State of Minnesota, Appellant,

This opinion is nonprecedential except as provided by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
A22-1585

State of Minnesota,
Appellant,

vs.

Gary Lee Kies,
Respondent.

Filed March 20, 2023
Affirmed
Reilly, Judge

Sherburne County District Court
File No. 71-CR-20-1153

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

Kathleen A. Heaney, Sherburne County Attorney, George R. Kennedy, Assistant County
Attorney, Elk River, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public D efender, St. Paul, Minnesota; and

Richard W. Leroy, Universal Defense, LLC, Otsego, Minnesota (for respondent)

Considered and decided by Reilly, Presiding Judge; Reyes, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant challenges a district court decision granting respondent a downward
dispositional departure from his presumptive prison sentence for second -degree assault .
2
Because the district court did not abuse its discretion by granting the departure motion, we
affirm.
FACTS
In October 2020, respondent Gary Lee Kies argued with his ex-girlfriend’s current
boyfriend, J.J.W., at the woman’s home. J.J.W. left the home on his bicycle. Kies followed
J.J.W. in his car. J.J.W. got off his bicycle and stood next to it. Kies then dr ove up on the
sidewalk and hit J.J.W.’s bicycle with his car. Appellant State of Minnesota charged Kies
with second-degree assault with a dangerous weapon.
Kies pleaded guilty to second-degree assault. During the factual basis portion of his
guilty plea, Kies acknowledged that a car qualifies as a dangerous weapon, that he hit
J.J.W.’s bicycle with his car, and that he caused J.J.W. fear. The district court determined
that the factual basis was sufficient to establish that Kies committed second-degree assault.
The district court accepted Kies’s guilty plea and scheduled a sentencing hearing.
Before sentencing, Kies moved for a downward dispositional departure asserting
that he was particularly amenable to probation. The state opposed the departure reque st.
At sentencing, the district court analyzed the factors for and against departure and
determined that a departure was warranted because Kies was particularly amenable to
probation. The district court stayed execution of Kies’s presumptive prison sentence and
placed him on probation. The state appeals.1

1 Kies did not file a brief and we ordered the matter to proceed under Minn. R. Civ. App.
P. 142.03 (directing that when a respondent fails to file a brief the matter is to be decided
on the merits).
3
DECISION
The Minnesota Sentencing Guidelines prescribe a sentence or a range for the
sentence that is “presumed to be appropriate.” Minn. Sent ’g Guidelines 2.D .1 (2020); see
also State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014) (citing this provision of the
guidelines). The district court “must pronounce a sentence within the applicable range
unless there exist identifiable, substantial, and compelling circumstances” distinguishing
the case and overc oming the presumption in favor of the guidelines sentence. Soto, 855
N.W.2d at 308 (quotation omitted) . Appellate courts afford a district court “great
discretion in the imposition of sentences” and reverse only for an abuse of that discretion.
Id. at 3 07-08 (quotation omitted). We rarely hold that a district court has abused its
discretion in sentencing. Id. at 305.
A d ispositional departure generally focus es on the characteristics of the offender.
State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016). A defendant’s “particular
amenability to individualized treatment in a probationary setting” may justify a downward
dispositional departure from a presumptive commitment to prison. State v. Trog, 323
N.W.2d 28, 31 (Minn. 1982). Minnesota courts are guid ed by several factors, known as
Trog factors, to determine if a defendant is particularly amenable to individualized
treatment in a probationary setting. Id. These factors include “the defendant’s age, his
prior record, his remorse, his cooperation, his attitude while in court, and the support of
[the defendant’s] friends and/or family.” Id.
If a defendant requests a departure from the sentencing guidelines, the district court
must “deliberately consider []” the factors presented in support of the motion. State v.
4
Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984). We are persuaded that the district court
satisfied that obligation here. The district court thoughtfully and fully analyzed each of the
Trog factors and determined that there were substantial and compelling reasons to grant a
dispositional departure.
Age. Kies was 59 years old when he entered his plea and 57 years old when he
committed the offense. The district court noted that Kies was “old enough to know better”
and found that this factor “[did not] necessarily weigh in [Kies’s] favor.”
Prior Record. The district court reviewed Kies’s prior record and the information
in the presentence investigation report (the PSI). The PSI reflects that Kies had several
previous convictions. But many of these offenses happened a long time ago. The district
court determined that, while Kies has a prior criminal record, “most of [Kies’s] history is
actually quite old.” The district court reasoned that this factor favored a departure.
Remorse. The district court also determined that Kies’s remorse supported a
departure. The district court “is properly tasked with deciding whether a defendant ’s
actions express genuine remorse and how much weight to give to that remorse .” Solberg,
882 N.W.2d at 626. Here, the district court determined that Kies had “taken accountability
for [his] actions” and “acknowledged that it was [his] responsibility” to remain law abiding.
Cooperation and Attitude. Similarly, the district court determined that Kies’s level
of cooperation and his attitude supported a departure. The district court noted that Kies
was “cooperative throughout the process in court” and demonstrated he was “t aking these
matters seriously.”
5
Community Support. Lastly, the district court determined that Kies had the support
of his family . Kies also had “additional supports” in the community including mental-
health services, therapy, and inpatient program ming. Kies lives with his mother and his
brother in a home they purchased together . He works two jobs and additional “odd jobs”
in the community. The district court noted that Kies ha s not received any new charges
since the offense and had been engaging in tre atment and programming. The district court
determined this factor favored the departure request.
After considering these factors and the circumstances for and against departure, the
district court found that Kies was entitled to a downward dispositional d eparture from the
sentencing guidelines because he was particularly amenable to probation . We discern no
abuse of discretion in this determination. While the state is dissatisfied with the district
court’s decision, we apply the same standard of review i n departure cases regardless of
which party appeals. Because the record supports the district court ’s decision that there
were substantial and compelling reason s supporting a dispositional departure, we affirm.
Affirmed.