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This opinion is nonprecedential except as provided by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
A24-1503

State of Minnesota,
Respondent,

vs.

Phillip James Merrill,
Appellant.

Filed May 12, 2025
Affirmed
Smith, Tracy M., Judge

Carver County District Court
File No. 10-CR-22-1099

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

Mark Metz, Carver County Attorney, Kevin A. Hill, Assistant County Attorney, Chaska,
Minnesota (for respondent)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Ross , Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Phillip James Merrill appeals from the district court’s sentencing order,
arguing that the district court erred by not exercising its discretion on remand when it
imposed the presumptive sentence for his conviction for first-degree possession of a
2
controlled substance despite there being substantial and compelling circumstances
justifying a downward departure. We affirm.
FACTS
The following facts are drawn from our opinion in a previous appeal of Merrill’s
sentence, State v. Merrill, No. A23 -1220, 2024 WL 542234, at *3 (Minn. App. Feb. 12,
2024), rev. denied (Minn. Apr. 24, 2024), and from the record developed on remand.
In December 2022, police discovered Merrill unconscious in the driver’s seat of a
suspiciously parked vehicle with a bag containing 120 grams of methamphetamine on the
passenger’s seat. Respondent State of Minnesota charged Merrill with first-degree
possession of a controlled substance for possession of 50 grams or more of
methamphetamine, in violation of Minnesota Statutes section 152.021, subdivision 2(a)(1)
(2022).
Merrill pleaded guilty to the charge and moved for a downward durational departure
from the presumptive sentence of 128 months in prison. The district court held a sentencing
hearing and granted Merrill’s motion, sentencing him to an executed sentence of 60
months.1 In making its decision, the district court reasoned:
You were found passed out in a car with the drugs. It
was the anniversary of your family’s tragic car accident and the
death of your son. I can’t even imagine what that is like to go
through. And so I do believe there’s exonerating circumstances
here that warrant a durational departure. And I don’t believe
sending you to prison for 128 months is good for public safety

