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This opinion is nonprecedential except as provided by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
A23-1414

State of Minnesota,
Respondent,

vs.

Jamez Antoine Powell,
Appellant.

Filed October 14, 2024
Affirmed
Cochran, Judge

Ramsey County District Court
File No. 62-CR-22-3331

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

Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Senior Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Connolly , Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
On appeal from his conviction of first-degree criminal sexual conduct, appellant
argues that the district court abused its discretion by denying his motion for a downward
dispositional departure from his presumptive prison sentence. We affirm.
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FACTS
In June 2022, respondent State of Minnesota charged appellant Jamez Antoine
Powell with first-degree criminal sexual conduct in violation of Minnesota Statutes section
609.342, subdivision 1(h)(iii) (2014), and second-degree criminal sexual conduct in
violation of Minnesota Statutes section 609.343, subdivision 1(h)(iii) (201 4). The
complaint alleged that Powell repeatedly sexually abused his niece between 2016 and 2019
when his niece was age six through age nine.
According to the complaint, the victim disclosed the abuse to her parents in
April 2022. The victim’s mother, who is also Powell’s sister-in -law, took the victim to
Midwest Children’s Resource Center for a medical examination. During the examination,
the victim stated that Powell abused her “repeatedly” while he was babysitting her, which
used to happen “a lot.” Powell would take her “into a guest bedroom and have her pull
down her pants” and “[s]ometimes he pulled her pants down himself.” Powell also would
“touch and lick her vagina” and “put his penis in [her] mouth.” Powell told the victim “not
to tell her brother because he was too young.” Recounting the last time Powell abused her,
the victim said Powell entered the shower with her, touched her chest, and commented to
the effect of, “Wow! You’ve grown.” The victim “kept the abuse a secret” until Powell
followed her around at a family funeral, which made the victim “very uncomfortable” and
gave her nightmares. The victim disclosed the abuse to her parents, and she told her older
cousins “because she didn’t want anything to happen to them.”
Powell pleaded guilty to first-degree criminal sexual conduct without any agreement
as to sentencing. At the March 2023 plea hearing, Powell reported that he had started a
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long-term sex offender treatment program. Powell also acknowledged that his presumptive
sentence for the offense would be 144 months unless the district court found a basis to
depart. The district court deferred acceptance of the plea, ordered a presentence
investigation (PSI) and psychosexual evaluation, and set the matter for sentencing.
PSI Report and Psychosexual Evaluation
The PSI report included details of Powell’s criminal history. In 2018, Powell was
convicted of gross misdemeanor indecent exposure for kissing his sixteen-year -old
fiancée’s sister, putting his face in her crotch, and grabbing her buttocks. In another
incident from 2018, Powell gave a woman a ride to her apartment and, once there, he asked
to use her restroom. When Powell entered the apartment, he pulled down his pants,
exposed his penis, and asked, “Can you help me? Can we go into the bedroom?” The
woman asked Powell to leave and called the police. Powell was then arrested and later
convicted of misdemeanor disorderly conduct in relation to that incident.
The PSI report and psychosexual evaluation also reviewed Powell’s treatment
history. The psychosexual evaluation ordered in this case was not Powell’s first; he had
participated in an earlier evaluation after the 2018 indecent- exposure charge. That
evaluation recommended that Powell attend and complete “full sex offender treatment,”
but he did not. Instead, Powell completed a course on “healthy sexual boundaries,” which
was required as a term of his indecent-exposure probation. In this psychosexual evaluation,
Powell reported that he “ha[d] been attending outpatient sex offender treatment” for about
two months. The psychosexual evaluation noted that “Powell has a significant personality
disorder and paraphilic disorder which may impede his ability to change.”
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The PSI report recommended that Powell be sentenced in accordance with the
Minnesota Sentencing Guidelines and committed to the Commissioner of Corrections for
144 months. The psychosexual evaluation reported that Powell “continues to be a high
risk to reoffend against other females, adults and minors.” It recommended that Powell
“[c]omplete reputable sex offender treatment programming” and noted that “[i] f he is
sentenced to prison, he will be directed to complete treatment while incarcerated.” The
PSI report and psychosexual evaluation were available to the district court at the sentencing
hearing.
Motion for Downward Dispositional Departure
Approximately one month before the sentencing hearing, Powell filed a written
motion for a downward dispositional departure. He argued that “he pleaded guilty and
accepted responsibility” and that he “sought treatment, has been treated[,] and will continue
to be treated.”
At the sentencing hearing, defense counsel argued in support of the motion. After
a few introductory remarks, defense counsel stated, “We had a brief conversation in
chambers and the . . . court told me as a courtesy what it was inclined to do and the reasons
why and I understand that but I just want to make a couple of matters present for the
record.” Defense counsel then argued that a downward dispositional departure was
appropriate because Powell had been employed full-time at a dialysis center and had
attended treatment for three months. Defense counsel acknowledged that Powell’s
paraphilia disorder makes him “high risk,” but he contended that paraphilia is a “treatable
