A23-1716 A23-1717

This opinion is nonprecedential except as provided by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
A23-1714
A23-1716
A23-1717

State of Minnesota,
Appellant,

vs.

Brian Lee Emerson,
Respondent.

Filed July 8, 2024
Affirmed
Larson, Judge
Dissenting
Connolly, Judge

Isanti County District Court
File Nos. 30-CR-23-141; 30-CR-22-122; 30-CR-22-31

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

Jeffrey R. Edblad, Isanti County At torney, Nicholas J. Colombo, Assistant County
Attorney, Cambridge, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
respondent)

Considered and decided by Connolly, Presiding Judge; Gaïtas, Judge; and Larson,
Judge.

2
NONPRECEDENTIAL OPINION
LARSON, Judge
Appellant State of Minnesota appeals the district court’s decision to grant
respondent Brian Lee Emerson’s1 motion for a downward dispositional departure. Because
we conclude the district court did not abuse its discretion when it stayed Emerson’s
sentences and placed him on probation, we affirm.
FACTS
In three separate cases, the state charged Emerson with six counts of check forgery,
one count of financial-transaction card fraud, one count of identity theft, fifteen counts of
mail theft, two counts of fifth-degree drug possession, and one count of possession of more
than 1.4 grams of marijuana in a motor vehicle. Pursuant to a global plea agreement,
Emerson pleaded guilty to three counts of check forgery under Minn. Stat. § 609.631,
subd. 3 (2020), three counts of check forgery under Minn. Stat. § 609.631, subd. 2(2)
(2020), one count of financial-transaction card fraud under Minn. Stat. § 609.821,
subd. 2(1) (2020), one count of identity theft under Minn. Stat. § 609.527, subd. 2 (2020),
and one count of fifth- degree possession under Minn. Stat. § 152.025, subd. 2(1) (2022).
The state dismissed the remaining charges. The plea agreement left open the possibility
that Emerson could request a downward departure during sentencing.
Prior to sentencing, a presentence investigation report (PSI) was prepared for each
case. The PSIs recommended the district court impose presumptive middle-of- the-box,