1 As the district court informed Merrill, the 60-month sentence would consist of 40 months
in prison and 20 months of supervised release. For that reason, in our opinion in Merrill’s
direct appeal, we stated that Merrill was sentenced to serve 40 months in prison. Merrill,
2024 WL 542234, at *1.
3
or the state or you or the prison system, quite frankly, or the
tax payer.
The state appealed. In our decision, we reviewed the district court’s reasoning and
determined that “none of the reasons the district court offered to depart from the mandated
sentence can support its implied finding that Merrill’s drug-possession conduct was
significantly less serious than that of the typical first- degree possessor.” Id. at *2-3. We
reversed and remanded “for the district court to impose the statutorily mandated sentence.”
Id. at *3.
On remand, the district court held a review hearing, during which Merrill’s counsel
asked the district court to consider a durational departure on its own motion, arguing that
there was still an “opening” for the district court to depart durationally because there was
a “substantial and compelling reason” to do so. Specifically, Merrill’s counsel argued that
Merrill possessed a large amount of drugs on the anniversary of his son’s death to “set up
for suicide that day” and not for sale or distribution as is typical when someone possesses
a large amount of methamphetamine.
The district court declined to depart and imposed the presumptive 128-month
sentence, stating:
I’m going to deny the motion, and here’s why: One, the factual
basis that I used -- and that was what was presented to me by
you and your client -- to grant your motion were those two
indicators that the court of appeals did analyze, and the way I
read the opinion, . . . they do not consider those ample grounds
to warrant a departure. As much as I would like to give a
departure, it’s clear to me those were rejected by the court, so
whether I simply reinsert those or reapply those under my own
order or my own motion, I think I would face the same
results. . . . I read the opinion to give me clear instructions, and
4
I’d have to follow what they tell me, whether I like it or not.
So with that in mind, I am going to deny the motion this
morning, okay.
Merrill appeals.
DECISION
“A sentencing court must pronounce a sentence within the applicable range unless
there exist identifiable, substantial, and compelling circumstances that distinguish a case
and overcome the presumption in favor of the guidelines sentence.” State v. Soto, 855
N.W.2d 303, 308 (Minn. 2014) (quotation omitted). “Substantial and compelling
circumstances are those circumstances that make the facts of a particular case different
from a typical case.” State v. Olson, 765 N.W.2d 662, 664 (Minn. App. 2009) (quotation
omitted). “A downward durational departure is justified only if the defendant’s conduct
was significantly less serious than that typically involved in the commission of the
offense.” State v. Solberg, 882 N.W.2d 618, 624 (Minn. 2016) (quotation omitted); see
Minn. Sent’g Guidelines 2.D.3 (2022) (providing a “nonexclusive list of factors” that a
district court may use to depart).
Appellate courts will reverse a district court’s refusal to depart from a presumptive
sentence only in rare cases. State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013)
(citing State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981)), rev. denied (Minn. Sept. 17, 2013).
Generally, if the record shows that the district court evaluated the testimony and
information presented to it before determining whether to depart, this court “may not
interfere with the sentencing court’ s exercise of discretion.” State v. Van Ruler , 378
N.W.2d 77, 80-81 (Minn. App. 1985). But, “[w]hen the record contains evidence of factors
5
supporting departure, which could have been, but were not, considered by the district court,
we may remand for consideration of those factors.” Johnson, 831 N.W.2d at 925-26 (citing
State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984)).
Merrill argues that the district court erred by not exercising its discretion on remand
when it imposed the presumptive sentence despite there being substantial and compelling
circumstances justifying a downward departure.
Remand Instructions
First, Merrill argues that the district court abused its discretion by not considering
departure on remand because the district court was of the “mistaken belief” that it lacked
the discretion to depart. “On remand, a district court must ‘execute [a reviewing court’s]
mandate strictly according to its terms’ and lacks power to ‘alter, amend, or modify [that]
mandate.’” Rooney v. Rooney, 669 N.W.2d 362, 371 (Minn. App. 2003) (alterations in
original) (quoting Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982)),
rev. denied (Minn. Nov. 25, 2003). A district court’s compliance with remand instructions
is reviewed for an abuse of discretion. Janssen v. Best & Flanagan, LLP, 704 N.W.2d 759,
763 (Minn. 2005).
Our instruction to the district court on remand was “to impose the statutorily
mandated sentence.” Merrill, 2024 WL 542234, at *3. Merrill argues that this instruction
did not mean that the district court could not depart from the presumptive 128- month
sentence. Merrill was sentenced pursuant to Minnesota Statutes section 152.021,
subdivision 3(c) (2022), which provides for a mandatory prison sentence of “not less than
65 months or the presumptive fixed sentence under the Minnesota Sentencing Guidelines,
6
whichever is greater,” unless the district court, when presented with a motion by the
prosecutor or “on its own motion,” finds substantial and compelling reasons to depart.
Minn. Stat. § 152.021, subd. 3(c). Merrill argues that the “statutorily mandated sentence”
that we directed the district court to impose on remand contemplated the granting of a
downward departure if the district court, on its own motion, found substantial and
compelling reasons to depart.
We are not convinced that the district court abused its discretion by interpreting our
remand instruction to require imposition of the presumptive sentence. In the previous
appeal, we concluded that the district court’s reasons for departing did not “involve
circumstances that make Merrill’s crime less serious than the conduct a first-degree
methamphetamine possessor typically engages in, let alone significantly less serious.”
Merrill, 2024 WL 542234, at *2. While expressing sympathy for Merrill’s tragic loss and
the “bondage of drug addiction,” we concluded that his possession of about a quarter pound
of methamphetamine was not “significantly less serious” than the typical possession
offense. Id. at *3. W e explained that “the district court [was] bound to impose the
presumptive sentence mandated by [section 152.01]” in the absence of substantial and
compelling reasons, and we directed the district court on remand “to impose the statutorily
mandated sentence.” Id. at *2-3. We conclude that the district court correctly interpreted
our remand instruction.
Substantial and Compelling Circumstances
Second, even if our remand instructions permitted the district court to exercise its
discretion to consider a departure, we conclude that the district court did not abuse its
7
discretion by determining that the circumstances asserted by Merrill on remand were no
different from those that we previously rejected and that there were therefore not grounds
to justify a departure.
Merrill’s arguments for why his conduct was significantly less serious than that in
a typical possession offense are based on his history of addiction and trauma as well as his
subsequent remorse and cooperation with the criminal justice system . Merrill’s argument
during his review hearing—that a substantial and compelling reason to depart was that he
sought to commit suicide and lacked an intent to sell or distribute the methamphetamine—
is a version of his previous argument that, because his actions were motivated by grief
resulting from the trauma of losing his family, his conduct is significantly less serious than
that of another first-degree possessor. Although, in our previous opinion we did not
explicitly review each of the arguments articulated by Merrill in this appeal, we fully
reviewed the record from which Merrill’s current arguments are drawn and implicitly
rejected them when we instructed the district court to impose the statutorily mandated
sentence. See id.
Because Merrill’s arguments on remand were based on reasons that were previously
rejected by this court, he did not present a valid reason for departure, and as a result, the
district court did not err by imposing the presumptive sentence.
Affirmed.