disorder,” Powell “has been going to treatment,” and his treatment “goes on for much,
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much longer.” Finally, defense counsel noted that Powell “has had no conditional release
violations,” including “no incidents of contact with minors.” In closing, defense counsel
stated, “I understand what the court is inclined to do but I simply wanted to make that
argument for Mr. Powell.”
The state requested that the district court deny Powell’s downward dispositional
departure motion because he has a prior sex offense from “several years ago” and Powell
did not take the opportunity to “take full advantage” of treatment then. The state
emphasized that Powell’s failure to get treatment led to “devastating consequences” for the
victim and the victim’s family. The victim’s parents provided impact statements. Powell
testified and expressed remorse.
Sentencing
The district court then sentenced Powell. Before announcing its decision, the
district court acknowledged Powell’s admissions and that he has “made some efforts.” But
the district court raised several concerns based on its review of the PSI and psychosexual
evaluation: Powell did not express “a lot of insight into [his] impact on the victim”; Powell
said the conduct “didn’t happen as long as [the victim] said it did”; Powell displayed “poor
boundaries with the evaluator”; and Powell “share[s] characteristics with groups of
offenders who reoffend . . . at a moderate to high level.” In particular, the district court
flagged that Powell’s desire to find “work as a music minister in a church setting where
[he is] going to have no doubt contact with children” caused the court to “question both
[Powell’s] motivation and the sincerity of [his] concern.” The district court concluded that
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“there aren’t substantial compelling reasons to depart from the Minnesota Sentencing
Guidelines at this time.”
The district court then convicted Powell of first-degree criminal sexual conduct,
committed Powell to the Commissioner of Corrections for 144 months, and imposed the
mandatory ten -year conditional- release period. The district court also dismissed the
second-degree criminal sexual conduct count.
Powell appeals.
DECISION
Powell argues that the district court abused its discretion by denying his motion for
a downward dispositional departure because it decided his motion prior to the sentencing
hearing. Alternatively, he argues that the district court abused its discretion by denying the
motion because Powell demonstrated that he is particularly amenable to probation.
The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses. Minn. Stat. § 244.09, subd. 5 (2014). 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. 2015).
Accordingly, “[t]he court must pronounce a sentence . . . within the applicable range unless
there exist identifiable, substantial, and compelling circumstances to support a departure.”
Minn. Sent’g Guidelines 2.D.1 (Supp. 2015). A downward dispositional departure “occurs
when the Guidelines recommend a prison sentence[,] but the court stays the sentence” and
places the defendant on probation. Minn. Sent’g Guidelines 1.B.5.a(2) (Supp. 2015).
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A district court has the discretion to grant a downward dispositional departure if the
defendant is “particularly amenable to probation” but is not required to do so. Minn. Sent’g
Guidelines 2.D.3.a(7) (Supp. 2015); State v. Olson, 765 N.W.2d 662, 664-65 (Minn. App.
2009). “By requiring a defendant to be particularly amenable to probation . . . we ensure
that the defendant’s amenability . . . truly presents the substantial and compelling
circumstances that are necessary to justify a departure.” State v. Soto, 855 N.W.2d 303,
309 (Minn. 2014) (quotation omitted). District courts consider “[n]umerous factors” in
determining whether an offender is particularly amenable to probation. State v. Trog ,
323 N.W.2d 28, 31 (Minn. 1982). These factors, sometimes referred to as the Trog factors,
include age, criminal history, remorse, cooperation, attitude in court, and support of friends
and family. Id. 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. 2015). But a district court need not explain its decision to impose 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, 80-81 (Minn. App. 1985).
We review a district court’s decision to deny a motion for a dispositional departure
for an abuse of discretion. Soto, 855 N.W.2d at 307-08. “An abuse of discretion occurs if
the district court’ s decision is against logic and the facts in the record or based on an
erroneous view of the law.” State v. Beganovic, 974 N.W.2d 278, 287 (Minn. App. 2022),
aff’d on other grounds , 991 N.W.2d 638 (Minn. 2023). We will affirm a presumptive
sentence if the record establishes that “the sentencing court carefully evaluated all the
testimony and information presented before making a determination.” State v. Pegel,
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795 N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted). Only in a “rare case” will
we reverse a district court’s departure decision. Soto, 855 N.W.2d at 305.
Powell’s Argument Regarding the Timing of the Decision
Powell first argues that the district court abused its discretion by “decid[ing] the
motion before being presented with the testimony and information in support.” In his brief,
Powell asserts that the district court “told the parties that it was going to deny the departure
motion before the sentencing hearing even began.” And Powell contends that at the
hearing, “after being presented with the facts in support of a departure, the court did not
make any findings indicating that it had considered” the Trog factors. Accordingly, Powell
maintains that the district court decided the motion prior to the hearing and “may have
relied on improper reasons” in doing so. To support his argument, Powell cites two cases
where this court reversed a district court’s decision denying a motion for a downward
dispositional departure. See State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984)
(holding that a district court abuses its discretion by failing to weigh reasons for and against
