                           This opinion will be unpublished and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
                                      A16-0890

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                   Michael Scott Johnson,
                                        Appellant.

                                  Filed December 5, 2016
                                         Affirmed
                                       Reilly, Judge

                                Anoka County District Court
                                  File No. 02-CR-15-867

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

Anthony C. Palumbo, Anoka County Attorney, Jon C. Audette, Assistant County Attorney,
Anoka, Minnesota (for respondent)

Aaron J. Morrison, Wold Morrison Law, Minneapolis, Minnesota (for appellant)

         Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and Johnson,

Judge.

                          UNPUBLISHED OPINION

REILLY, Judge

         Appellant challenges the district court’s imposition of the presumptive guidelines

prison sentence for his second-degree criminal-sexual-conduct conviction, arguing that he

has no criminal history, has demonstrated remorse, and is particularly amenable to
probation and should be granted a downward dispositional departure. Because the district

court did not abuse its discretion in sentencing, we affirm.

                                          FACTS

       Respondent State of Minnesota charged appellant Michael Johnson with first-

degree criminal sexual conduct, alleging that between April 26, 2013 and January 15, 2015,

appellant had sexual contact with a child when the victim was under 13 years of age and

appellant was more than 36 months older than the victim. The state amended the charge

to second-degree criminal sexual conduct and appellant entered a plea of guilty to the

amended charge. Appellant moved for a dispositional departure from the presumptive

sentence under the Minnesota Sentencing Guidelines, arguing that he was particularly

amenable to treatment. The district court denied appellant’s motion and imposed the

presumptive sentence of commitment to prison for a term of 90 months. See Minn. Sent.

Guidelines IV (2014) (sentencing grid). This appeal follows.

                                     DECISION

       We review a district court’s refusal to grant a dispositional departure from the

sentencing guidelines for an abuse of discretion, State v. Bertsch, 707 N.W.2d 660, 668

(Minn. 2006), and we will affirm the imposition of a presumptive 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), review denied (Minn. Sept. 17, 2013) (quotation omitted).

       The Minnesota Sentencing Guidelines prescribe a sentence or a range for the

sentence that is “presumed to be appropriate.” State v. Soto, 855 N.W.2d 303, 308 (Minn.


                                             2
2014) (quoting Minn. Sent. Guidelines 2.D.1 (2014)). The district court “must pronounce

a sentence within the applicable range unless there exist identifiable, substantial, and

compelling circumstances” distinguishing the case and overcoming the presumption in

favor of the guidelines disposition.     Id.       A defendant’s “particular amenability to

individualized treatment in a probationary setting” may justify a downward dispositional

departure from a presumptive commitment to prison. Id. (quoting State v. Trog, 323

N.W.2d 28, 31 (Minn. 1982) (emphasis omitted)). Minnesota courts are guided by several

factors, known as Trog factors, to determine if a defendant is particularly amenable to

individualized treatment in a probationary setting. Trog, 323 N.W.2d at 31. These factors

include “the defendant’s age, his prior record, his remorse, his cooperation, his attitude

while in court, and the support of [the defendant’s] friends and/or family.” Id. Offense-

related factors may also be used to support a dispositional departure. State v. Chaklos, 528

N.W.2d 225, 228 (Minn. 1995); see also Soto, 855 N.W.2d at 313 (considering

circumstances of offense when reviewing departure request). However, the presence of

mitigating factors “[does] not obligate the court to place defendant on probation.” State v.

Wall, 343 N.W.2d 22, 25 (Minn. 1984).

       Analysis of the Trog factors indicates that the district court did not abuse its

discretion by denying a dispositional departure in this case. Appellant was 54 years old at

sentencing. He had no prior criminal record. While past criminal history is a relevant

factor, a defendant’s clean record does not by itself compel a dispositional departure

“because that factor, in the form of defendant’s criminal history score, has already been

taken into account by the Sentencing Guidelines in establishing the presumptive sentence.”


                                               3
Trog, 323 N.W.2d at 31; Bertsch, 707 N.W.2d at 668. Appellant argued that he accepted

responsibility for his crime and showed remorse, but the district court found that appellant

lacked insight into his actions and the impact his actions had on his victim, relying in part

on statements contained in the psychosexual evaluation report.            The psychosexual

evaluator noted that appellant had “limited insight” with regard to how his personal and

relationship history affected his decisions leading to the crime, “demonstrate[d] significant

lack of insight” into the reasons why the victim’s family would be angry toward him,

“lack[ed] insight to the impact of his actions on others,” and demonstrated a “lack of insight

or appreciation of the impact of his actions on others.” Lastly, appellant did not claim to

have the support of family or friends, and the presentence investigation report states that

appellant “is currently residing by himself” in a rural area in Minnesota and is not involved

in outside activities.

       A consideration of these factors demonstrates that the district court did not abuse its

discretion when it determined that a dispositional departure was not appropriate in this

case. Moreover, even if appellant presented evidence that he was particularly amenable to

probation, the sentencing court was not required to grant a dispositional departure. See

Wall, 343 N.W.2d at 25 (“The fact that a mitigating factor was clearly present did not

obligate the court to place defendant on probation or impose a shorter term than the

presumptive term.”); see also Bertsch, 707 N.W.2d at 668 (stating that appellate courts

“will not ordinarily interfere with a [presumptive] sentence . . . even if there are grounds

that would justify departure” (quotation omitted)).        The Minnesota Supreme Court

recognized that only the “rare case” merits reversal based on the district court’s refusal to


                                              4
depart from the sentencing guidelines. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981)

(noting that it is the “rare case which would warrant reversal of the refusal to depart”). This

is not the “rare case” compelling reversal. The district court considered the circumstances

for and against departure and concluded that appellant was not entitled to a downward

dispositional departure from the sentencing guidelines. The record supports the district

court’s decision that there were not “substantial and compelling reason[s]” supporting a

dispositional departure in this case, Soto, 855 N.W.2d at 314, and we affirm.

       Affirmed.




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