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This opinion is nonprecedential except as provided by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
A24-1932

State of Minnesota,
Respondent,

vs.

David Choe Johnson,
Appellant.

Filed August 25, 2025
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-CR-23-4217

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

Mary F. Moriarty, Hennepin County Attorney, Matthew D. Hough, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Maxwell Shek, Shek Law LLC, Minneapolis, Minnesota (for appellant)

Considered and decided by Harris, Presiding Judge; Bjorkman, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges his mitigated prison sentence for criminal vehicular homicide,
arguing that the district court abused its discretion by declining to depart dispositionally
because it failed to consider offense-related factors. We affirm.
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FACTS
Appellant David Choe Johnson pleaded guilty to criminal vehicular homicide for
causing the death of E.P. while driving with an alcohol concentration of more than 0.08.
In exchange for Johnson’s guilty plea, respondent State of Minnesota agreed to recommend
a downward durational departure to a sentence of 36 months’ imprisonment and that
Johnson could request a downward dispositional departure. Johnson participated in a
presentence investigation (PSI) and probation staff recommended a stayed 48-month
sentence.
Johnson moved for a downward dispositional departure. In a supporting
memorandum, he argued that his offense was less severe than a typical criminal-vehicular-
homicide offense because his alcohol concentration was less than typical; he showed
remorse after the accident; and the victim had significant, preexisting health conditions that
contributed to his death. Johnson pointed out that he completed substance-abuse treatment
after the offense, and asserted that his age, remorse, cooperation, attitude, and criminal
history make him particularly amenable to probation.
At the sentencing hearing, the district court acknowledged that it had reviewed the
PSI report and Johnson’s departure motion and supporting memorandum. It received
impact statements from two of E.P.’s sisters and heard arguments from the prosecutor and
defense counsel. Johnson’s counsel maintained that a dispositional departure was
warranted because (1) the offense was less severe than typical, noting that Johnson was not
driving to or from a bar at the time of the accident; (2) E.P.’s preexisting health conditions
contributed to his death; (3) Johnson stayed at the accident scene until police arrived; and
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(4) Johnson expressed concern for the victim throughout the investigation. Defense
counsel also argued that Johnson “has the environment necessary for him to sustain long-
term sobriety.” The prosecutor argued for a downward durational departure to 36 months
in prison based on the parties’ agreement and Johnson’s acceptance of responsibility. But
they opposed Johnson’s dispositional-departure motion, noting that his admission of guilt
and decision to remain at the scene to render aid were “offense-based characteristic[s]” that
“do not justify” a downward dispositional departure.
The district court denied Johnson’s request for a downward dispositional departure,
instead imposing the agreed-to 36-month prison sentence.
Johnson appeals.
DECISION
The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses. Minn. Stat. § 244.09, subd. 5 (2022). The guidelines seek to “maintain
uniformity, proportionality, rationality, and predictability in sentencing.” Id. A district
court generally must impose the presumptive sentence. Minn. Sent’g Guidelines 2.D. 1
(2022). It has discretion to depart from the presumptive sentencing disposition or duration
if “identifiable, substantial, and compelling circumstances” support a departure. Id. If
such circumstances exist, a district court may—but is not required to—depart from the
presumptive sentence. Wells v. State, 839 N.W.2d 775, 781 (Minn. App. 2013), rev. denied
(Minn. Feb. 18, 2014). We afford district courts “great discretion in the imposition of
sentences.” State v. Soto, 855 N.W.2d 303, 307 (Minn. 2014) (quotation omitted).
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“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) (emphasis omitted). “A downward durational departure is justified when a
defendant’s conduct was significantly less serious than that typically involved in the
commission of the offense.” Id. at 625 (quotation omitted).
A dispositional departure is typically focused on “characteristics of the defendant,”
id. at 623, but a district court may consider offense-related factors when determining
whether to grant a dispositional departure, State v. Walker, 913 N.W.2d 463, 468 (Minn.
App. 2018). A defendant’s particular amenability to probation is a mitigating circumstance
that may support a dispositional departure. Minn. Sent’g Guidelines 2.D.3.a(7) (2022);
State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). Mere amenability is not sufficient;
“requiring a defendant to be particularly amenable to probation . . . distinguishes the
defendant from most others and truly presents the substantial and compelling
circumstances that are necessary to justify a departure.” Soto, 855 N.W.2d at 308-09
(quotation omitted).
While a district court is required to give reasons for granting a departure, it need not
explain its decision to impose a presumptive sentence, so long as the record is clear that
the district court considered reasons for departure. State v. Curtiss, 353 N.W.2d 262, 263
(Minn. App. 1984); see State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013) (stating
“the district court is not required to explain its reasons for imposing a presumptive
sentence”), rev. denied (Minn. Sept. 17, 2013). We will not rever se the district court’ s
refusal to depart “as long as the record shows the [district] court carefully evaluated all the
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testimony and information presented before making a determination.” State v. Pegel, 795
N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted).
Johnson does not challenge the district court’s decision to depart durationally from
the presumptive sentencing range of 41 to 57 months’ imprisonment. Minn. Sent’g
Guidelines 4.A. (2022). But he argues that the district court abused its discretion because
it “refused” to consider offense-related factors in denying his motion for a downward
dispositional departure. We are not persuaded.
The record is clear that the district court considered both offender-related and
offense-related sentencing factors. During the sentencing hearing, the district court stated
that it had reviewed Johnson’s departure motion, supporting memorandum, and the PSI
report. And it heard defense counsel’s oral argument. Each of these submissions discussed
offense-related factors that could support a dispositional departure.
1 Specifically, Johnson
identified his relatively low alcohol concentration, remorse, “attempt[] to render aid to the
victim,” and E.P.’s preexisting health conditions as offense-related factors favoring a
dispositional departure . In short, the record reflects that the district court exercised its
discretion in declining to depart dispositionally.
Moreover, before imposing Johnson’s sentence, the district court expressly
referenced both offender-related and offense-related factors:
I do feel that I need to say that there is—this action is a result
of Mr. Johnson’s actions. It does not matter how vulnerable a

