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This opinion is nonprecedential except as provided by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
A23-1836

State of Minnesota,
Respondent,

vs.

Hunter Steven Hipp,
Appellant.

Filed September 16, 2024
Affirmed
Ross, Judge

Benton County District Court
File No. 05-CR-22-657

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

Kathleen L. Reuter, Benton County Attorney, Foley, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Max B. Kittel, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Ede, Judge; and Schmidt, Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
Hunter Hipp pleaded guilty to first -degree arson after intentionally setting fires in
the kitchen and living room of his apartment. He notified the district court in writing of his
intent to move “for a dispositional and/or durational departure from the presumptive
sentence,” and at sentencing he argued exclusively that he was particularly amenable to
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probation. The district court denied his departure motion. Hipp argues on appeal that the
district court misconstrued his criminal record as applied to his dispositional-departure
request and that it erroneously failed to decide his supposed durational-departure request.
Although the district court misinterpreted the law when it assessed Hipp’s criminal history
for sentencing, the mistake did not affect the court’s decision not to depart dispositionally
because it found that Hipp’s failure to appreciate and address his mental-health issues
precluded a finding that he is amenable to probation. And after Hipp’s notice to the district
court that he would move “for a dispositional and/or durational departure,” his eventual
arguments in support of his motion focused only on the factors bearing on a dispositional
departure. The district court therefore acted within its discretion by addressing only the
dispositional-departure request and imposing the presumptive sentence. We affirm.
FACTS
In April 2022, then 19-year-old Hunter Hipp decided he needed to spend time in jail
to effect a major change in his life and deal with his mental-health challenges. And to
secure a trip to jail, Hipp turned on his apartment stove and put cardboard boxes on the
burner. He piled clothes and furniture in his living room and transferred the stove fire to
the pile. Then he dialed 9-1-1 and pounded on the doors of other units in the building to
alert them to get out to safety. Police and firefighters arrived and doused the fire. Hipp told
police that he started the fire, disclosing that he “wanted to be arrested, so [he] thought
arson [was] the best thing to do.”
The state charged Hipp with, and Hipp pleaded guilty to, first-degree arson in
violation of Minnesota Statutes section 609.561, subdivision 1 (2020). He notified the
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district court that he intended to move for a “dispositional and/or durational departure”
from his presumptive prison sentence. At the sentencing hearing, Hipp’s attorney argued
for a departure based only on the Trog factors as applied to a dispositional departure. He
argued that Hipp’s age, remorse, social support, and criminal history all showed that Hipp
is particularly amenable to probation. The attorney also observed that Hipp set fire to his
apartment specifically to become jailed, not to commit insurance fraud or harm anyone.
The district court addressed the Trog factors as they relate to Hipp’s alleged
particular amenability to probation. It denied Hipp’s downward- departure motion and
imposed the 48-month presumptive prison sentence designated by the guidelines. In doing
so, the district court reasoned that Hipp had failed to address his mental-health issues while
he was incarcerated following his arrest and in the period immediately following his release
on bail. The district court emphasized too that Hipp had told the presentence-investigation
agent that he had lacked the support of friends and family. The district court stated also
that Hipp’s criminal history “is, of course, already reflected in our sentencing guidelines.”
Hipp appeals the district court’s sentencing decision.
DECISION
Hipp challenges his sentence in two ways. He contends first that the district court
should have granted his dispositional-departure request and second that it should not have
failed to rule on his alleged durational-departure request. Neither contention succeeds.
The district court enjoys broad discretion to make sentencing decisions, and we will
not reverse those decisions absent an abuse of that discretion. State v. Soto, 855 N.W.2d
303, 307–08 (Minn. 2014). We will affirm the district court’s imposition of the
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presumptive sentence when the record shows that it “carefully evaluated all the testimony
and information presented before making a determination.” State v. Johnson, 831 N.W.2d
917, 925 (Minn. App. 2013) (quotation omitted), rev. denied (Minn. Sept. 17, 2013). A
district court may, however, depart from the presumptive sentence under the guidelines
when “identifiable, substantial, and compelling circumstances” justify a departure. Minn.
Sent’g Guidelines 2.D (2020); State v. Pegel, 795 N.W.2d 251, 253 (Minn. App. 2011).
We address Hipp’s challenge under this standard.
Hipp offers a two- pronged attack on the district court’s decision to deny his
dispositional-departure request. He argues first that the district court misinterpreted the law
