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This opinion is nonprecedential except as provided by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
A24-0895

State of Minnesota,
Respondent,

vs.

Win Naing Aung,
Appellant.

Filed June 30, 2025
Affirmed
Kirk, Judge*

Ramsey County District Court
File No. 62-CR-23-2600

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Rebecca Ireland, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larson, Presiding Judge; Bentley , Judge; and Kirk ,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
KIRK, Judge
Appellant challenges his 60 -month prison sentence, arguing that the district court
abused its discretion when it denied his downward dispositional and durational departure
motions. We affirm.
FACTS
On May 9, 2023, respondent State of Minnesota charged appellant Win Naing Aung
with one count of unlawful possession of a firearm. Aung entered into a Norgaard plea.1
He moved for a downward dispositional departure, or alternatively, a downward durational
departure.
The district court denied both motions and sentenced Aung to the presumptive term
of 60 months’ imprisonment. In denying the dispositional departure motion, the district
court noted the struggles that Aung has experienced . I t also emphasized that, while on
conditional release, Aung did not remain law abiding or report to the supervisory agency
Justice Point as required. The district court stated that Aung has had “a number of
opportunities on probation supervision in the community,” that he has not attempted to
remain in contact with probation or the pretrial supervision agency, and that Aung’s history
indicates an “unwillingness to comply” with probation supervision conditions. In denying

1 A Norgaard plea allows a defendant to “plead guilty even though he or she claims a loss
of memory, through amnesia or intoxication, regarding the circumstances of the offense.”
State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994); see State ex rel. Norgaard v. Tahash,
110 N.W.2d 867, 870, 871 (Minn. 1961) (ruling that, “under the facts and circumstances,”
the district court did not err by accepting petitioner’s guilty plea even though petitioner
“had no recollection of what took place on the night in question”).
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the durational departure motion, the district court expressed concern that Aung was
“significantly impaired by drug use while carrying a weapon,” that the “weapon was stolen
from a vehicle,” and that the weapon was “loaded at the time that [Aung was] in an
overdose in the public.” Aung appeals.
DECISION
The Minnesota Sentencing Guidelines establish presumptive sentences for criminal
offenses to “maintain uniformity, proportionality, rationality, and predictability in
sentencing.” Minn. Stat. § 244.09, subd. 5 (2022). A district court must pronounce the
presumptive sentence “unless there exist identifiable, substantial, and compelling
circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1 (2022). If such
circumstances exist, the district court has broad discretion in its decision whether to depart.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
“A reviewing court may not interfere with the sentencing court’s exercise of
discretion, as long as the record shows the sentencing court carefully evaluated all the
testimony and information presented before making a determination.” State v. Pegel, 795
N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted). Only a “rare” case warrant s
reversal of the refusal to depart from the presumptive sentence. Kindem, 313 N.W.2d at 7.
I.
When considering whether to grant a dispositional departure, the district court
focuses “more on the defendant as an individual and on whether the presumptive sentence
would be best for him and society.” State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).
A defendant’s particular amenability to probation justifies a downward dispositional
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departure. State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). “Numerous factors, including
the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in
court, and the support of friends and/or family, are relevant ” to a particular-amenability
determination. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Even if there is evidence
that the defendant would be particularly amenable to probation, a district court is not
required to grant a dispositional departure. State v. Olson, 765 N.W.2d 662, 664-65 (Minn.
App. 2009).
The district court did not abuse its broad discretion by denying Aung’s request for
a dispositional departure. The district court considered documents from the dispositional
advisor, arguments from Aung’s attorney, the presentence investigation ( PSI), and the
Justice Point reports. It considered Aung’s cooperation, noting that Aung did not comply
with his conditional release order or remain law abiding. The district court noted that it
did not see that Aung had made an effort to maintain contact with probation or the pretrial
supervision agency. Because the record demonstrates that the district court “carefully
evaluated all the testimony and information presented before making a determination,” this
court may not interfere with the district court’s sentencing determination. Pegel , 795
N.W.2d at 255 (quotation omitted).
Aung asserts that the district court found, without record support, that Aung had
“many prior ‘opportunities’ on probation to address his needs.” Aung claims that there is
little information in the record about prior treatments, and “the limited information in the
PSI certainly does not permit the conclusion that Aung ever received appropriate medical
care for any of his conditions.” However, the district court’s statement that Aung had “a
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number of opportunities to be stabilized through the support of probation supervision” does
not suggest that Aung received medical care. The record indicates that Aung has multiple
prior adult felony convictions and has violated probation several times. The record
supports the district court’s findings.
II.
“A durational departure must be based on factors that reflect the seriousness of the
offense, not the characteristics of the offender.” State v. Solberg, 882 N.W.2d 618, 623
(Minn. 2016). To justify a durational departure, a defendant’s conduct must have been
“significantly less serious than that typically involved in the commission of the offense .”
Id. (quotation omitted).
The district court did not abuse its discretion in denying Aung’s durational departure
motion. In consideri ng the seriousness of Aung’s offense, the district court expressed
concern that Aung was impaired by drug use while carrying a loaded weapon and that the
weapon was stolen from a vehicle. At sentencing, Aung did not provide reasons for a
durational departure other than referencing the state’s original offer of 36 months’
imprisonment.
In sum, the district court did not abuse its discretion in denying Aung’s departure
motions.
Affirmed.