State of Minnesota v. Elvis Joko Porte

This opinion is nonprecedential except as provided by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
A23-0746

State of Minnesota,
Respondent,

vs.

Elvis Joko Porte,
Appellant.

Filed April 29, 2024
Affirmed
Johnson, Judge

Olmsted County District Court
File No. 55-CR-22-6796

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

Mark A. Ostrem, Olmsted County Attorney, Carrie J. Osowski, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

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

Considered and decided by Cochran, Presiding Judge; Johnson, Judge; and

Halbrooks, Judge. ∗

∗
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
 NONPRECEDENTIAL OPINION

JOHNSON, Judge

Elvis Joko Porte pleaded guilty to second-degree controlled-substance crime. The

district court imposed an executed prison sentence of a duration that is within the

presumptive guidelines range. We conclude that the district court did not err by denying

Porte’s motion for a downward durational departure. Therefore, we affirm.

FACTS

In October 2022, the state charged Porte with first-degree controlled-substance

crime, in violation of Minn. Stat. § 152.021, subd. 1(1) (2020), based on the allegation that,

on December 29, 2021, he sold 23.284 grams of methamphetamine to a confidential

informant in exchange for $500. According to the complaint, the confidential informant

initially agreed to purchase methamphetamine from D.L.K., who then arranged for the

confidential informant to purchase methamphetamine directly from Porte.

In March 2023, the state and Porte entered into a plea agreement. Porte agreed to

plead guilty to an amended count of second-degree controlled-substance crime, in violation

of Minn. Stat. § 152.022, subd. 1(1) (2020). In exchange, the state agreed to not charge

Porte with any additional drug offenses that he might have committed before his guilty

plea. The parties also agreed that Porte could argue for a downward durational departure

at sentencing.

Before sentencing, Porte filed a one-page motion for a downward durational

departure. The district court conducted a sentencing hearing in April 2023. At the outset

of the hearing, the district court and counsel agreed that Porte’s offense is at a severity level

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of D7, that he has seven criminal-history points, that a three-month custody-status

enhancement is appropriate, and that the resulting presumptive guidelines range is 95 to

132 months. See Minn. Sent’g Guidelines 2.B.2.c., 4.C. (Supp. 2021). Porte’s attorney

requested a prison sentence of 57 months, which would allow Porte to be released from

prison soon after completing his term of imprisonment for a prior controlled-substance-

crime conviction. Porte argued that a downward durational departure was appropriate

because police officers orchestrated the controlled buy, including the amount of

methamphetamine sold. The district court denied Porte’s motion and imposed an executed

sentence of 95 months of imprisonment, the shortest duration within the presumptive

guidelines range. Porte appeals.

DECISION

Porte argues that the district court erred by denying his motion for a downward

durational departure and imposing a sentence within the presumptive guidelines range.

The Minnesota Sentencing Guidelines prescribe presumptive sentences for felony

offenses. Minn. Sent’g Guidelines 2.C (Supp. 2021). For any particular offense, the

guidelines sentence is “presumed to be appropriate for all typical cases sharing criminal

history and offense severity characteristics.” Minn. Sent’g Guidelines 1.B.13 (Supp.

2021). Accordingly, a district court “must pronounce a sentence . . . within the applicable

[presumptive] range . . . unless there exist identifiable, substantial, and compelling

circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1 (Supp. 2021).

“Substantial and compelling circumstances for a durational departure are those which

demonstrate that the defendant’s conduct was significantly more or less serious than that

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typically involved in the commission of the crime in question.” State v. Rund, 896 N.W.2d

527, 532 (Minn. 2017) (quotations omitted).

This court applies an abuse-of-discretion standard of review to a district court’s

denial of a defendant’s motion for a downward departure. State v. Stempfley, 900 N.W.2d

412, 417-18 (Minn. 2017); State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). Only in

a “rare case” will we reverse a district court’s imposition of a presumptive sentence.

Bertsch, 707 N.W.2d at 668; State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

In this case, the district court determined that there are no substantial or compelling

reasons to depart from the presumptive sentence because Porte’s offense is “just a typical

second-degree controlled-substance crime.”