1 Emerson did not file a brief in this appeal. Pursuant to Minn. R. Civ. App. P. 142.03, we
will determine the case on its merits.
3
executed prison terms for each count. Emerson filed a written motion for a downward
dispositional departure in each case, asking the district court to stay the presumptive
executed prison terms and impose probation.
At the sentencing hearing, the state argued the district court should follow the PSIs’
recommendations and impose executed prison terms. According to the state, no mitigating
factors justified a downward dispositional departure. The state argued Emerson’s criminal
history and history on probation both demonstrated that he was not particularly amenable
to probation. The state observed that a PSI prepared in 2020 for a prior case described how
Emerson claimed to have made significant positive changes in his life, but still opined that
Emerson was unlikely to succeed on probation. The state noted that, since the 2020 PSI,
Emerson had been charged with a number of different crimes, including the felonies at
issue during the sentencing hearing. The state further argued that Emerson qualified as a
career criminal, and the sole reason the state did not pursue career-criminal sentences was
that the state agreed not to as a term of the plea agreement. Regarding Emerson’s past
performance on probation, the state observed that Emerson had 14 probation-violation
warrants issued against him and 18 warrants for failing to appear. The state argued that
Emerson had demonstrated that he was not particularly amenable to probation, and
therefore asked the district court to impose the presumptive executed sentences.
In arguing for the departure at the hearing, Emerson emphasized that he had family
support and had taken positive steps that indicated he was likely to achieve rehabilitation
on probation. Emerson highlighted how, while in custody, he had voluntarily attended
Narcotics Anonymous meetings, saw a mental -health therapist regularly, took medication
4
to treat his depression, arranged for chemical-dependency treatment that could commence
when he was released from custody, and had a union job that could begin when his
treatment program allowed. He also pointed the court to the letters of support he filed with
his motions for a downward dispositional departure. One letter, written by Emerson’s
girlfriend, described Emerson’s desire to change his life, and his family’s desire to support
him in making that change. Another letter, from Emerson’s Narcotics Anonymous
facilitator, discussed Emerson’s weekly engagement with the support group, and
Emerson’s desire to leave drugs and jail behind for the sake of his children. In sum,
Emerson asked for a last chance to continue the positive steps he had already taken and
argued that it would be best for everyone if he were allowed to seek treatment and pursue
recovery while on probation, rather than in custody. Emerson personally expressed that he
was “willing to accept [his] punishment with [his] head held high,” “sorry for [his]
wrongdoings,” and “very embarrassed for what [he] ha[d] done.” Emerson also
acknowledged that he is “the only one that can change [his] life,” and said he “will do
anything possible for another chance to prove . . . to the Courts, [his] family, and [him]self,
that [he was] willing to use the help offered to [him] through [his] support group and
treatment.”
The district court proceeded with an on-the-record analysis of the Trog factors to
determine whether it should grant Emerson’s motion. See State v. Trog, 323 N.W.2d 28,
31 (Minn. 1982). The district court determined Emerson’s age weighed slightly in favor
of probation because, at 38 years old, he was “old enough to know better,” but at the same
time, was at a life-stage where people often “turn things around.” The district court found
5
that Emerson’s extensive criminal history “weighs entirely against granting a departure.”
Regarding remorse, the district court observed that the PSI did not indicate Emerson
expressed remorse, and that, even in the courtroom, Emerson did not appear to express
remorse for how he affected his victims. Yet, the district court found that Emerson
“clearly” felt remorse for how his actions impacted “his immediate circle,” and “there’s
remorse expressed sincerely here today and in the [PSI] for the actions committed.”
Therefore, the district court determined that Emerson’s remorse weighed slightly in favor
of probation. The district court said that cooperation “cuts in both directions.” According
to the district court, Emerson’s cooperation as it pertained to conditional release had been
“[a]wful,” but his more recent cooperation with “assessments, [PSIs], [and] with his
attorney” favored probation. Finally, the district court determined that the support of his
family weighed in Emerson’s favor because “[h]e is connected to and receives support
from folks committed to wanting him to do better.” Additionally, the district court
considered “the amount of time that [Emerson] would spend in prison as compared to the
amount of time he would spend in county jail and under the supervision of probation,” as
well as Emerson’s difficult childhood.
“[T]aking those factors all together,” the district court granted Emerson’s motion
for a downward dispositional departure, determining “that a lengthy local jail sentence and
a stayed prison sentence is most protective of the public safety and Mr. Emerson’s safety.”
The district court sentenced Emerson to stayed, concurrent 25-month and 28-month prison
terms, placed Emerson on probation for five years, and required him to serve 270 days in
the local county jail.
6
The state appeals.
DECISION
On appeal, the state argues the district court abused its discretion when it granted
Emerson’s motion for a downward dispositional departure. “We review a district court’s
decision to depart from the presumptive guidelines sentence for an abuse of discretion.”
State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016). “[A] sentencing court can exercise
its discretion to depart from the guidelines 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 and citations omitted). A district court abuses its discretion if “its reasons for
departure are legally impermissible” or “insufficient evidence in the record justifies the
departure.” Solberg, 882 N.W.2d at 623.
“[W]hen justifying . . . a dispositional departure, the [district] court can focus more
on the defendant as an individual and on whether the presumptive sentence would be best
for him and for society.” State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983) (emphasis
omitted). The Minnesota Sentencing Guidelines provide:
The following is a nonexclusive list of factors that may be used as reasons
for departure:

