State of Minnesota v. TreVonne Cortez Green

This opinion is nonprecedential except as provided by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
A23-1749

State of Minnesota,
Respondent,

vs.

TreVonne Cortez Green,
Appellant.

Filed September 30, 2024
Affirmed
Slieter, Judge

Ramsey County District Court
File No. 62-CR-23-795

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)

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

Considered and decided by Slieter, Presiding Judge; Reyes, Judge; and Wheelock,

Judge.

NONPRECEDENTIAL OPINION

SLIETER, Judge

On direct appeal from the final judgment of conviction of unlawful possession of a

firearm, appellant challenges his sentence, arguing that the district court abused its
discretion by denying his motion for a downward durational departure. Because the district

court acted within its discretion by imposing the presumptive sentence, we affirm.

FACTS

Respondent State of Minnesota charged appellant TreVonne Cortez Green with

unlawful possession of a firearm and unlawful possession of ammunition in violation of

Minn. Stat. § 624.713, subd. 2(b) (2022). The complaint alleged that a police officer

stopped Green’s car for speeding and, during a search of the car, found marijuana and a

gun with an extended magazine and ammunition. Green had four prior convictions for

drug possession, violating a domestic-abuse no-contact order, first-degree aggravated

robbery, and terroristic threats. According to the complaint, Green was ineligible to

possess firearms or ammunition due to the prior convictions of drug possession, aggravated

robbery, and terroristic threats, any of which independently made him ineligible to possess

a firearm or ammunition.

Green entered a plea of guilty to one count of unlawful possession of a firearm and

the state dismissed the remaining charge. The parties did not have an agreement as to

sentencing and Green acknowledged that the offense carried a statutory minimum sentence

of 60 months in prison. Green agreed that he knew he was ineligible to possess a firearm

due to his prior convictions. The district court determined that Green provided a sufficient

factual basis and accepted his plea. As part of the plea agreement, the district court

conditionally released Green to a residential treatment program pending sentencing. Green

later left treatment prior to completion, violating the conditions of his release. In response,

the district court revoked his conditional release and issued a warrant for his arrest.

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 Green returned to court for sentencing in August 2023 and moved for a downward

durational departure. The state urged the district court to impose the presumptive sentence.

The district court denied Green’s request and committed him to the commissioner of

corrections for 60 months, the statutory minimum sentence.

Green appeals.

DECISION

“[Appellate courts] afford the [district] court great discretion in the imposition of

sentences and reverse sentencing decisions only for an abuse of that discretion.” State v.

Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). The Minnesota

Sentencing Guidelines prescribe presumptive sentences for felony offenses. Minn. Sent’g

Guidelines 2.C (2022). 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 (2022). A district court must impose a

sentence within the guidelines “unless there exist identifiable, substantial, and compelling

circumstances that distinguish a case and overcome the presumption in favor of the

guidelines sentence.” Soto, 855 N.W.2d at 308.

Green challenges the district court’s denial of his request for a downward durational

departure. A durational departure is a sentence that departs in length from the presumptive

sentence. State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016); Minn. Sent’g Guidelines

1.B.5.b (2022). It is “justified if the defendant’s conduct is significantly less serious than

that typically involved in the commission of the offense.” State v. Mattson, 376 N.W.2d

413, 415 (Minn. 1985). A durational departure is based on factors that reflect the

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seriousness of the offense, not the characteristics of the offender. Solberg, 882 N.W.2d at

624-25. Green asserts that the district court incorrectly treated his motion as a request for

a dispositional departure, rather than a durational departure, because it improperly

considered offender-based characteristics instead of offense-based characteristics.

The record does not support this argument. Green is correct that a dispositional

departure “typically focuses on characteristics of the defendant that show whether the

defendant is particularly suitable for individualized treatment in a probationary setting.”

Id. at 623. A durational departure, by contrast, considers whether the defendant’s conduct

was “significantly more or less serious than that typically involved in the commission of

the crime in question.” State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017) (quotations

omitted). But Green’s argument overlooks that, although the district court is required to

give reasons for a departure, an explanation is not required when the court considers

reasons for departure but elects to impose the presumptive sentence. State v. Theisen, 363

N.W.2d 867, 869 (Minn. App. 1985), rev. denied (Minn. May 18, 1985); State v. Van Ruler,

378 N.W.2d 77 (Minn. App. 1985) (noting that an “explanation is not required” for the

denial of a durational departure, provided that the district court considered the arguments

and the defendant was sentenced to the presumptive sentence).

In denying Green’s request, the district court “carefully evaluated all the testimony

and information presented” before imposing the statutory minimum 60-month prison

sentence. State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013), rev. denied (Minn.

Sept. 17, 2013). Our review of the record supports the district court’s determination. Green

was adjudicated guilty of unlawful possession of a firearm in violation of Minn. Stat.

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§ 624.713, subd. 1 (2022). It is uncontested that he has three prior felony convictions for

crimes of violence for drug possession, aggravated robbery, and terroristic threats. Green’s

conviction for possessing a firearm illegally carries a mandatory minimum five-year prison

term. Minn. Stat. § 609.11, subd. 5(b) (2022). The district court imposed this presumptive

sentence.

When presented with a motion from a prosecutor, or on its own motion, the district

court may sentence a defendant without regard to the mandatory minimum sentences

established in section 609.11 “if the court finds substantial and compelling reasons to do

so.” Id., subd. 8(a). The prosecutor did not file such a motion and the district court declined

to depart. Although the district court was not required to explain its reason for denying

Green’s departure request, it provided the following rationale for its decision, stating that:

It does your kids no good [if] you are in prison, and that’s why
I don’t want you in prison. I do try to do everything I can so I
have reason to keep you out of prison. I release you, I say go
get help, the help that you need, and now here we are. You’re
back in jail and you don’t do what you’re supposed to do. And
your attorney want[s] to help you as well. He did everything
he could under the law. He filed motions, he made arguments
so that you don’t go to prison, but you don’t do anything at all
to help him. You don’t even show that you’re able. If you
have chemical issues, take care of it so that he can come to me
and argue and say Judge, my client has chemical issues. That’s
what led to all of this. Now, he’s taking care of his issue so
please keep him in treatment, keep him with his family. And
you don’t do that any of that. So at some point, now is said
and done with this case. But for the future, you want [to] do
something for you and your kids, then you act on your own.
Take care of your mental health or the chemical [issues]. Take
care of the issue so that you will be able to be here for your
kids.

...

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 You did plead guilty to Count I. If I have not done so, I am
adjudicating you guilty of that count. And the Court does not
find there’s any substantial and compelling reason for a
durational departure, so the Court is committing you to the
Commissioner of Corrections for 60 months.

We are satisfied that this colloquy shows that the district court heard and considered

all of the arguments of counsel before imposing the presumptive sentence.

Green also argues that his offense was less serious than the typical offense because

the gun was located in a closed envelope in the glove compartment and he did not brandish

or use the weapon. The district court did not find these arguments compelling as reflected

by its determination that there exists no substantial and compelling reasons for a durational

departure. And, as stated, an explanation is not required when the court considers reasons

for the requested departure but imposes the presumptive sentence. Theisen, 363 N.W.2d

at 869. Further, even if Green had put forward a compelling reason to depart on the ground

that his conduct was significantly less serious than a typical unlawful-possession case, the

district court was not required to grant that request. See State v. Bertsch, 707 N.W.2d 660,

668 (Minn. 2006) (recognizing that, even if grounds for departure exist, a guidelines

sentence is presumed to be appropriate and will not ordinarily be disturbed). We therefore

conclude that the district court acted within its discretion by denying a durational departure.

Affirmed.

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