Anderson with one count of first-degree driving while impaired
(DWI), in violation of Minn. Stat. § 169A.20, subd. 1(1) (2020), based on the allegation
that he was under the influence of alcohol, and one count of first-degree DWI, in violation
of Minn. Stat. § 169A.20, subd. 1(5), based on the allegation that his alcohol concentration
was more than 0.08. The state charged Anderson with felony offenses because he had been
convicted of a felony-level DWI offense in 2006. See Minn. Stat. § 169A.24, subds. 1(2),
2 (2020).
Sixteen months later, in April 2022, the state and Anderson entered into a plea
agreement by which Anderson agreed to plead guilty to count 1 and the state agreed to
dismiss count 2. The district court ordered a pre-sentence investigation (PSI). The
probation officer who authored the PSI report recommended that the district court impose
a prison sentence of 54 months (the fixed sentence duration within the applicable
sentencing range of 46 to 64 months) , stay execution of the sentence , place Anderson on
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probation, and order him to serve one year in jail. See Minn. Sent’g Guidelines 2.C.1
(2020).
The district court conducted a sentencing hearing in June 2022. The state requested
that the district court impose a n executed prison sentence of 48 months. The prosecutor
noted that Anderson has five prior DWI convictions and two prior felony convictions, that
Anderson’s alcohol concentration was more than twice the 0.08 threshold at the time of the
offense, that he was driving in heavy traffic, and that his offense occurred only six months
after he was charged with another felony DWI offense in Washington County. The
prosecutor acknowledged that Anderson had remained sober while charges were pending
but attributed his sobriety to the fact that he was subject to random testing.
Anderson’s attorney requested a downward dispositional departure on the ground
that Anderson is particularly amenable to probation. Based on the information in the PSI
report, Anderson’s attorney argued that Anderson had been sober for many years between
his 2006 DWI conviction and his mid-2020 arrest for DWI in Washington County and had
maintained sobriety again since being charged there. The attorney explained that, at the
time of the offense in this case, Anderson was unemployed and had lost his home but that
he since had regained employment and housing and was attending Alcoholics Anonymous
(AA) meetings three times per week. The attorney introduced four letters of support
written by persons who have attended AA meetings with Anderson.
When given an opportunity to speak in allocution, Anderson stated that he was sober
for 12 years while attending AA meetings but then stopped attending them. He stated that
he relapsed after experiencing a divorce and the disruptions arising from the COVID- 19
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pandemic. He stated that he has recommitted to attending AA meetings and maintaining
sobriety.
The district court stated that it had read the letters of support and had “spent a lot of
time looking at this and thinking about it.” The district court commended Anderson for
doing well on probation for the Washington County offense. But the district court
emphasized the fact that this is Anderson’s third felony DWI conviction. The district court
noted its concern for public safety and stated that, in committing the current offense,
Anderson had endangered others. The district court concluded by finding that Anderson
is not particularly amenable to probation and that there are no substantial and compelling
mitigating circumstances. Accordingly, the district court denied Anderson’s request for a
downward dispositional departure and imposed an executed sentence of 48 months of
imprisonment. Anderson appeals.
DECISION
Anderson argues that the district court erred by denying his request for a downward
dispositional departure.
The Minnesota Sentencing Guidelines generally provide for presumptive sentences
for felony offenses. Minn. Sent’g Guidelines 2.C (2020). For any particular offense, the
presumptive sentence is “presumed to be appropriate for all typical cases sharing criminal
history and offense severity characteristics.” Minn. Sent’g Guidelines 1.B.13 (2020).
Accordingly, a district court “must pronounce a sentence . . . within the applicable
[presumptive] range . . . unless there exist identifiable, substantial, and compelling
circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1 (2020).
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The sentencing guidelines provide non-exclusive lists of mitigating and aggravating
factors that may justify a departure. See Minn. Sent’g Guidelines 2.D.3 (2020). One of
the listed mitigating factors is “particular amenability to probation.” Minn. Sent’g
Guidelines 2.D.3.a (7). In determining whether a defendant is particularly amenable to
probation, a district court may consider, among other factors, “the defendant’s . . . prior
record, his remorse, his cooperation, his attitude while in court, and the support of friends
and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
If a defendant requests a downward dispositional departure, a district court first 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.” State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014) (quoting State v. Best, 449
N.W.2d 426, 427 (Minn. 1989), and Minn. Sent’g Guidelines 2.D.1 (2012)). In making
that determination, a district court “must exercise . . . discretion by deliberately considering
circumstances for and against departure.” State v. Mendoza, 638 N.W.2d 480, 483 (Minn.
