                         This opinion will be unpublished and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
                                    A15-1456

                                  State of Minnesota,
                                       Appellant,

                                          vs.

                             Jonathon Michael Honeycutt,
                                     Respondent.

                               Filed January 25, 2016
                               Reversed and remanded
                                    Reilly, Judge

                             Ramsey County District Court
                               File No. 62-CR-14-486

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for appellant)

Mark J. Miller, Mark J. Miller, P.A., Minneapolis, Minnesota (for respondent)

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

Rodenberg, Judge.

                        UNPUBLISHED OPINION

REILLY, Judge

      The state challenges the district court’s dispositional departure from the

presumptive prison sentence for respondent’s conviction of first-degree criminal sexual
conduct. Because the district court’s factual findings are not supported by the record, we

reverse and remand for resentencing.

                                           FACTS

       Following a jury trial, respondent Jonathon Michael Honeycutt was found guilty of

first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(h)(iii) (2010),

stemming from ongoing sexual contact between respondent and his then-13-year-old niece.

The jury also found an aggravating factor of “multiple (more than one) forms or types of

sexual penetration committed against the victim.” Throughout the trial and sentencing,

respondent denied any wrongdoing and claimed that the victim fabricated the sexual

relationship.   The Ramsey County Community Corrections Department completed a

presentence investigation report and recommended a presumptive sentence to the

commissioner of corrections of 144 months, with a lower range of 144 months and an upper

range of 172 months, plus a ten-year conditional release period.

       Respondent moved for a downward dispositional departure from the Minnesota

Sentencing Guidelines pursuant to Minn. Stat. § 609.342, subd. 3 (2010), arguing that he

was unlikely to reoffend, had stable employment and a stable family life, did not present a

risk to the public, and was amenable to treatment. At no time in the proceedings did

respondent express any remorse. The state opposed the motion and argued for a 144-month

prison term based upon the seriousness of the crime and the existence of an aggravating

factor. The prosecutor argued that “[t]his crime is very serious. It is one of the most serious

crimes we have on the books and this particular offense is one of the most serious,

interfamilial kinds of sexual abuse that is possible.” The district court granted respondent’s


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motion for a dispositional departure and imposed a stayed 144-month prison sentence. The

district court judge stated that respondent’s recidivism rate “is about as low as it can get”

and further stated:

              I find the substantial and compelling reasons for this departure
              are that [respondent] is amenable to treatment, amenable to
              probation, lack of a felony record at his age. He has family
              support, he has the ability to obtain meaningful employment,
              and I believe he will cooperate completely with probation.

       The state appeals, claiming the district court abused its discretion by granting a

dispositional departure.

                                      DECISION

       We review a district court’s decision to depart from the sentencing guidelines for an

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

Sentencing Guidelines limit the district court’s discretion by “prescribing a sentence or

range of sentences that is ‘presumed to be appropriate.’” Id. at 308 (quoting Minn. Sent.

Guidelines 2.D.1 (2012)). Thus, a district court “must pronounce a sentence within the

applicable range” articulated by the sentencing guidelines “unless there exist identifiable,

substantial, and compelling circumstances” distinguishing the case.           Id. (quotation

omitted).

       If the district court departs 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).

This court examines the record to determine if the reasons given by the district court justify

the departure. Black v. State, 725 N.W.2d 772, 777 (Minn. App. 2007). If the reasons


                                              3
given are improper or inadequate but there is sufficient evidence in the record to justify the

departure, this court will affirm. Id. However, “[i]f the reasons given are improper or

inadequate and there is insufficient evidence of record to justify the departure, the departure

will be reversed.” State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).

       The state argues the district court’s dispositional departure should be reversed for

three reasons: (1) the district court failed to make the necessary factual finding that

respondent was particularly amenable to probation, (2) the facts do not establish that

respondent was particularly amenable to probation, and (3) a probationary sentence is

disproportional to the severity of the offense. We agree with the state and reverse and

remand for resentencing.

