                        This opinion will be unpublished and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
                                   A14-0551

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Albert Joe Ryans, Jr.,
                                     Appellant.

                               Filed October 27, 2014
                                      Affirmed
                                  Connolly, Judge

                            Olmsted County District Court
                              File No. 55-CR-13-4366


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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)



      Considered and decided by Hooten, Presiding Judge; Connolly, Judge; and

Johnson, Judge.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant challenges his sentence, arguing that the district court abused its

discretion by denying his motion for a downward dispositional departure. We affirm.

                                          FACTS

       On July 3, 2013, appellant Albert Ryans Jr. attended a social gathering in

Rochester. Officers from the Rochester Police Department were dispatched to the area in

response to a 911 call reporting a disturbance. While conducting surveillance, an officer

observed appellant walk to his car, remove a sawed-off shotgun from the waistband of his

pants, and place it in the trunk. The officer identified himself and arrested appellant.

       The state charged appellant with possession of a firearm by an ineligible person in

violation of Minn. Stat. § 624.713, subd. 1(2) (2012). The offense carries a mandatory

minimum sentence of 60 months in prison. See Minn. Stat. § 609.11, subd. 5(b) (2012)

(“Any defendant convicted of violating section 609.165 or 624.713, subdivision 1, clause

(2), shall be committed to the commissioner of corrections for not less than five years,

nor more than the maximum sentence provided by law.”). On November 12, 2013,

appellant pleaded guilty to the charged offense with the understanding that the state

would recommend the mandatory 60-month prison sentence, but that appellant would be

able to move for a sentencing departure. Appellant filed a motion for a downward

dispositional departure later that day. On January 2, 2014, the district court denied

appellant’s motion and sentenced him to 60 months in prison.




                                              2
                                    DECISION

      Appellant argues that the district court abused its discretion by denying his motion

for a downward dispositional departure because there were substantial and compelling

circumstances in his case to warrant a departure. We disagree.

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

guidelines unless the case involves “substantial and compelling circumstances” to

warrant a downward departure.1 State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). We

review a district court’s decision to grant or deny a departure from the presumptive

sentence for abuse of discretion, State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003), and

will reverse a presumptive sentence only in rare cases, Kindem, 313 N.W.2d at 7.

      This court “may not interfere with the [district] court’s exercise of discretion, as

long as the record shows the [district] 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). Where substantial and compelling circumstances for

departure exist, the district court must deliberately consider those circumstances before

imposing the presumptive sentence. State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App.




1
  If an offense carries a mandatory minimum sentence, the presumptive sentence is the
longer of either the mandatory minimum or the guidelines sentence. Minn. Sent.
Guidelines 2.E (2013). Possession of a firearm by an ineligible person has a severity
level of six. Minn. Sent. Guidelines 5.B (2013). Appellant had a criminal-history score
of 1, making the presumptive sentence under the Guidelines 27 months on probation.
Minn. Sent. Guidelines 4.A (2013). Because the statutory mandatory minimum is 60
months in prison, the presumptive sentence is 60 months in prison. Minn. Stat. § 609.11,
subd. 5(b).

                                           3
1984).     No explanation is required when the district court considers reasons for a

departure but imposes a presumptive sentence. Van Ruler, 378 N.W.2d at 80.

         Appellant argues that the district court abused its discretion by denying his motion

for a downward dispositional departure without considering his amenability to probation.

We disagree. In determining whether to depart from a presumptive sentence, a district

court may consider the individual’s amenability to probation. State v. Heywood, 338

N.W.2d 243, 244 (Minn. 1983). In doing so, the district court may consider factors such

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.” State v. Trog, 323 N.W.2d 28, 31

(Minn. 1982). “[T]he mere fact that a mitigating factor is present in a particular case

does not obligate the court to place defendant on probation or impose a shorter term than

the presumptive term.” State v. Pegel, 795 N.W.2d 251, 253-54 (Minn. App. 2011)

(quotation omitted).

         At appellant’s sentencing hearing, and following both parties’ arguments

regarding appellant’s motion for a downward dispositional departure, the district court

explained that it reviewed “the record as a whole, the file, the report, the arguments of the

attorneys, and the statement of the defendant,” but did not find substantial and

compelling reasons warranting a downward dispositional departure.             It first noted

appellant’s age and prior record by stating, “the defendant is relatively young, he is 20

years old. His prior record is somewhat concerning considering his relative young age.”

Despite appellant’s age, this is not his first experience with law enforcement. He has

previously been adjudicated delinquent for several misdemeanors and two felonies.


                                              4
Thus, the district court considered this factor before deciding that it was not a substantial

and compelling circumstance warranting a departure from the presumptive guidelines

sentence.

          The district court also noted appellant’s remorse and attitude on the record. It

stated, “[t]he defendant does state remorse, however, it doesn’t appear to me that there’s

much that I can say one way or another regarding this issue.” Similarly, the district court

noted that appellant “has been professional, appropriate, and there’s nothing that I’ve

observed one way or the other that would support or not support a departure.” Even

though the court recognized appellant’s apparent remorse and appropriate attitude, the

mere existence of mitigating factors does not obligate the court to depart from the

presumptive sentence. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). Moreover, the

district court specifically found that appellant’s lack of cooperation weighed against

granting a dispositional departure based on appellant’s failure to cooperate with the

completion of the presentence investigation despite being ordered to do so.

          The district court also considered the support of appellant’s family and friends and

stated,

                I can’t tell from the PSI with how it’s written or by the
                statements offered by defendant as to whether or not he has
                the support of family or friends. The support that he does
                have from friends is concerning as most of those that he does
                associate with have significant criminal ties as well, very
                involved in the criminal justice system, and engaged in the
                behaviors to which the defendant is appearing before the
                Court for sentencing today.




                                               5
The record demonstrates that the district court considered appellant’s amenability to

probation before imposing the presumptive guidelines sentence.            Consequently, we

conclude that the district court did not abuse its discretion by denying appellant’s motion

for a downward dispositional sentencing departure.

       Appellant also argues that “other key factors support a dispositional departure.”

We disagree. First, he argues that the district court erred by relying on the PSI which

contained three-year-old psychological evaluations. But, appellant did not challenge the

contents or make corrections to the PSI in district court. Appellant argues that he is

especially amenable to probation because he has never had the opportunity to undergo

adult programming. Appellant raised this argument and the district court rejected it,

noting “I can see that he was offered a number of services at Red Wing. And as noted in

that PSI, he responded poorly to all efforts of the criminal justice system to affect positive

change.” We conclude that the district court considered and carefully evaluated the

information presented before deciding to impose the presumptive sentence of 60 months

in prison. See Van Ruler, 378 N.W.2d at 80-81 (stating that this court may not interfere

with the district court’s decision to impose the presumptive sentence if the record shows

that it carefully evaluated the information presented before making its decision). This is

not a rare case in which we would reverse the imposition of a guidelines sentence. See

Kindem, 313 N.W.2d at 7.         Consequently, the district court properly exercised its

discretion by denying appellant’s motion for a downward dispositional departure.

       Affirmed.




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