a. Mitigating Factors.
(1) The victim was an aggressor in the incident.
(2) The offender played a minor or passive role in
the crime or participated under circumstances of
coercion or duress.
7
(3) The offender, because of physical or mental
impairment, lacked substantial capacity for
judgment when the offense was committed. The
voluntary use of intoxicants (drugs or alcohol)
does not fall within the purview of this factor.
(4) The offender’s presumptive sentence is a
commitment but not a mandatory minimum
sentence, and either of the following exist:
(a) The current conviction offense is at
Severity Level 1 or Severity Level 2 and
the offender received all of his or her prior
felony sentences during fewer than three
separate court appearances; or
(b) The current conviction offense is at
Severity Level 3 or Severity Level 4 and
the offender received all of his or her prior
felony sentences during one court
appearance.
(5) Other substantial grounds exist that tend to
excuse or mitigate the offender’s culpability,
although not amounting to a defense.
(6) The court is ordering an alternative place ment
under Minn. Stat. § 609.1055 for an offender
with a serious and persistent mental illness.
(7) The offender is particularly amenable to
probation. This factor may, but need not, be
supported by the fact that the offender is
particularly amenable to a relevant program of
individualized treatment in a probationary
setting.
(8) In the case of a controlled substance offense
conviction, the offender is found by the district
court to be particularly amenable to probation
based on adequate evidence that the offender is
8
chemically dependent and has been accepted by,
and can respond to, a treatment program in
accordance with Minn. Stat. § 152.152.
(9) In the case of a qualifying United States military
service member or veteran, the offender is found
by the district court to meet the criteria for
particular amenability to probation found in
Minn. Stat. § 609.1056, subd. 4.

Minn. Sent’g Guidelines 2.D.3 (Supp. 2021) (emphasis added).
2 When evaluating a
defendant’s amenability to probation, district courts typically consider the Trog factors:
“the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in
court, and the support of friends and/or family.” 323 N.W.2d at 31; see also Soto, 855
N.W.2d at 310-12 (reviewing district court’s application of Trog factors in context of
particular amenability to probation). But, as highlighted above, amenability to probation
is just one of many mitigating factors the district court may consider when deciding
whether to grant a downward dispositional departure. See Heywood, 338 N.W.2d at 244;
State v. Stempfly, 900 N.W.2d 412, 413, 419 (Minn. 2017) (affirming downward
dispositional departure based on respondent’s “minor or passive role” in the crime).
The state first argues the district court abus ed its discretion because it failed to
specifically find that Emerson was particularly amenable to probation. We agree with the
state that the district court did not make this specific finding, but we disagree that the
absence of the finding amounts to an abuse of discretion. On this point, our

2 The mitigating-factors provision remained the same in the 2022 sentencing guidelines,
which govern Emerson’s fifth-degree-possession offense. See Minn. Sent’g Guidelines
2.D.3 (2022).
9
nonprecedential opinions in State v. Adams, No. A23-0408, 2023 WL 5525080 (Minn.
App. Aug. 28, 2023), and State v. Wetzel, No. A19-0091, 2019 WL 4409410 (Minn. App.
Sept. 16, 2019), are persuasive.3
In Adams, we concluded that the district court’s failure to find the defendant
particularly amenable to probation when granting a downward dispositional departure was
not reversible error for two reasons. 2023 WL 5525080, at *3-4. First, we concluded that
the Trog factors can be relevant to evaluating whether to grant a motion for a downward
dispositional departure, even if the dispositional departure is not based on the defendant’s
particular amenability to probation. Id. at *4. We observed that the open-ended nature of
the “nonexclusive list of mitigating circumstances” means that the district court may
consider the Trog factors generally to determine whether “identifiable, substantial, and
compelling circumstances . . . support a departure.” Id. (quotations omitted). Second, we
noted that the district court did not rely exclusively on the Trog factors to reach its decision
because it “relied on other offender-related factors not listed in Trog.” Id.
We came to a similar conclusion in Wetzel. See 2019 WL 4409410, at *3-4. There,
the district court never explicitly found that Wetzel was particularly amenable to probation,
despite its focus on several Trog factors as justification for granting a downward
dispositional departure. Id. at *3. However, we concluded that the lack of an explicit
finding was “not fatal to the departure because particular amenability to probation is just
one of several factors on a non-exclusive list that can justify a downward dispositional

