State of Minnesota v. Kenneth Bernard Lax

This opinion is nonprecedential except as provided by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
A23-1118

State of Minnesota,
Respondent,

vs.

Kenneth Bernard Lax,
Appellant.

Filed April 22, 2024
Affirmed
Bratvold, Judge

Ramsey County District Court
File No. 62-CR-22-2682

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

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

Zorislav R. Leyderman, The Law Office of Zorislav R. Leyderman, Minneapolis,
Minnesota; and

Joseph G. Vaccaro, The Law Office of Joseph G. Vaccaro, PLLC, St. Paul, Minnesota (for
appellant)

Considered and decided by Connolly, Presiding Judge; Smith, Tracy M., Judge; and

Bratvold, Judge.
 NONPRECEDENTIAL OPINION

BRATVOLD, Judge

Appellant hit the victim once, causing the victim to fall and sustain a catastrophic

brain injury. In this appeal from the sentence imposed for his conviction for first-degree

assault, appellant argues that the district court erred in denying his motion for a downward

dispositional departure. Because the district court did not abuse its discretion by denying

appellant’s motion and imposing a presumptive disposition under the Minnesota

Sentencing Guidelines, we affirm.

FACTS

Respondent State of Minnesota charged appellant Kenneth Bernard Lax with

first-degree assault under Minn. Stat. § 609.221, subd.1 (2020). The complaint alleged that,

on May 12, 2022, Lax punched J.G. in the face once; J.G. then fell to the ground, hit his

head, and was found bleeding and unconscious. A bystander called 911, and St. Paul law

enforcement responded. J.G. received emergency medical treatment, suffered “significant

brain swelling,” “was in critical condition,” and required surgery. Information submitted

to the district court disclosed that, as a result of his injury, J.G. requires a wheelchair,

experiences repeated seizures, and struggles to communicate.

Lax pleaded guilty on December 8, 2022, and submitted a written plea petition with

no agreement on a recommended sentence. Lax moved for a downward dispositional

departure, requesting that the district court “depart from the Sentencing Guidelines, stay

the imposition or execution of his sentence, and sentence him to a period of probation.” In

2
the alternative, Lax asked for “a durational departure with a reduced period of

incarceration.”

In support of his motion, Lax filed a memorandum, an alternative

presentence-investigation report prepared by a dispositional advisor, a forensic

mental-health assessment prepared by a licensed psychologist, and a letter from Minnesota

Adult and Teen Challenge’s outpatient counseling center. The district court also received

a presentence-investigation report (PSI) from the county, which recommended a prison

sentence of 110 months. The PSI explained that the guidelines yielded a sentence range of

94 to 132 months in prison based on Lax’s criminal-history score of two and the severity

level of his offense—nine. The state also filed two victim-impact statements from members

of J.G.’s family. For example, a letter from J.G.’s mother described the changes in J.G.’s

life, including his seizures.

At the sentencing hearing, Lax’s attorney argued that three mitigating factors

supported Lax’s request for a dispositional departure. First, the attorney contended that Lax

had a “[p]hysical or mental impairment which caused [a] lack [of] substantial capacity for

judgment when the offense was committed.” Lax’s attorney cited the forensic assessment,

which explained Lax’s experience as a victim of child abuse and witness to his mother

being assaulted. The assessment stated that Lax was “triggered” by what he saw before he

assaulted J.G.

Second, Lax’s attorney argued that “other substantial grounds,” such as the

circumstances of the assault, lessened Lax’s culpability. Lax’s attorney pointed out that,

just before the assault, Lax “believed that [J.G.] had assaulted [a] female and he saw her

3
fall to the ground.” Lax then “punched him once.” While Lax “initially did leave the scene,”

he returned, “gave a statement” to police, and “confessed to what he did.” Lax’s attorney

also argued that J.G.’s brain damage was not caused by “the force of the punch” but by

J.G. falling and hitting his head on the curb.

Third, Lax’s attorney argued that Lax “is particularly amenable to probation.” Lax’s

attorney contended that Lax has been steadily employed, has family support, and has had

no criminal history for over ten years. Lax also followed the conditions of his release before

sentencing. Three character witnesses spoke on Lax’s behalf—his mother, his employer,

and a community activist who had worked with him.