Porte contends that his offense is less serious than the typical second-degree

controlled-substance crime on the ground that he admitted to selling controlled substances

on only one occasion and because law-enforcement officers determined the amount of

methamphetamine sold. We recently rejected a nearly identical argument, reasoning that

no caselaw supports the proposition that “the sale of a controlled substance in a controlled

buy is a less-serious or less-dangerous offense than the typical offense” and that “the fact

that [the appellant’s] sale occurred on one day does not render his offense less serious than

a typical third-degree drug sale.” State v. Fritz, No. A19-1307, 2020 WL 3172805, at *2-

3 (Minn. App. June 15, 2020). We reject Porte’s argument for the same reasons.

Even if we were to focus on the amount of methamphetamine sold in the controlled

buy, we would not conclude that Porte’s offense is less serious than typical. Porte admitted

to selling approximately 23 or 24 grams of methamphetamine, which is more than twice

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the 10-gram threshold for second-degree controlled-substance crime. See Minn. Stat.

§ 152.022, subd. 1(1). Notably, the amount Porte admitting to selling is more than the 17-

gram threshold for first-degree controlled-substance crime. See Minn. Stat. § 152.021,

subd. 1(1). Yet the plea agreement allowed Porte to plead guilty to the lesser offense of

second-degree controlled-substance crime. Arguably, Porte’s conduct is more serious than

the typical second-degree controlled-substance crime, based on the amount of

methamphetamine he sold.

Porte also contends that his case is less serious than typical on the ground that the

defendants in five other cases, which he asserts are factually similar, received downward

durational departures. In general, an appellate court determines whether an appellant’s

offense is typical or atypical by relying on “our collective, collegial experience in

reviewing a large number of criminal appeals.” State v. Mattson, 376 N.W.2d 413, 415

(Minn. 1985) (quotation omitted). But three of Porte’s comparison cases were not

reviewed by an appellate court. In the two cases cited by Porte that were reviewed by this

court, the defendants received downward durational departures, but the departure decisions

were not at issue on appeal. See State v. Vang, No. A19-1945, 2020 WL 7329975 (Minn.

App. Dec. 14, 2020), rev. denied (Minn. Feb. 24, 2021); Roberts v. State, No. A14-0598,

2015 WL 134050 (Minn. App. Jan. 12, 2015), rev. denied (Minn. Mar. 25, 2015).

Consequently, those two opinions are not helpful in defining the category of less-serious-

than-typical cases. Porte does not attempt to identify the characteristics of a typical second-

degree controlled-substance crime. In any event, we note that we recently affirmed the

denials of requests for downward durational departures in cases that may be deemed

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factually similar. See, e.g., Love v. State, No. A20-0681, 2021 WL 79308, at *2 (Minn.

App. Jan. 11, 2021), rev. denied (Minn. Mar. 16, 2021); Fritz, 2020 WL 3172805 at *2-3;

State v. Quick, No. A18-1166, 2019 WL 1431922, at *2 (Minn. App. Apr. 1, 2019).

Porte last contends that his case is less serious than typical on the ground that

statistical data gathered by the sentencing guidelines commission shows that, between 2016

and 2020, 21 percent of persons convicted of second-degree controlled-substance crime in

Minnesota (and 19 percent of persons convicted of that offense in Olmsted County)

received a downward durational departure. Porte does not explain how that statistical data

shows that his offense was significantly less serious than the typical offense. The data

submitted by Porte does not include any information about the facts of the other cases,

which makes it impossible to make meaningful comparisons. The data could just as well

be used to show that Porte likely is among the approximately four-fifths of offenders whose

crimes are typical and, thus, are deserving of a sentence within the presumptive range. We

nonetheless note that the data in the district court record reflects only two other offenders

who appear to be similarly situated to Porte in that they were convicted of second-degree

controlled-substance crime while having six or more criminal-history points, having a prior

drug offense, and being on supervision at the time of the offense. Both of those offenders

received prison sentences of 92 months, only three months less than Porte’s sentence.

Thus, Porte has not demonstrated that the district court abused its discretion by

determining that Porte’s offense is not significantly less serious than the typical offense

and that there are no substantial or compelling reasons to depart from the presumptive

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guidelines range. Accordingly, the district court did not err by denying Porte’s motion for

a downward durational departure.

Affirmed.

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