3 We recognize that these opinions are nonprecedential and, therefore, not binding. See
Minn. R. Civ. App. P. 136.01, subd. 1(c).
10
departure. The true inquiry is whether there exist identifiable, substantial, and compelling
circumstances to justify the departure.” Id. (quotation omitted).
Similarly here, the district court did not find Emerson particularly amenable to
probation, and it was not required to do so. The district court based its decision to depart
on what was “most protective of the public safety and Mr. Emerson’s safety,” rather than
Emerson’s particular amenability to probation. To reach that conclusion, the district court
evaluated the Trog factors, which is allowable given the open-ended nature of the
sentencing guidelines’ list of mitigating circumstances. Thus, as in Adams and Wetzel, the
district court did not abuse its discretion when it applied the Trog factors to evaluate
whether “a substantial and compelling reason” existed to not “impose a guidelines
sentence.” See Soto, 855 N.W.2d at 308 (quotation omitted).
The state disagrees with our prior application of the Trog factors in Adams and
Wetzel and, instead, argues that Soto controls the outcome of this case. But in Soto the
supreme court evaluated the district court’s application of the Trog factors only as they
related to particular amenability to probation. 855 N.W.2d at 307. The supreme court
concluded that the record did not support the district court’s finding that the defendant was
particularly amenable to probation and reversed the district court’s decision to depart from
the sentencing guidelines on that basis. Id. at 314-15. Here, the district court did not base
its decision on Emerson’s particular amenability to probation. Instead, the district court
based its decision on its finding that staying Emerson’s prison terms and imposing
probation and jail time was more protective of the public safety and Emerson’s safety.
11
Thus, the requirement from Soto that a defendant be particularly amenable to probation
does not apply here.
The state next argues that, even if the district court did not need to find Emerson
particularly amenable to probation, it abused its discretion because it failed to find
substantial and compelling reasons to depart after applying the Trog factors. We are not
persuaded.
We are “extremely deferential” to a district court’s decision whether to impose a
departure, Dillon v. State, 781 N.W.2d 588, 595-96 (Minn. App. 2010), rev. denied (Minn.
July 20, 2010), and we “cannot simply substitute our judgment for that of the [district]
court,” State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999); see also State v. Case, 350 N.W.2d
473, 476 (Minn. App. 1984) (explaining that appellate courts “are loath to interfere” with
district court’s dispositional departure from sentencing guidelines). “[A]s long as the
record shows the sentencing court carefully evaluated all the testimony and information
presented before making a determination,” we do not interfere with the district court’ s
decision. State v. Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted).
Here, the record shows the district court evaluated all the relevant information and,
in its discretion, determined substantial and compelling reasons existed not to impose a
guidelines sentence. The district court conducted a thorough evaluation of the Trog factors,
including findings regarding Emerson’s age, extensive criminal history, history of
conditional-release and probationary violations, remorse, and family support. Most
importantly, though, the district court determined that staying Emerson’s prison terms and
imposing probation was more protective of the public safety and Emerson’s safety. See
12
Soto, 855 N.W.2d at 312 (“[W]e have repeatedly suggested that [public safety] can be
relevant to determining whether a decision to stay a presumptively executed sentence was
an abuse of discretion.”); Trog, 323 N.W.2d at 31 (endorsing the district court’s
consideration of “the chance that [the] defendant will mend his ways and that society’s
interests will be safeguarded [best] if the probationary treatment approach is followed”
(quotation omitted)). In this case, the district court specifically weighed “the amount of
time that [Emerson] would spend in prison as compared to the amount of time he would
spend in county jail and under the supervision of probation.” In its discretion, the district
court determined that placing Emerson on probation for five years and imposing jail time
was more protective of the public safety than executing concurrent 25- and 28-month
prison terms.
The district court’s consideration of public safety and Emerson’s safety are legally
permissible bases for granting a dispositional departure. Heywood, 338 N.W.2d at 244
(allowing district court when granting dispositional departures to focus on what “would be
best for [the defendant] and for society”); Soto, 855 N.W.2d at 312 (endorsing public safety
as relevant determination when evaluating whether to grant dispositional departure); Trog,
323 N.W.2d at 31 (endorsing society’s interests as relevant determination when evaluating
dispositional departure). And the record supports the district court’s determination that
keeping Emerson under state supervision for a longer time period was more protective of
public safety. Therefore, we conclude the district court did not abuse its discretion.
Affirmed.

