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This opinion is nonprecedential except as provided by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
A23-0216

State of Minnesota,
Respondent,

vs.

Jessica Ann Kong,
Appellant.

Filed December 26, 2023
Affirmed
Johnson, Judge

Ramsey County District Court
File No. 62-CR-22-651

Keith Ellison, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul,
Minnesota; and

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

Cathryn Middlebrook, Chief Appellate Public Defender, Eva F. Wailes, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Bjorkman, Judge; and Ede,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Jessica Ann Kong pleaded guilty to a charge of offering a forged check. The district
court imposed an executed prison sentence of a duration within the presumptive range. We
2
conclude that the district court did not err by not ordering a downward dispositional
departure. Therefore, we affirm.
FACTS
In February 2022, the state charged Kong with offering a forged check, in violation
of Minn. Stat. § 609.631, subd. 3 (2020). In the complaint, the state alleged that Kong
presented a $1,500 check to a bank, which contacted the account holder, who said that the
check had been stolen.
The state and Kong entered into a plea agreement in September 2022. Kong agreed
to plead guilty, and the state agreed to recommend a downward dispositional departure and
to dismiss an auto-theft charge in another pending case. Kong also agreed to remain law-
abiding until sentencing and to cooperate with a pre-sentence investigation (PSI). But she
later was charged with a first-degree controlled-substance crime based on an allegation that
she possessed methamphetamine in late October 2022, only six weeks after her guilty plea
in this case.
The district court conducted a sentencing hearing in November 2022. At the outset
of the hearing, the prosecutor informed the court that the state was withdrawing from the
plea agreement because Kong did not remain law-abiding. But the state nonetheless
recommended that the district court order a downward dispositional departure by imposing
a stayed 28-month prison sentence with three years of probation, which would include 270
days in a workhouse with an opportunity for in-patient chemical-dependency treatment .
Kong joined in the state’s request for a downward dispositional departure.
3
The district court imposed an executed sentence of 21 months of imprisonment,
which is within the presumptive sentencing range. Kong appeals.
DECISION
Kong argues that the district court erred by imposing an executed guidelines
sentence instead of ordering a downward dispositional departure.
The Minnesota Sentencing Guidelines prescribe presumptive sentences for felony
offenses. Minn. Sent’g Guidelines 2.C (Supp. 2021). For any particular offense, the
guidelines sentence is “presumed to be appropriate for all typical cases sharing criminal
history and offense severity characteristics.” Minn. Sent’g Guidelines 1.B.13 (Supp.
2021). 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 (Supp. 2021).
“Substantial and compelling circumstances are those demonstrating that the defendant’s
conduct in the offens e of conviction was significantly more or less serious than that
typically involved in the commission of the crime in question.” State v. Hicks, 864
N.W.2d
153, 157 (Minn. 2015) (quotations omitted).
If a defendant requests a downward 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) (alteration in original) (quoting State v. Best,
449 N.W.2d 426, 427 (Minn. 1989), and Minn. Sent’g Guidelines 2.D.1 (2012)). If
4
substantial and compelling reasons exist, the district court has discretion to order a
downward departure. Id.; Best, 449 N.W.2d at 427.
If a district court departs from the presumptive sentence, the district court is required
to state the reason or reasons for the departure. Minn. Sent’g Guidelines 2.D.1.c (Supp.
2021). But if the district court does not depart, the district court is not required to state
reasons for imposing a presumptive sentence. State v. Johnson, 831 N.W.2d 917, 925
(Minn. App. 2013), rev. denied (Minn. Sept. 17, 2013); State v. Van Ruler, 378 N.W.2d
77, 80 (Minn. App. 1985).
This court applies an abuse-of-discretion standard of review to a district court’s
denial of a request for a downward departure. Soto, 855 N.W.2d at 307-08
; State v. Bertsch,
707 N.W.2d 660, 668 (Minn. 2006). Only in a “rare case” will an appellate court reverse
a district court’s imposition of the presumptive sentence. Bertsch, 707 N.W.2d at 668;
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Kong’s primary argument is that the district court erred by concluding that she is
not particularly amenable to probation. Particular amenability to probation is one of the
mitigating factors recognized in the sentencing guidelines as a basis for a downward
departure. Minn. Sent’g Guidelines 2.D.3.a(7) (Supp. 2021). Particular amenability to
probation is not established if the defendant is only somewhat amenable to probation. Soto,
855 N.W.2d at 308-09. Rather, the defendant must be “particularly” amenable to probation
in a way that “distinguishes the defendant from most others and truly presents the
substantial and compelling circumstances that are necessary to justify a departure.” Id. at
309 (quotation omitted). In determining whether a defendant is particularly amenable to
5