App. 2002), rev. denied (Minn. Apr. 16, 2002). But a district court need not expressly
mention all the factors mentioned by a defendant, and “the mere fact that a mitigating factor
is present . . . does not obligate the court to place [a] defendant on probation.” State v.
Pegel, 795 N.W.2d 251, 253 (Minn. App. 2011) (quotation omitted).
If substantial and compelling mitigating factors are present, a district court has
discretion to order a downward dispositional departure. Id.; Best, 449 N.W.2d at 427. This
court generally applies an abuse-of-discretion standard of review to a district court’s denial
of a motion for a downward dispositional departure. Soto, 855 N.W.2d at 307-08. But a
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district court has discretion to depart from the presumptive range “ only if aggravating or
mitigating circumstances are present; if aggravating or mitigating circumstances are not
present, the trial court has no discretion to depart.” Best, 449 N.W.2d at 427 (emphasis
omitted). A district court abuses its discretion if “‘ its decision is based on an erroneous
view of the law.’” Soto, 855 N.W.2d at 308 n.1 (quoting Riley v. State, 792 N.W.2d 831,
833 (Minn. 2011)).
Anderson’s argument has two parts. First, he contends that the district court erred
by not exercising discretion in denying his request for a downward dispositional departure.
He contends that the district court did not consider the mitigating facts contained in the PSI
report and, instead, focused on the fact that this offense is Anderson’s third felony DWI
conviction. He relies on this court’s opinion in State v. Curtiss, 353 N.W.2d 262 (Minn.
App. 1984), in which we remanded for reconsideration after concluding that the district
court had not considered all relevant mitigating factors. Id. at 263-64.
This case is meaningfully different from Curtiss. In that case, the district court
stated that there was “no justifiable reason” to depart from the presumptive sentence. Id.
at 263. We determined that the district court had “abandoned” the possibility of a
downward dispositional departure without “comparing reasons for and against.” Id. In
this case, in contrast, the district court expressly mentioned the facts that Anderson’s
attorney had cited in his argument for a departure, such as Anderson’s renewed sobriety,
his success on probation in the Washington County case, and the letters of support
submitted on his behalf. The record shows that the district court did consider the mitigating
factors that might support a departure but determined that they did not outweigh other
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factors and did not allow a finding of substantial and compelling reasons for a departure.
The district court did not abuse its discretion in doing so.
Second, Anderson contends that the district court erred by basing its decision on the
incorrect premise that a departure was not permissible because of Anderson’s criminal
history. He contends that the district court was excessively focused on the fact that this
offense is his third felony DWI conviction. He compares this case to Soto, in which the
supreme court concluded that this court erred by treating a single Trog factor as a necessary
condition of a downward departure. See Soto, 855 N.W.2d at 311.
The state contends in response that the district court properly understood that it had
discretion in considering Anderson’s arguments concerning mitigating factors. We agree.
The district court referred to the legal requirement of substantial and compelling
circumstances and complimented Anderson on doing well on probation but stated that he
had not “distinguish[ed]” himself “from all the other people that appear before the court.”
Anderson is correct that the district court mentioned several times that Anderson was being
sentenced for his third felony DWI conviction. We interpret the district court’s repeated
reference to that fact to indicate that it was a significant concern of the district court, not
that the district court felt constrained by the law to such an extent that it did not have any
discretion to find substantial and compelling circumstances. The district court’s statements
are consistent with Soto, in which the supreme court stated that a district court must “ensure
that the defendant’s amenability to probation distinguishes the defendant from most others
and truly presents the ‘substantial[] and compelling circumstances’ that are necessary to
justify a departure.” Id. at 309 (alteration in original) (quoting Minn. Sent’g Guidelines
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2.D.1 (2012)). The district court did not abuse its discretion by the manner in which it
considered the fact that this offense is Anderson’s third felony DWI conviction.
Thus, the district court did not err by determining that Anderson is not particularly
amenable to probation and did not err by imposing a presumptive sentence.
Affirmed.