                        This opinion will be unpublished and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
                                   A16-0573

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                  Jerry Lee Collins,
                                      Appellant.

                               Filed December 5, 2016
                                      Affirmed
                                Cleary, Chief Judge

                              Polk County District Court
                               File No. 60-CR-15-610


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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)



      Considered and decided by Schellhas, Presiding Judge; Cleary, Chief Judge; and

Ross, Judge.
                         UNPUBLISHED OPINION

CLEARY, Chief Judge

       On appeal from a sentencing order, appellant Jerry Lee Collins challenges the

district court’s denial of his motion for a downward dispositional departure. Because we

conclude that the district court properly exercised its discretion, we affirm.

                                          FACTS

       On April 11, 2015, appellant was involved in an altercation with his adult son L.W.

at appellant’s apartment. Upon arrival, police spoke with L.W. and observed a straight,

three-inch laceration on L.W.’s neck that was bleeding slightly. L.W. appeared moderately

intoxicated and smelled of alcohol. Appellant also appeared intoxicated and told police

that L.W. struck him in the face, destroyed his property, and walked into a knife. Appellant

reported no injuries. After appellant showed police where the knife was located, police

arrested him.

       The next day, an officer interviewed appellant in jail. Appellant said that he had a

folding knife out and open and believed that L.W. walked into it. Police again spoke with

L.W., who said that appellant put the knife to his neck and then said, “See what I can do to

you.” L.W. said that appellant had threatened to kill him and would not allow him to leave

the apartment.

       Appellant was charged with assault in the second degree while using a dangerous

weapon in violation of Minn. Stat. § 609.222, subd. 1 (2014), and with terroristic threats in

violation of Minn. Stat. § 609.713, subd. 1 (2014). Appellant pleaded guilty to the second-



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degree assault charge in exchange for the dismissal of the terroristic-threats charge. Under

the plea agreement, both parties were free to present argument about the appropriate

sentence.

       Prior to sentencing, probation completed a presentence investigation (PSI), which

revealed that appellant had several violent felonies dating back to 1993 and a number of

past misdemeanors on his criminal record. The PSI report showed that appellant had

violated the terms of his probation in 1996 and 2007 for underlying felonies, resulting in

executed sentences, and had also violated his probation in 2003 for a misdemeanor. At the

time of the offense, appellant was under a probationary supervision term stemming from a

2011 conviction for failing to register as a predatory offender. The sentencing worksheet,

which revealed that appellant had five criminal-history points, noted that the presumptive

sentence was 51 months in prison.

       Appellant moved for a downward dispositional departure, arguing that he was

particularly amenable to probation. Probation recommended the guidelines executed

sentence and noted that while appellant was doing well on supervision until the April 2015

offense, he did not show remorse for the actions at issue.

       At sentencing, appellant was heard on his motion. The state opposed the departure

motion, arguing that appellant was not amenable to probation because he had a criminal

history going back 20 years, which included violent offenses, and because he had violated

probation in the past.




                                             3
       After considering appellant’s motion, the state’s response, and reading a letter from

appellant addressed to the court, the district court told appellant, “I cannot find any

substantial and compelling reason under the law for a dispositional departure in your case,

and I cannot find under the law that you’re particularly amenable to probation, as required,

based upon not only the facts of this case but upon your significant criminal history.” The

district court sentenced appellant to a 51-month prison term. Appellant now appeals.

                                     DECISION

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

for a downward dispositional departure.       Appellate courts give district courts great

discretion in the imposition of sentences and reverse sentencing decisions only for an abuse

of discretion. State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014). “[I]t would be a rare

case which would warrant reversal of the refusal to depart.” State v. Kindem, 313 N.W.2d

6, 7 (Minn. 1981).

       District courts must pronounce the presumptive “sentence within the applicable

range unless there exist identifiable, substantial, and compelling circumstances” that

distinguish the case and overcome the presumption in favor of the guidelines sentence.

Minn. Sent. Guidelines 2.D.1 (2014); Soto, 855 N.W.2d at 308. A defendant’s particular

amenability to probation is a valid reason to depart dispositionally from an executed

sentence to a stayed sentence. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). “Numerous

factors, including the defendant’s age, his prior record, his remorse, his cooperation, his

attitude while in court, and the support of friends and/or family, are relevant to a



                                             4
determination whether a defendant is particularly suitable to individualized treatment in a

probationary setting.” Id. Even where circumstances exist to depart, a district court is not

obligated to grant a departure motion. State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006).

A district court, though, is required to exercise its 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).

       Appellant argues that the district court abused its discretion by failing to depart

because there was evidence of a particular amenability to probation—mainly, appellant had

significant chemical and mental health needs, he had been accepted into a chemical-

dependency treatment program, and he had a good attitude towards treatment and

rehabilitation. Appellant also argued to the district court that he was remorseful, dedicated

to changing, and was successful on probation up until the current offense.

       However, the mere fact that a mitigating factor is present in a particular case does

not obligate a district court to depart or impose a shorter sentence or probation instead of a

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

       Here, the district court noted on the record that it considered appellant’s written

motion and the PSI report. The district court also heard appellant’s arguments in open

court and read appellant’s letter to the court, in which he asked for a chance to attend

chemical-dependency treatment. After considering appellant’s motion and the state’s

response, the district court could not find any substantial and compelling reasons under the

law to depart and agreed with the state that appellant was not particularly amenable to



                                              5
probation because of his criminal history.       Because the district court deliberately

considered circumstances for and against departure, it properly exercised its discretion in

refusing to depart from the presumptive sentence.

      Affirmed.




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