D-1

CONNOLLY, Judge (dissenting)
I respectfully dissent. I would reverse the district court’s decision granting
respondent a downward dispositional departure because the record does not support the
decision. Instead, the record directly contradicts the district court’s decision because there
are no substantial and compelling reasons not to impose a guidelines sentence. See Minn.
Sent’g Guidelines 2.D.1 (2022). Moreover, the district court did not find that respondent
was particularly amenable to probation as required by State v. Soto, 855 N.W.2d 303, 309
(Minn. 2014). This deficiency in and of itself mandates reversal.
The record indicates the following: On January 13, 2022, a complaint was filed in
court file number 30 -CR-22-31, charging respondent with three counts of check forgery
under Minn. Stat. § 609.631, subd. 3 (2020), and one count of financial transaction card
fraud in violation of Minn. Stat. § 609.821, subd. 2(1) (2020). On February 9, 2022, a
complaint was filed in court file number 30- CR-22-122, charging respondent with three
counts of check forgery under Minn. Stat. § 609.631, subd. 2(2) (2020), one count of
identity theft in violation of Minn. Stat. § 609.527, subd. 2 (2020), one count of fifth-degree
drug possession under Minn. Stat. § 152.025, subd. 2(1) (2020), 15 counts of mail theft in
violation of Minn. Stat. § 609.529, subd. 2(6) (2020), and one count of misdemeanor
possession of marijuana in a motor vehicle under Minn. Stat. § 152.027, subd. 3 (2020).
And on March 3, 2023, a complaint was filed in court number 30-CR -23-141, charging
respondent with one count of felony fifth-degree drug possession in violation of Minn. Stat.
§ 152.025, subd. 2(1) (2022).

D-2

Respondent eventually pleaded guilty to the following counts as part of a plea
agreement with appellant: In file number 30-CR-22-31, three counts of felony check
forgery and one count of felony financial transaction card fraud; in file number 30-CR-22-
122, three counts of felony check forgery and one count of identity theft; and in file number
30-CR-23-141, one count of felony fifth-degree possession of a controlled substance.
Respondent committed all of these crimes while he was on probation for a felony.
The district court granted respondent’s motion for a downward dispositional
departure and imposed concurrent sentences of 25 months in prison for the first two counts
in file number 30-CR -22-31, and 28 months in prison for the remaining counts. But the
district court stayed execution of the sentences for five years, and placed respondent on
probation. The district court also ordered respondent to spend 270 days in jail, with credit
for 133 days served.
Below is the entire transcript from respondent’s sentencing:
All right. Mr. – well, let’s do it this way folks, I’m going to
go through the Trog factors. A motion has been made for a
downward departure and the Court is required to consider the
Trog factors when considering such a motion.

The first of those is age, and it cuts exactly in the same
ways that both counsel have identified. I think that
[respondent] is not as young as he once was when these other
offenses were committed. He’s old enough to know better. But
he is also at a point in his life where the Court often does see
folks turn things around, as well. That factor weighs slightly
in [respondent’s] favor.

His record weighs entirely against granting a
departure. He has, without cease, committed crime after crime
with little thought for their impact on anyone other than
himself.