departure); State v. Mendoza, 638 N.W.2d 480, 484 (Minn. App. 2002) (holding that a
district court abuses its discretion when it considers improper reasons for
departure: immigration status and possible deportation), rev. denied (Minn. Apr. 16, 2002).
The state disagrees with Powell’s characterization of the district court’s decision-
making process. The state notes that the district court was “already well-acquainted with
the basis for [Powell’s] dispositional-departure argument” by the time of the sentencing
hearing because it had received Powell’s written motion “over a month” before the hearing.
The state also contends that the district court “explicitly considered [Powell’s] statements
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and other relevant factors during the sentencing hearing,” including his progress in
treatment, his risk of reoffending, and his attitude towards the harm he caused to the victim.
The state emphasizes that these considerations align with the Trog factors.
We agree with the state that the record does not support Powell’s contention that the
district court decided Powell’s departure motion prior to the sentencing hearing. We
acknowledge that the transcript from the sentencing hearing does reflect that defense
counsel said the following: “We had a brief conversion in chambers . . . and the court told
me as a courtesy what it was inclined to do and the reasons why.” This statement reflects
that the district court expressed its inclination, which is different from the district court
deciding the motion before the hearing. And the transcript of the sentencing hearing
demonstrates that the district court had not made a decision prior to the hearing. At the
hearing, the district court heard argument from counsel, listened to two victim impact
statements, and gave Powell a chance to address the court. After hearing from Powell, the
district court complimented Powell for making some admissions “that not everyone in [his]
circumstances would make” but noted that it was discouraged because Powell did not show
much “insight into [Powell’s] impact on the victim.” The district court also expressed
concern for public safety if the district court were to grant Powell’s motion for a downward
dispositional departure because Powell was planning on working “as a music minister in a
church setting where [Powell was] going to have . . . contact with children.” These
comments reflect that the district court decided to deny Powell’s request for a downward
dispositional departure at the sentencing hearing after carefully evaluating the relevant
testimony and information in the record. Therefore, Powell’s first argument fails.
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Powell’s Argument Regarding his Particular Amenability to Probation
Powell next argues that the district court’s decision to commit Powell to prison was
against logic and facts in the record because Powell “proved his particular amenability to
probation.” In support of this argument, Powell asserts that he was making progress
towards being cured of his paraphilia disorder and that “he will not receive the necessary
treatment” in prison. Powell also notes that he admitted guilt, took responsibility for his
conduct, complied with the conditions of his pretrial release, and maintained employment.
We conclude that this argument is unavailing.
While Powell points to facts in the record that may support a finding that Powell is
particularly amenable to probation, the district court’s decision to impose the presumptive
prison sentence is not against logic or the facts in the record. The transcript from the
sentencing hearing reflects the district court acknowledged circumstances cited by Powell
as supporting his request for probation such as his progress in treatment. But the transcript
also reflects that the district court was concerned by Powell’s moderate to high risk of
reoffending, his criminal history, the elements of the particular offense, his lack of insight
into his impact on the victim, and his desire to be employed in a position that would likely
place him in contact with children. These concerns are supported by facts in the record ,
including the PSI report and psychosexual evaluation as well as Powell’s statements to the
court. Thus, the district court’s decision to impose the presumptive prison sentence is not
contrary to logic or facts in the record.
We are not persuaded otherwise by Powell’s reliance on two decisions of this court.
See State v. Hickman, 666 N.W.2d 729, 73 2 (Minn. App. 2003) (observing that admitting
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guilt is a “critical factor in an offender’s amenability to treatment”); State v. Malinski,
353 N.W.2d 207, 209 (Minn. App. 1984), rev. denied (Minn. Oct. 16, 1984) (reciting the
district court’s observation that imprisonment will “entrench the defendant further into the
life of criminal conduct”). Neither case concludes that the district court abused its
discretion, as Powell asks us to do now. See Hickman, 666 N.W.2d at 731-33 ; Malinski,
353 N.W.2d at 209-11. Nor does either case establish that the district court must grant a
motion for dispositional departure when a defendant is amenable to treatment in the
community. See Hickman, 666 N.W.2d at 731-33; Malinski, 353 N.W.2d at 209 -11. To
the contrary, “the mere fact that a mitigating factor is present in a particular case” does not
require the district court to grant a downward dispositional departure. Pegel , 795 N.W.2d
at 253-54; see also Wells v. State, 839 N.W.2d 775, 781 (Minn. App. 2013), rev. denied
(Minn. Feb. 18, 2014) (stating that a court need not depart even if the district court finds
the existence of one or more Trog factors).
In sum, because the record reflects that the district court carefully considered the
testimony and information presented at the sentencing hearing before making its decision,
the district court did not abuse its discretion by denying Powell’s motion for a downward
dispositional departure. Johnson, 831 N.W.2d at 925. This is not the “rare” case requiring
reversal. See Soto, 855 N.W.2d at 305.
Affirmed.