probation so as to justify a downward dispositional departure, a district court may consider,
among other things, “the defendant’s age, [her] prior record, [her] remorse, [her]
cooperation, [her] attitude while in court, and the support of friends and/or family.” State
v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). A district court need not discuss all the Trog
factors if the district court denies a motion for a downward dispositional departure. State
v. Pegel, 795 N.W.2d 251, 254 (Minn. App. 2011).
In this case, the district court stated several reasons for denying the request for a
downward dispositional departure. The district court noted that Kong had ten criminal-
history points based on multiple prior convictions of a variety of crimes. The district court
also noted that Kong had not taken advantage of prior probation opportunities. The district
court further noted that Kong had been in drug court but was terminated from the program
without success. Moreover, the district court noted that Kong had been arrested on a drug
charge only six weeks after pleading guilty in this case. For these reasons, the district court
concluded that substantial and compelling reasons for a sentencing departure do not exist.
The district court did not abuse its discretion in forming that conclusion.
Kong contends that the district court erred by not considering mitigating factors.
Specifically, she contends that her age (28 years old), her acceptance of responsibility, and
her cooperation with court proceedings and the PSI support a downward departure. The
district court did not specifically comment on those factors. But a district court is not
required to comment on the factors argued by a defendant; rather, a district court need not
give any reasons for imposing a presumptive sentence. Johnson, 831 N.W.2d at 925;
Pegel, 795 N.W.2d at 254; Van Ruler, 378 N.W.2d at 80.
6
In any event, the three factors identified by Kong are not persuasive reasons for a
downward departure. First, Kong does not explain why her age at the time of sentencing,
“only” 28 years old, makes her particularly amenable to probation. The supreme court’s
caselaw indicates that Kong’s age, by itself, is unlikely to be a sufficient basis for a finding
of substantial and compelling reason to depart. See Soto, 855 N.W.2d at 310 (rejecting
district court’s reasoning that appellant’s age of “only” 37 years old made him particularly
amenable to probation) . Second, Kong’s argument about acceptance of responsibility is
undercut by the district court’s comment that she continues to engage in multiple forms of
criminal behavior. Third, Kong does not cite any caselaw providing that cooperation with
court proceedings and a PSI is a substantial and compelling reason for a departure, and we
are unaware of any such caselaw. The precedential caselaw indicates that “cooperation”
means cooperation with law enforcement. See State v. Solberg, 882 N.W.2d 618, 622, 624
(Minn. 2016); Soto, 855 N.W.2d at 312; Trog, 323 N.W.2d at 29. In addition, Kong’s
cooperation with the PSI was required by her plea agreement.
More importantly, the record reflects that the district court carefully reviewed the
PSI report and gave Kong’s arguments thoughtful consideration. At the outset of the
sentencing hearing, the district court stated, “I thought hard about this one, and I just can’t
get to where the parties want me to be based on the record that I have in front of me.”
Thereafter the district court listened to Kong’s attorney’s arguments and gave Kong
multiple opportunities to personally address the court. The district court ultimately stated
several valid reasons for its conclusion that substantial and compelling reasons are not
present.
7
Kong further contends that the district court should have ordered a downward
dispositional departure because the parties had agreed on such a sentence. But the caselaw
is clear that an agreement between the parties is not, by itself, a sufficient basis for a
downward dispositional departure. State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002).
Rather, a district court may order a sentencing departure only if there are “substantial[] and
compelling circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1 (Supp.
2021); see also Soto, 855 N.W.2d at 308; Misquadace, 644 N.W.2d at 71-72. The district
court squarely considered that issue and concluded that substantial and compelling reasons
are not present.
Before concluding, we note the state’s request for a precedential opinion stating that
Kong’s argument fails as a matter of law because she does not assert that the district court
failed to exercise discretion. See Minn. R. Civ. App. P. 128.02, subd. 1(f). We decline to
issue such an opinion because the rule of law proposed by the state appears to be in tension
with supreme court caselaw, which allows for reversal of a discretionary departure decision
in a “rare case,” even if a district court has not failed to exercise discretion. See Soto, 855
N.W.2d at 310-15 (reversing grant of downward departure); State v. Hennum, 441 N.W.2d
793, 800-01 (Minn. 1989) (reversing denial of downward departure). In addition, we have
no difficulty resolving this appeal in the state’s favor without articulating and applying a
new rule of law.
In sum, the district court did not err by denying Kong’s request for a downward
dispositional departure and imposing a presumptive sentence.
Affirmed.