D-3

His current state of remorse, that factor weighs against
a departure. The remorse piece, likewise, cuts in two different
directions. First, um, as described by [the prosecutor], I think
accurately, there’s an absence in the presentence materials of
a sense of remorse, and even here today, of the understanding
or expanding the circle of remorse to include the people who
are affected by the crimes that he’s committed. You know,
when a person has their numbers taken, their name taken, and
they have to spend good chunks of their day dealing with banks
and companies and, and things because someone has stolen
their stuff. I don’t really get the sense that the remorse was
truly taking that entire circle into account.

But there is, there is remorse clearly by [respondent]
for his immediate circle, those most immediately impacted by
his actions. There’s also some concern in the presentence –
and it’s, there’s remorse expressed sincerely here today and in
the presentence investigation for the actions committed. But
there’s also, even on the part of the, part of the downward
dispositional advisor, to lay some blame with the mother of
[respondent’s] children. Now, the fact that a person was
engaged in a toxic relationship certainly is not – it is a
challenge, but it was – it’s not the kind of remorse that the
Court would expect to see in a true change of heart.

That being said, the remorse factor, given what’s been
said today and the frame of mind that [respondent] is in here
today, weighs just slightly in his favor.

The factor related to cooperation, good and bad, bad and
good. Awful as to conditional release. Recently as to
assessments, presentence investigation, with his attorney, that
factor cuts in both directions.

The support of family factor weighs in favor of
[respondent]. He is connected to and receives support from
folks committed to wanting him to do better. I think [the
prosecutor] is right, that has not been sufficiently protective in
the past to, um, prevent the kind of, I’ll call it, crime spree in
which [respondent] historically has engaged. But that’s a
factor under the Trog analysis that weighs in his favor.

D-4

I think taking those factors all together, and weighing
the amount of time that he would spend in prison as compared
to the amount of time he would spend in county jail and under
the supervision of probation, the factors overall, and taking
into account that as a very, very young child, that selfishness
that he has picked up and is part of his background, evident in
his history, that he needs to address if he expects to not repeat
it, was taught to him very early on by those who should have
taken care of him better.

So taking all of that into account, the Court finds that a
lengthy local jail sentence and a stayed prison sentence is most
protective of the public safety and [respondent’s] safety. This
will be a downward departure based on that information.

(Emphasis added.)
The district court never stated that the respondent was particularly amenable to
probation as required by our supreme court. Indeed, prior to his current crime spree,
respondent had been convicted of 11 felonies and seven gross misdemeanors stretching
back to 2013. And he committed the offenses in this case while on felony probation.
Further, the presentence investigation (PSI) indicated that he fell into the very high-risk
area with a level of 32 on the Level of Severe Case Management Inventory. Accordingly,
the PSI recommended that respondent be sent to prison.
None of the reasons articulated by the district court provide a basis for a downward
departure because they are not supported by the record. See State v. Dentz, 919 N.W.2d
97, 103 (Minn. App. 2018) (reversing and remanding for resentencing because “the district
court relied on an improper reason for granting a downward durational departure”). Our
supreme court has stated that several factors can be relevant to determining if a defendant
is particularly amenable to probation, including “the defendant’s age, his prior record, his

D-5

remorse, his cooperation, his attitude while in court and the support of friends and/or
family.” Soto, 855 N.W.2d at 310.
In Soto, the defendant was 37 years old. Id. The factor of age is generally neutral
with regard to particular amenability. See id. Here, the district court mentioned
respondent’s age, but only stated that he is old enough to know better and is at a point in
his life at which the court often does see people turn things around. But rather than turning
things “around,” the record shows that respondent continues to commit crimes, and there
is nothing to support the idea that he has changed. Also, the issue is not whether other
defendants are at an age when they turn things around, but whether the record indicates
that this defendant is at an age when he will change. This is why a downward dispositional
departure depends on whether a defendant is particularly amenable to probation. For that
reason, “[t]he factors [justifying departures] are intended to describe specific situations
involving a small number of cases. The Commission rejects factors that are general in
nature, and that could apply to a large number of cases . . . .” Minn. Sent’g Guidelines cmt.
2.D.301 (2022).
The district court correctly noted that respondent’s prior “record weighs entirely
against granting a departure.” The district court then discussed the factor of remorse. First,
the district court stated that the factor cuts against departure and specifically noted that
there is an absence of a sense of remorse and “even here today of the understanding or
expanding the circle of remorse to include the people who are affected by the crimes that
he’s committed.” But then, inexplicably, the district court stated that he showed remorse
only for his immediate circle and not for any of his victims. But even then, the district

