                        This opinion will be unpublished and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
                                   A14-0975

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Daniel David Ojanen,
                                     Appellant.

                                Filed March 9, 2015
                                      Affirmed
                                   Stauber, Judge

                           St. Louis County District Court
                     File Nos. 69DUCR124022; 69DUCR133942

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

Mark S. Rubin, St. Louis County Attorney, Victoria D. Wanta, Assistant St. Louis
County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate State Public Defender, Sharon E. Jacks, Assistant
State Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and

Hooten, Judge.
                        UNPUBLISHED OPINION

STAUBER, Judge

       Appellant challenges his sentence, arguing that he should have been granted a

dispositional departure because he is amenable to probation and because most first-time

failure-to-register offenders receive dispositional departures. We affirm.

                                         FACTS

       Appellant Daniel David Ojanen is required to register as a predatory offender

based on a 2003 conviction for third-degree assault and fourth-degree criminal sexual

conduct. In October 2013, Ojanen’s yearly address verification letter was returned to the

Minnesota Bureau of Criminal Apprehension as undeliverable. The Duluth police

discovered Ojanen no longer resided at his stated address and they could not determine

his whereabouts. Ojanen was charged with violating the predatory-offender registration

requirements. See Minn. Stat. § 243.166, subd. 5(a) (2012) (stating that a person who

knowingly violates any of the predatory offender registration requirements is guilty of a

felony).

       Approximately eight months later, Ojanen was found, appeared in court, and was

released pending trial. On September 25, 2013, during Ojanen’s pretrial release period,

he was charged with fifth-degree possession of a controlled substance, a felony, see

Minn. Stat. § 152.025, subd. 2(a)(1) (2012); third-degree criminal damage to property, a

gross misdemeanor, see Minn. Stat. § 609.595, subd. 2(a) (2012); and three counts of

tampering with a motor vehicle, all misdemeanors, see Minn. Stat. § 609.546 subd. 2

(2012). Ojanen later pleaded guilty to the failure-to-register charge and all the September


                                             2
25, 2013 charges. In exchange, the state agreed to dismiss an unrelated fourth-degree

assault charge. Id. The district court ordered a presentence investigation on the two

remaining felony charges.

       Ojanen moved for a downward dispositional departure, requesting “long term

probation, with conditions to include local incarceration, [and] participation in any

programming and aftercare recommended.” Ojanen cited his mental illness and

chemical-dependency issues and the frequency of failure-to-register offenders being

granted dispositional departures as reasons to depart. The district court found that there

were no sufficient substantial and compelling reasons to depart from the sentencing

guidelines and imposed the presumptive executed sentence under the Minnesota

Sentencing Guidelines: imprisonment for 36 months on the failure-to-register charge and

21 months on the fifth-degree possession charge, to run concurrently. This appeal

followed.

                                      DECISION

       Ojanen first argues that the district court abused its discretion when it denied his

motion for a dispositional departure. We review a district court’s sentencing decision for

an abuse of discretion. State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014). However,

the Minnesota Sentencing Guidelines set forth presumptively appropriate sentence ranges

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

substantial and compelling circumstances” to depart. Id. at 308 (quotation omitted).

“This court will not generally review a district court’s exercise of its discretion to

sentence a defendant when the sentence imposed is within the presumptive guidelines


                                              3
range.” State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn.

July 20, 2010). Instead, only the “rare” case requires us to reverse the district court’s

imposition of a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

       To determine whether a downward dispositional departure is justified, the court

considers the non-exclusive Trog factors which include “the defendant’s age, his prior

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

and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). The presence of

mitigating factors does not require the court to grant a dispositional departure. State v.

Abrahamson, 758 N.W.2d 332, 337 (Minn. App. 2008), review denied (Minn. Mar. 31,

2009). Rather, the court focuses “on the defendant as an individual and on whether the

presumptive sentence would be best for him and for society.” State v. Heywood, 338

N.W.2d 243, 244 (Minn. 1983). A stay of execution, as Ojanen requested, is justified by

a “defendant’s particular amenability to individualized treatment in a probationary

setting.” Trog, 323 N.W.2d at 31.