regarding his criminal history, and he argues second that the district court erroneously
found that no substantial and compelling circumstances warranted departing from
imposing a prison term.
We address both theories together. W e agree that the district court misinterpreted
the law concerning his record. Hipp raised, and the district court correctly focused on,
Hipp’s personal characteristics, because dispositional departures focus on whether the
defendant’s characteristics make him “particularly suitable for individualized treatment in
a probationary setting.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (quotation
omitted). Focus on these factors is therefore appropriate, and they include “the defendant’s
age, his prior record, his remorse, his cooperation, his attitude while in court, and the
support of friends . . . or family.” Soto, 855 N.W.2d at 310 (quotation omitted). Hipp is
correct that the district court erroneously refused to consider Hipp’s clean criminal record
based on the district court’s understanding that it is “already reflected in our sentencing
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guidelines.” This is not so, as the supreme court has “specifically endorsed referring to a
defendant’s criminal history” when determining whether he is particularly amenable to
probation. Id. at 311 (citing State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982)). The district
court’s incorrect understanding of the law does not, however, lead us to reverse its
sentencing decision for the following reasons.
We will not reverse a sentencing decision based on an error that did not affect the
decision. See Minn. R. Crim. P. 31.01 (stating that errors not affecting substantial rights
are harmless). The record informs us that the district court would not have departed
dispositionally in any event because particular amenability to probation is the only factor
Hipp asserted to justify a dispositional departure, and the district court identified a
circumstance that precluded it from departing. The district court indicated that it would
decline to depart because of Hipp’s failure to address his mental-health issues while he was
jailed and after his release on bail. The district court was concerned that Hipp had neither
appreciated nor taken steps to address his mental-health issues. Specifically, the district
court reasoned implicitly that these failures meant that Hipp is not particularly amenable
to probation. Because “a defendant’s clean record does not by itself justify mitigation of a
sentence,” Soto, 855 N.W.2d at 310, and because the district court carefully considered but
was not persuaded by the other circumstances that Hipp highlighted, we reject Hipp’s
contention that the district court’s finding that Hipp is not particularly amenable to
probation is contrary to logic and the evidence. We therefore hold that the district court did
not abuse its discretion by refusing to depart dispositionally from the guidelines sentence.
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We are especially unpersuaded by Hipp’s contention that the district court abused
its discretion by failing to rule on his request for a durational departure. Substantial and
compelling circumstances support a downward durational departure when the defendant’s
conduct in committing the crime was significantly less serious than typically involved in
the commission of that crime. State v. Abrahamson, 758 N.W.2d 332, 337–38 (Minn. App.
2008), rev. denied (Minn. Mar. 31, 2009). Durational departures are therefore based on
factors bearing on the seriousness of the offense and not the characteristics of the offender.
Solberg, 882 N.W.2d at 623–24. But Hipp’s argument at the sentencing hearing focused
on offender characteristics that might support a dispositional departure, not offense
circumstances that might support a durational departure. We acknowledge that Hipp’s
counsel began his remarks at the hearing by noting, “There is a motion for dispositional
and durational” departures. But although he previously stated that he would argue for a
dispositional departure “and/or” a durational departure, the argument that followed
indicated that Hipp had decided to pursue only the “or” and not the “and” option—relying
only on the chance of a dispositional departure. During the hearing, Hipp’s counsel never
mentioned the standard for a durational departure (significantly less serious than the typical
offense), let alone argued that the circumstances met that standard. Hipp’s counsel argued
exclusively why the Trog factors support a probationary sentence. The only statement that
suggests a reference to the offense itself was that Hipp did not try to recover insurance
proceeds or intend to “harm people.” But Hipp’s counsel immediately tied that argument
back to the Trog factors and a dispositional departure, stating, “[T]he dispositional
departure rate regarding this is unusually high. . . . I can’t believe that those situations have
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all of the factors here, all of the Trog factors combined with such mitigating situations for
such a serious crime.” And counsel for Hipp concluded by requesting that the district court
“order [a] probationary sentence” with no mention of a lighter executed sentence. The
prosecutor concluded likewise, arguing that the district court should grant no dispositional
departure. It is obvious that the district court ignored Hipp’s fleeting references to a
durational departure because he never presented a cogent argument for a durational
departure. We see no abuse of discretion.
Affirmed.