                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-1679

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Tawnja Rene Wallace,
                                       Appellant.

                                   Filed July 14, 2014
                                        Affirmed
                                     Hooten, Judge

                                Polk County District Court
                                 File No. 60-CR-12-2679

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

Gregory A. Widseth, Polk County Attorney, Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica Surges Shacka,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Kirk, Presiding Judge; Hooten, Judge; and Reyes,

Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

         Appellant challenges the district court’s denial of her request for a downward

dispositional departure, arguing that the district court abused its discretion because
substantial and compelling factors support a departure and because the district court

failed to fully consider those factors. We affirm.

                                         FACTS

       In January 2013, appellant Tawnja Wallace pleaded guilty to second-degree

assault in violation of Minn. Stat. § 609.222, subd. 1 (2012). The district court accepted

Wallace’s guilty plea, ordered the completion of a presentence investigation (PSI), and

scheduled a sentencing hearing.      The PSI revealed that Wallace had several felony

convictions, including four from when she lived in Illinois. The PSI also established that

Wallace had a criminal-history score of four. The presentence investigator recommended

that the district court sentence Wallace to 45 months’ imprisonment.

       At the sentencing hearing, the state requested the district court to impose and

execute a 39-month sentence of imprisonment, the low end of the presumptive range for

second-degree assault for someone with a criminal-history score of four. See Minn. Sent.

Guidelines 4.A, 5.A (2012). Wallace requested a downward dispositional departure and

asserted a number of reasons in support of a departure, including her ongoing mental-

health and chemical-dependency treatment, her willingness to attend a long-term

inpatient treatment center, and her need for dual residential mental-health and chemical-

dependency treatment. Wallace personally addressed the district court and explained that

the Illinois felony convictions occurred over a decade ago while she was in a gang, she

has since left the gang, she has reunited with her daughter and grandchildren, she has

sought support for anger and sobriety issues which alter her frame of mind, and she has

achieved sobriety in the past.


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       The district court denied Wallace’s request for a downward dispositional departure

and sentenced her to 39 months’ imprisonment. Wallace appeals.

                                      DECISION

       Wallace challenges the district court’s decision denying her request for a

dispositional departure. “Whether to depart from the sentencing guidelines rests within

the district court’s discretion, and the district court will not be reversed absent an abuse of

that discretion.” State v. Pegel, 795 N.W.2d 251, 253 (Minn. App. 2011). “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 range.” State

v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010).

Only in a “rare” case will this court reverse the imposition of a presumptive sentence.

State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

       The district court did not abuse its discretion by sentencing Wallace to 39 months’

imprisonment. Wallace does not dispute that she has a criminal-history score of four and

that she pleaded guilty to second-degree assault, which carries a severity level of six. See

Minn. Sent. Guidelines 5.A. Under these circumstances, the presumptive sentence is

imprisonment between 39 and 54 months. Id. 4.A.

       Wallace contends that the district court abused its discretion by denying her

request despite the fact that there were substantial and compelling reasons to justify a

dispositional departure. We disagree.

       “The district court must order the presumptive sentence provided in the sentencing

guidelines unless substantial and compelling circumstances warrant a departure.” Pegel,


                                              3
795 N.W.2d at 253 (quotation omitted).           But “the presence of factors supporting

departure does not require departure.” State v. Abrahamson, 758 N.W.2d 332, 337

(Minn. App. 2008), review denied (Minn. Mar. 31, 2009). “The district court does not

abuse its discretion by refusing to dispositionally depart from a presumptively executed

prison sentence, even if there is evidence in the record that the defendant would be

amenable to probation.” State v. Olson, 765 N.W.2d 662, 663 (Minn. App. 2009). Thus,

the district court did not abuse its discretion merely because Wallace can point to

mitigating factors.

         Wallace contends that the district court abused its discretion by failing to fully

consider the substantial and compelling reasons justifying a dispositional departure. A

district court abuses its discretion if it fails to consider reasons for departing from the

presumptive sentence. State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984). “If the

district court has discretion to depart from a presumptive sentence, it must exercise that

discretion by deliberately considering circumstances for and against departure.” State v.

Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002), review denied (Minn. Apr. 16,

2002).

         Wallace notes that the district court failed to consider her age, prior record,

remorse, cooperation with the district court, support from family and friends (including

the victim), and previous success on probation. Wallace correctly identifies these as

factors that the district court may consider when determining whether a defendant is

amenable to individualized treatment in a probationary setting. See State v. Trog, 323

N.W.2d 28, 31 (Minn. 1982) (listing factors). But a district court does not abuse its


                                             4
discretion by failing to address every mitigating factor presented. Pegel, 795 N.W.2d at

254. And we “may not interfere with the [district] courts [sic] exercise of discretion, as

long as the record shows the sentencing court carefully evaluated all the testimony and

information presented before making a determination.” State v. Van Ruler, 378 N.W.2d

77, 80–81 (Minn. App. 1985).

       After Wallace presented her arguments justifying a dispositional departure, the

district court stated on the record:

              [O]n the one hand we have a victim who supports you and
              does not want you in custody. And the injuries are relatively
              minor, when you think about other injuries that could have
              occurred with this kind of crime. On the other hand, you
              can’t consider things like, you know, addictions, those kinds
              of things. Those are not mitigating factors. Mental health
              can be a mitigating factor.

                     So I’m thinking about all of these issues that come
              about and, you know, what sticks out to me the most is really
              the criminal history because there’s so much of it. And that
              to me, when I think about this criminal history, I don’t think
              counsel really had an idea about it because they thought there
              would be one criminal history point. And I look at the
              felonies. . . .

                      We’ve got felonies into 2008, 2006, you know, two of
              them in 2005. There’s enough there that I’m not going to
              presume to get into the head[s] of the probation agents, but
              they are recommending an executed sentence even before
              there was an issue of breach of the plea agreement. And in
              light of that relatively recent criminal history, I don’t find that
              there is enough of a mitigating factor to support departing
              from the guidelines.

                     So I appreciate everything you’ve said. I agree that
              you do need treatment and I hope you are able to address it
              and I think a dual diagnosis is the way to go. But I am not
              finding that to be a compelling enough reason to depart. So


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              legally we stay with the guidelines. I’m going to do that. I
              am going to go to the bottom of the box that was suggested by
              [the state].

(Emphases added.)

       The record reflects that the district court carefully considered Wallace’s arguments

for a dispositional departure alongside arguments against a departure. The district court

did not abuse its discretion by sentencing Wallace to the presumptive disposition as

provided in the guidelines.

       Affirmed.




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