The prosecuting attorney asked that the district court impose a presumptive sentence

of 110 months in prison because, while Lax “appears to be fully accountable

and . . . remorseful for what happened, it doesn’t change that fact that . . . it was his punch

that was the mechanism of the injury that was so severe that [J.G.] has to suffer.” The

prosecuting attorney argued that, while Lax’s childhood trauma “may have created certain

triggers,” that is not grounds for departure when J.G. was not the aggressor in an assault

against Lax. The prosecuting attorney read a letter from J.G.’s mother describing the effect

of J.G.’s injury on him and the family. Additionally, the prosecuting attorney played a

video of a victim-impact statement from J.G. himself.

Lax also addressed the district court, saying he was “sorry that this whole thing

happened,” was “truly sorry for the injuries that [J.G.] sustained,” and had “done things to

make sure that [he] won’t make another mistake like [he] did that night.”

4
 At the end of the hearing, the district court imposed a sentence of 75 months in

prison, granting Lax’s request for a downward durational departure after finding that the

“conduct in this case was less serious than the typical [first-degree] assault” and that this

was a mitigating factor. But the district court denied Lax’s motion for a dispositional

departure, explaining that it was persuaded by “the seriousness of the crime committed”

and “how it fits contextually into [Lax’s] criminal history . . . so [it] cannot in good faith

make the finding that [he is] amenable to probation.” Accordingly, the district court could

not “come to the conclusion that [Lax was] a good candidate for supervision in this case

on probation.”

Lax appeals.

DECISION

The Minnesota Sentencing Guidelines establish a range of presumptive sentences

for felony convictions depending on the seriousness of the offense and the defendant’s

criminal history. Minn. Sent’g Guidelines 1.A. (Supp. 2021). The legislature’s stated

purpose for the guidelines is to “maintain uniformity, proportionality, rationality, and

predictability in sentencing.” Minn. Stat. § 244.09, subd. 5(2) (2020). Accordingly,

deviations from the guidelines are uncommon and discouraged. State v. Solberg,

882 N.W.2d 618, 623 (Minn. 2016). District courts must impose a sentence within the

guidelines range unless there are “identifiable, substantial, and compelling circumstances

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

The guidelines recognize both durational and dispositional departures from the

presumptive sentence range. Id. A district court grants a downward durational departure

5
when it imposes a shorter sentence than that recommended in the guidelines. See Deegan

v. State, 711 N.W.2d 89, 92 (Minn. 2006) (stating that a 360-month prison sentence was a

“downward durational departure” from the presumptive 386-month prison sentence). A

district court grants a downward dispositional departure when it stays the execution of a

prison term and places a defendant on probation and under supervision. See State v. Trog,

323 N.W.2d 28, 30-31 (Minn. 1982) (stating that probation is a dispositional departure

when the guidelines recommend an executed sentence). Typically, durational departures

are based on the “seriousness of the offense,” while dispositional departures are based on

“characteristics of the defendant.” Solberg, 882 N.W.2d at 623-24. A district court can,

however, consider some offense-related factors when determining whether to grant a

dispositional departure. See State v. Stempfley, 900 N.W.2d 412, 416, 419 (Minn. 2017)

(affirming a district court decision granting a dispositional departure based on the

defendant’s minor role in the crime).

A defendant’s amenability to probation is usually determined by mitigating factors

such as “the defendant’s age, [their] prior record, [their] remorse, [their] cooperation,

[their] attitude while in court, and the support of friends and/or family.” Trog, 323 N.W.2d

at 31. Mitigating factors can justify a downward departure, but even if mitigating

circumstances are present, a district court may decline to depart from the guidelines. State

v. Pegel, 795 N.W.2d 251, 253-54 (Minn. App. 2011).