                                              I.

       The state argues that the district court erred by staying respondent’s prison sentence

without first determining that he was particularly amenable to probation. Although the

district court found that respondent was “amenable to probation,” it failed to make an

explicit factual finding that respondent was particularly amenable to probation. “[A]

defendant’s particular amenability to individualized treatment in a probationary setting will

justify departure in the form of a stay of execution of a presumptively executed sentence.”

Soto, 855 N.W.2d at 308 (emphasis omitted) (quotation omitted). The Soto decision

instructs that being amenable to probation—as opposed to being particularly amenable to

probation—is insufficient to justify a departure. See id. at 308-09. Requiring a defendant

to be particularly amenable to probation “ensure[s] that the defendant’s amenability to

probation distinguishes the defendant from most others and truly presents the substantial


                                              4
and compelling circumstances that are necessary to justify a departure.” Id. at 309

(quotations omitted). The district court erred by departing from the presumptive sentence

without a particular-amenability finding.

                                             II.

       The state further claims that the district court abused its discretion by granting a

dispositional departure because the facts do not establish respondent’s particular

amenability to probation. We agree. While we “afford the [district] court great discretion

in the imposition of sentences,” id. at 307-08 (quotation omitted), this court may interfere

with the district court’s decision if it failed to “carefully evaluate[] all the testimony and

information presented before making a determination.” State v. Pegel, 795 N.W.2d 251,

255 (Minn. App. 2011).

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

setting may support a dispositional departure. Soto, 855 N.W.2d at 308 (quoting State v.

Trog, 323 N.W.2d 28, 31 (Minn. 1982)).             The sentencing guidelines set forth a

“nonexclusive list” of mitigating factors that may justify a dispositional departure. Minn.

Sent. Guidelines II.D.2 (2010). Additional factors including “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” are also relevant to a determination of whether a

dispositional departure is justified. Trog, 323 N.W.2d at 31. However, the presence of one

or more mitigating factors “[does] not obligate the court to place defendant on probation

or impose a shorter term than the presumptive term.” State v. Wall, 343 N.W.2d 22, 25

(Minn. 1984).


                                              5
       Here, the district court found that “substantial and compelling reasons” justified a

dispositional departure. The district court found that respondent was amenable to treatment

and to probation, citing favorably to his “lack of a felony record at his age,” his “family

support,” and his “ability to obtain meaningful employment.” The district court also

reviewed psychosexual evaluations performed through Ramsey County Community

Corrections and concluded that respondent’s rate of recidivism was “about as low as it can

get.” However, the district court’s decision disregarded certain Trog factors and ignored

other facts in the record. Through the trial and sentencing phases, respondent did not

express remorse for his conduct. Further, the district court’s reliance on respondent’s

“ability to obtain meaningful employment” is misplaced, as the Minnesota Sentencing

Guidelines state that “[e]mployment factors” should not be used as reasons for departure

from the presumptive sentence because they are a “manipulable” factors. Minn. Sent.

Guidelines II.D.1 & cmt. II.D.101 (2010).

       Substantial and compelling circumstances are those that make a case atypical.

Taylor v. State, 670 N.W.2d 584, 587 (Minn. 2003). Although certain factors support a

dispositional departure, the record taken as a whole does not support the district court’s

decision that “substantial and compelling reasons” justify a departure from the presumptive

prison sentence in this case. Because the reasons given are improper and inadequate and

there is insufficient evidence in the record supporting a departure, see Geller, 665 N.W.2d

at 516, we determine that the district court abused its discretion, and we reverse and remand

for resentencing.




                                             6
                                             III.

       Lastly, the state relies on Soto and argues that a probationary sentence “is not

proportional to the severity of [respondent’s] offense.” See Soto, 855 N.W.2d at 313. It is

unnecessary to address the issue because we hold that the district court abused its discretion

by imposing a dispositional departure.

       Reversed and remanded.




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