                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A16-0021
                                      A16-0022

                                     State of Minnesota,
                                          Appellant,

                                             vs.

                                    John Porter Jackson,
                                        Respondent.

                                    Filed June 27, 2016
                                  Reversed and remanded
                                     Peterson, Judge

                               Ramsey County District Court
                         File Nos. 62-CR-15-4733, 62-CR-15-5237

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Laura S. Rosenthal, Assistant County Attorney,
St. Paul, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, John C. Donovan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Schellhas, Presiding Judge; Peterson, Judge; and Reyes,

Judge.

                          UNPUBLISHED OPINION

PETERSON, Judge

         In these consolidated sentencing appeals from orders that imposed sentences for two

convictions that arose out of separate incidents, appellant State of Minnesota argues that
the district court abused its discretion when it granted respondent John Porter Jackson’s

motions for dispositional departures. We reverse and remand.

                                          FACTS

       On June 24, 2015, St. Paul police were investigating a shots-fired call. Jackson

approached the officers and claimed that he had been assaulted.           Police found two

businesses with broken windows, and a witness identified Jackson as the person who broke

the windows. Jackson was charged with first-degree criminal damage to property.

       On July 10, 2015, St. Paul police responded to a call about a burglary at an

electronics store. A witness who saw a man enter the store and leave less than a minute

later described the man to police. Officers stopped a man who matched the description and

identified him as Jackson. Jackson had an electronic tablet in his pocket. The witness

identified Jackson as the person who entered the store, and a surveillance video confirmed

the identification. Jackson was charged with second- and third-degree burglary.

       Jackson entered Norgaard guilty pleas1 to criminal damage to property and third-

degree burglary.

       On October 1, 2015, Jackson was sentenced for the third-degree burglary

conviction. He requested a dispositional departure, citing the responsibility he took for his



1
 “A plea constitutes a Norgaard plea if the defendant asserts an absence of memory on the
essential elements of the offense but pleads guilty because the record establishes, and the
defendant reasonably believes, that the state has sufficient evidence to obtain a conviction.”
Williams v. State, 760 N.W.2d 8, 12 (Minn. App. 2009) (citing State ex rel. Norgaard v.
Tahash, 261 Minn. 106, 111-12, 110 N.W.2d 867, 871 (1961)), review denied (Minn. Apr.
21, 2009).


                                              2
actions, his cooperation by pleading guilty, and his need for mental-health and chemical-

dependency treatment. The district court noted that the sentencing guidelines stated limited

grounds for departure and that the only offender-related ground that Jackson fit was

“personal vulnerability” due to mental illness and alcoholism. The court imposed a 27-

month sentence but stayed execution and placed Jackson on probation for three years. The

court stated that the ground for departure was Jackson’s personal vulnerability due to

intoxication at the time of the offense.

       On October 8, 2015, Jackson was sentenced for the criminal-damage-to-property

conviction. The district court imposed a 21-month sentence but granted Jackson’s motion

for a downward dispositional departure, stayed execution, and placed Jackson on probation

for three years. The district court stated:

              The reasons [for the departure] are [Jackson’s] personal
              vulnerability due to being intoxicated at the time of the offense.
              His amenability to treatment, his cooperation in court, and the
              fact that I think at this point society is better served to try and
              get him treatment and some mental health treatment also
              [rather] than just putting him in prison.

But the district court also stated that it was granting the departure because it had done so

in the earlier case and told Jackson, “[W]hen I look at your record it’s horrendous and you

really better be serious about quitting drinking.” Jackson has a criminal-history score of

five and a significant history of committing criminal-damage-to-property and burglary

offenses while on probation and after completing treatment. His criminal history goes back

to 1999 and includes numerous gross misdemeanor and misdemeanor offenses.




                                              3
       The state filed separate appeals challenging both sentences, and this court

consolidated the appeals.

                                     DECISION

       An appellate court reviews a district court’s sentencing decision for an abuse of

discretion. State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). Although the district court

has broad discretion at sentencing, that discretion is limited by the Minnesota Sentencing

Guidelines, and a district court may only depart from the presumptive sentence when

substantial and compelling circumstances are present. Id. “If the reasons given [for a

sentencing departure] are improper or inadequate and there is insufficient evidence of

record to justify the departure, the departure will be reversed.” State v. Geller, 665 N.W.2d

514, 516 (Minn. 2003) (quotation omitted).

       As support for a dispositional departure, a defendant must show “particular

amenability to individualized treatment in a probationary setting.” Soto, 855 N.W.2d at

308 (emphasis omitted); State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Typically,

amenability to probation is demonstrated by such factors as “the defendant’s age, his prior

record, his remorse, his cooperation, his attitude while in court, and the support of friends

and/or family.” Trog, 323 N.W.2d at 31.

       In Soto, the Minnesota Supreme Court explained that its

              consistent use of the words “particular” and “particularly” in
              this context is not accidental.           “Particular” means
              “exceptional” or “distinctive among others of the same group,”
              and “particularly” means “especially” or “specifically.” By
              requiring a defendant to be particularly amenable to probation,
              therefore, we ensure that the defendant’s amenability to
              probation distinguishes the defendant from most others and


                                             4
              truly presents the “substantial[] and compelling circum-
              stances” that are necessary to justify a departure. At the same
              time, insisting on particular amenability to probation limits the
              number of departures and thus fosters uniformity in sentencing,
              which is a primary purpose of the Sentencing Guidelines.

855 N.W.2d at 309 (citations omitted).

       Given Jackson’s numerous previous offenses and history of reoffending while on

probation and following treatment, the record does not support a finding of particular

amenability to probation. Information in the presentence investigation report and the

district court’s own statement at the second sentencing hearing about Jackson’s

“horrendous” record indicate that Jackson is not particularly amenable to treatment, and

the district court did not identify, and we have not found, any facts in the record that

demonstrate that Jackson is likely to get control of his alcohol problem. Jackson testified

at the October 8 sentencing hearing that he wants to quit drinking, but he did not identify

any plan for doing so that he has in place. See State v. Hennessy, 328 N.W.2d 442, 442-

43 (Minn. App. 1983) (affirming dispositional departure when, although defendant had

criminal-history score of seven, he had not previously been adequately supervised outside

of prison setting, and he had been admitted to highly structured treatment program and

appeared motivated to control his drinking problem).

       Also, the sentencing guidelines include a nonexclusive list of factors that may be

used as reasons for departure, which explicitly addresses intoxication. Included on the list

of mitigating factors is that “[t]he offender, because of physical or mental impairment,

lacked substantial capacity for judgment when the offense was committed. The voluntary




                                             5
use of intoxicants (drugs or alcohol) does not fall within the purview of this factor.” Minn.

Sent. Guidelines 2.D.3.a.(3) (2015) (emphasis added).

        Because the record does not support a finding of particular amenability to

individualized treatment in a probationary setting, we reverse Jackson’s sentences and

remand for resentencing.

       Reversed and remanded.




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