D-6

court stated that he lays the blame with the mother of his children. Thus, the record d oes
not support this factor as a reason for a departure. He is not remorseful.
Next, the district court discussed “cooperation.” The district court noted that
respondent was “awful as to conditional release.” Indeed, the record indicates that he
violated his current conditional release terms and had 14 probation violations and 18
warrants for failing to appear. The district court said this factor “cuts in both directions.”
The record belies this finding. It cuts in only one direction, and that is against a departure.
Next, the district court noted that respondent has the support of family members and
that this factor supports a departure. The only thing in the record to support this finding is
that family members were in the courtroom at sentencing. That is insufficient and is unlike
the nonprecedential and nonbinding case of State v. Wetzel, in which a 19-year-old, with
no prior criminal record, pleaded guilty to burglarizing his grandparents’ garage. No. A19-
0091, 2019 WL 4409410, at *1 (Minn. App. Sept. 16, 2019). In that case, the defendant’s
grandparents, who were the victims of the crime, supported a downward dispositional
departure, and indeed the defendant was moving to another state to be with his mother and
stepfather where he was able to work two jobs, attend a sober support group, receive
mental-health counseling, and submit to drug testing at his parents’ request. Id. at *1-2.
That is the type of family support necessary to support a departure based on family support.
That support is absent here and explains why Wetzel, does not support the district court’s
decision.
Merely having a family member present in a courtroom is insufficient to show
family support. If it was sufficient, then simply having a family member present in a

D-7

courtroom for sentencing would always be grounds for dispositional departure. Therefore,
the record does not support this factor as a ground for departure.
The case of State v. Adams, No. A23- 0408, 2023 WL 5525080 (Minn. App. Aug.
28, 2023), another nonprecedential and nonbinding case, is also easily distinguishable and
does not support the district court’s decision to depart. In that case, the defendant was
charged solely with the crime of failure to register as a predatory offender in 2022. Adams,
2023 WL 5525080, at *1. The district court found that he committed his initial crime when
he was very young, and that the majority of his criminal-history points stemmed from “a
multi-count complaint in 2007.” Id. at *1-2. The defendant also had been recently evicted
and did not have a phone. Id. at *1. And unlike this case, the defendant seemed genuinely
remorseful. Id. at *2. In short, Wetzel and Adams are neither binding nor persuasive. See
Minn. R. Civ. App. P. 136.01, subd. 1(c) (stating that non precedential opinions are not
binding authority but may be persuasive authority).
Finally, the district court stated that “a lengthy, local jail sentence and a stayed
prison sentence is most protective of public safety.” But, based on the record, it is illogical
to say that allowing respondent to be at liberty is more protective of public safety than
imprisoning him. And the district court’s statement is also not supported by the record.
The defendant was ordered to serve 270 days in jail. However, considering that one-third
of the sentence is credited for good time, and respondent was also to receive credit for 133
days, he would only be serving 47 days in jail. This is not a “lengthy sentence.” Moreover,
respondent has received numerous stayed sentences and been placed on probation more

D-8

than a dozen times. He is not rehabilitated. He continues to commit new crimes and, as
already stated, he committed the offenses in this case while he was on felony probation.
In conclusion, the sentence of a downward dispositional departure, and the grounds
that the district court relied on for that departure, are not supported by the record.
Respondent is not “particularly” amenable to probation. He is not amenable to probation
at all.
Accordingly, I must dissent. I would reverse the district court’s sentence and
remand to the district court for the imposition of a guidelines presumptive prison sentence.