Appellate courts review a district court’s decision to grant or deny a motion “to

depart from the presumptive guidelines sentence for an abuse of discretion.” Solberg,

882 N.W.2d at 623. Appellate courts generally “affirm the imposition of a presumptive

6
guidelines sentence when the record shows that the sentencing court 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,

2023). We will only reverse a district court’s refusal to deviate from the guidelines in “rare”

cases. Id. (quotation omitted); State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

Under the guidelines, the presumptive sentence range for first-degree assault is 94

to 132 months in prison for a defendant with a criminal-history score of two. Here, Lax

pleaded guilty to first-degree assault; the district court imposed a sentence of 75 months in

prison and therefore granted Lax’s motion for a downward durational departure. Lax

argues, however, that the district court abused its discretion by denying his request for a

downward dispositional departure—in other words, by not staying his prison sentence and

placing him on probation. At the sentencing hearing and in his district court motion, Lax

asserted three mitigating factors that he reasserts on appeal.

In his brief to this court, Lax makes many specific arguments about the three

mitigating factors discussed during his sentencing hearing. Some arguments emphasize the

offense characteristics, including the circumstances of the assault—for example, Lax’s

belief that he saw J.G. assault a woman and Lax’s evidence that he “was triggered into

engaging and punching [J.G] due to external factors outside [of] his control” because he

was a victim of child abuse and domestic violence. Some of Lax’s arguments rest on his

own character, such as his cooperation since his arrest as well as his accountability and

remorse for the offense. He contends that he is “particularly amenable to probation.” Lax

also criticizes the PSI, arguing that it offers no analysis of the factors “weighing in favor

7
of departure as outlined” in his sentencing submissions. Finally, Lax argues that district

court gave “unduly excessive weight to [his] old and decayed criminal offenses and

improperly disregarded the fact that [Lax] was able to turn his life around and had remained

law-abiding for over 10 years since his last felony offense dating back to 2008.”

At Lax’s sentencing hearing, the district court said that it reviewed “all the

documentation” that Lax “submitted in support of [his] request for a departure.” The

district court acknowledged that Lax had undergone treatment, was remorseful, and did not

intend for J.G.’s injury to be so severe. The district court also found that mitigating factors

were present and supported a durational departure. But the district court could not “come

to the conclusion that [Lax was] a good candidate for supervision in this case on probation.”

The district court cited the “catastrophic” and “extraordinary consequences for the victim”

and Lax’s criminal history. While significant time had passed since many of Lax’s prior

criminal convictions, the district court remained concerned with Lax’s “pattern of criminal

conduct” and, specifically, that he had violated probation before. Accordingly, the district

court stated that it could not find that Lax was particularly amenable to probation and

denied his request for a dispositional departure.

A district court need not grant a departure, even if mitigating circumstances are

present. Pegel, 795 N.W.2d at 253-54. While the district court did not make specific

findings about every mitigating factor that Lax raised, that does not affect our analysis. A

district court “is not required to state its reasons for not departing on the record.” Johnson,

831 N.W.2d at 926. So, without more, the district court’s failure to comment on each

mitigating factor is not an abuse of discretion.

8
 The district court described its sentencing decision as “extraordinarily difficult.”

The district court also explicitly discussed many of the mitigating factors Lax advocated

as well as analyzed Lax’s amenability to probation. The record also shows that the district

court reviewed all the information presented and determined that Lax was not a good

candidate for probation. The district court acknowledged that Lax was not a “bad person”

and had “a lot of good left in [his] life and a lot of good left in the community.” Indeed, the

district court granted Lax’s motion for a downward durational departure after determining

that Lax’s conduct was less severe than is typical for first-degree assault. Still, the district

court denied Lax’s motion for a dispositional departure to probation, citing first the

“seriousness of the crime,” which it had described as “an act of violent aggression.”

Second, the district court pointed to how the assault “fits contextually” into Lax’s criminal

history. The district court was not required to make any findings while imposing a

guidelines disposition, but its doing so indicates that it made a careful and reasoned

decision.

We acknowledge the effect of this sentence on Lax and his loved ones. We conclude,

however, that this is not a “rare” case in which we would determine that the district court

abused its discretion by denying a departure motion. Id. at 925 (quotation omitted). In sum,

we conclude that the district court acted well within its broad discretion by denying Lax’s

motion for a dispositional departure and imposing an executed sentence as presumed by

the guidelines.

Affirmed.

9