       Ojanen argues that he was particularly amenable to probation and that the Trog

factors support a dispositional departure. He first asserts that he showed remorse when

he apologized to the victims of the vehicle damage, the court, and the legal system in

general. He next argues that he took responsibility for the offense, demonstrated by his

guilty plea. But Ojanen pleaded guilty only after jury selection began, undermining this

argument. In fact, the state alleges that Ojanen was playing games with the system and

that this was Ojanen’s “third time in court to start a trial for one of his open files.”




                                               4
       Ojanen claims that he was cooperative throughout the process. His presentence

investigation notes Ojanen as “cooperative and respectful.” But after his pretrial release

for the failure-to-register offense, Ojanen was charged with several new offenses.

Further, while in jail after being arrested on the new charges, Ojanen was tased when he

became uncooperative with jail staff who were transporting him to his arraignment.

Ojanen explained that this incident occurred because he was still under the influence of

drugs. Ojanen also cites the support of his family because he wishes to set a good

example for his daughter, for whom his parents currently provide care. He further argues

that since he would be supervised longer if he were granted a dispositional departure,

probation would be better for him and the community.

       Ojanen does not dispute that he has a significant criminal history, notably 11

felonies for a variety of offenses including first-degree criminal damage to property,

third-degree assault, fourth-degree criminal sexual conduct, theft, and controlled-

substance crimes. But he claims he is finally ready to face his mental-health and

chemical-dependency issues. He asserts that criminal history is not dispositive on

whether a dispositional departure should be granted. See State v. Malinksi, 353 N.W.2d

207, 209-10 (Minn. App. 1984) (affirming a dispositional departure where the court

identified sufficient factors showing the defendant was amenable to probation despite

defendant’s lengthy criminal history), review denied (Minn. Oct. 16, 1984). But caselaw

demonstrates only that with sufficient findings the district court could have granted

Ojanen a dispositional departure, not that the district court abused its discretion by

imposing an executed prison sentence. And, unlike the defendant in Malinski, Ojanen’s


                                              5
criminal history includes violent crime. Furthermore, the district court was concerned

that Ojanen’s suggested treatment center would not accept him due to Ojanen’s

behavioral issues while in jail.

       At sentencing, the district court considered that Ojanen appeared to “sincerely

want to make a change in [his] behavior and [his] life.” But the district court found that

when balancing this with Ojanen’s criminal history and his previous lack of compliance

with probation, there were not substantial and compelling circumstances to depart.

Ojanen’s arguments, including those on the Trog factors, do not require the district court

to grant the departure—especially since other factors support the imposition of the

presumptive sentence. See Abrahamson, 758 N.W.2d at 337. Here, the district court

properly considered Ojanen’s arguments. See State v. Curtiss, 353 N.W.2d 262, 264

(Minn. App. 1984) (stating that a district court must deliberately consider a defendant’s

arguments for departure). Ojanen has failed to show that the district court abused its

broad discretion by imposing the presumptive sentence. We conclude that this is not the

“rare case” that warrants reversal of the imposition of a guidelines sentence. See Kindem,

313 N.W.2d at 7.

       Ojanen also claims that his sentence was unjustifiably disparate as compared to

other first-time failure-to-register offenders because, in 2012, half of defendants

convicted of failure-to-register offenses were given dispositional departures. Despite

these statistics, the guidelines state that “[t]he sentence ranges provided in the

[s]entencing [g]uidelines [g]rid are presumed to be appropriate for the crimes to which

they apply,” and that district court “shall pronounce a sentence within the applicable


                                              6
range unless there exist identifiable, substantial, and compelling circumstances to support

a sentence outside the range.” Minn. Sent. Guidelines 1, 2.D (Supp. 2011).

       As discussed above, Ojanen’s circumstances do not demonstrate that the district

court abused its discretion by sentencing him to prison. Dispositional departures are

based upon offender-related factors, making other similarly situated offenders’ sentences

irrelevant. See Trog, 323 N.W.2d at 31 (listing offender-related factors); see also State v.

Behl, 573 N.W.2d 711, 713 (Minn. App. 1998), review denied (Minn. Mar. 19, 1998)

(stating that offender-related factors, and not offense-related factors, justify a

dispositional departure). Here, the district court properly considered Ojanen’s offender-

related factors—including his criminal history and failed parole and probation attempts—

and we affirm its imposition of the presumptive sentence.

       Affirmed.




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