1 Johnson also addressed the factors set out in State v. Trog to justify a downward
dispositional departure. 323 N.W.2d 28, 31 (Minn. 1982). He does not cite these factors
on appeal.
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victim may or may not have been that contributed to their
death.

The fact is that, in this case and many others, that, you
know, but for the actions of the defendant in driving and
causing this accident. I guess it would only be speculation, but
we would believe that . . . [E.P.] would still be here today. So
I think that is something that needs to be said based on the
comments—the written comments and the comments today.

. . . I had an opportunity to review the report and all of
the submissions that were here. And I think, like folks here
have said, that there was—a struggle for me sometimes with
these cases and coming up with what’s right given that there is
a death, and in some cases, given that —as I said, most of the
time, people don’t set out to engage in this criminal activity.
And, you know, part of what I look at when I’m trying to figure
this out is . . . how this affects the parties on both sides and
what actions are taken.

. . . .

The State is correct that most of the factors that were
identified by the defense are factors that relate to what we call
a durational departure. And that is whether they get less of a
sentence than what the [sentencing guidelines] call for,
meaning less actual time in prison versus being placed on
probation, and not whether or not he should be placed on
probation.

. . . .

. . . [B]ased on the information provided to me, I do not
find that Mr. Johnson is particularly amenable to probation.
And there is information to indicate that he did get involved in
treatment; however, it was, in my mind, very late in the
process. I don’t think that he has demonstrated that he
understands the extent of the issues. I don’t think that the
support group that—or I don’t mean AA or that kind of support
group, but the support around him, based on the contacts or the
collaterals, appreciates what he— what he needs.

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Johnson contends that the district court’s statement that “most of the factors that
were identified by the defense are factors that relate to what we call a durational departure”
reflects a “refusal” to consider offense-related factors. We disagree for two reasons. First,
the district court expressly stated that it considered Johnson’s departure motion and the
other information submitted in connection with sentencing, and we see no reason not to
take the district court at its word.
Second, the statement Johnson points to is consistent with caselaw—a dispositional
departure “typically focuses on characteristics of the defendant” and a durational departure
“must be based on factors that reflect the seriousness of the offense.” Solberg, 882 N.W.2d
at 623 (emphasis omitted). Still, the district court specifically addressed Johnson’s
arguments that his conduct and E.P.’s preexisting health problems made the offense less
serious than a typical criminal vehicular homicide. The court stated that E.P.’s death “is a
result of Mr. Johnson’s actions.” And it expressed the difficulty presented by cases like
this, observing, “most of the time, people don’t set out to engage in this criminal activity.”
The record persuades us that the district court exercised its broad sentencing discretion by
weighing offense-related factors to favor a durational departure rather than a dispositional
departure. We see no error or abuse of discretion because “[a] court may depart from the
presumptive disposition without departing from the presumptive duration, and vice-versa,”
and it need not depart even if a mitigating factor is present. Minn. Sent’g Guidelines
2.D.1.a.; Pegel, 795 N.W.2d at 253-54.
In sum, Johnson received the sentence that his plea agreement expressly allowed the
state to request—a downward durational departure to 36 months in prison. We are not
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convinced that the district court abused its discretion by declining to also depart
dispositionally or that this is the rare case in which we would disturb a sentence imposed
consistent with the applicable guidelines disposition. State v. Kindem, 313 N.W.2d 6, 7
(Minn. 1981) (holding that appellate courts will rarely disturb a district court’s refusal to
depart).
Affirmed.