                        This opinion will be unpublished and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
                                   A15-1889

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                                Ammanuel Ray Jones,
                                    Appellant

                                 Filed August 8, 2016
                                       Affirmed
                                    Worke, Judge

                            Fillmore County District Court
                                File No. 23-CR-14-361

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

Brett A. Corson, Fillmore County Attorney, Preston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Smith, Tracy M., Presiding Judge; Worke, Judge; and

Smith, John, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                           UNPUBLISHED OPINION

WORKE, Judge

       Appellant challenges his conviction of first-degree criminal sexual conduct,

arguing that the district court failed to waive the requirement for a psychosexual

evaluation and abused its discretion by denying appellant a downward dispositional

departure. We affirm.

                                          FACTS

       On May 9, 2014, appellant Ammanuel Ray Jones was living with his then-fiancée

whose nieces and nephews were visiting for the night. The children had friends spending

the night with them, including 11-year-old S.L.B. While S.L.B. slept on the couch in the

living room, Jones lay on the floor next to the couch, put his hands in S.L.B.’s pants, and

penetrated her vagina with his finger. Jones was charged with first- and second-degree

criminal sexual conduct.

       In October 2014, Jones was charged with third-degree criminal sexual conduct—

victim mentally impaired/helpless. This matter involved a different victim. At a pretrial

hearing, Jones’s attorney indicated that the parties were attempting to settle both matters

because the two separate criminal-sexual-conduct cases presented the potential of Jones

receiving mandatory lifetime conditional release.†

       On June 22, 2015, Jones pleaded guilty to first-degree criminal sexual conduct—

victim under 13 years of age, penetration—in violation of Minn. Stat. § 609.342, subd.

†
  See State v. Nodes, 863 N.W.2d 77 (Minn. 2015) (holding that “the first of two
convictions entered at same hearing, but arising from separate behavioral incidents, was a
‘prior sex offense conviction,’ subjecting [the] defendant to lifetime conditional release”).

                                             2
1(a) (2012). Jones entered a Norgaard plea‡, claiming that he was intoxicated at the time

of the offense and did not know what he was doing. The state agreed to dismiss the

remaining charge in the complaint and the criminal-sexual-conduct charge from October

2014. The only agreement regarding sentencing was that Jones was not subject to an

aggravated sentence. After the guilty plea was accepted, Jones’s attorney requested that

the district court “require” a psychosexual evaluation be completed as part of the

presentence investigation (PSI) because court services is generally unwilling to do one

when the presumptive sentence is a prison sentence. The district court agreed to order the

evaluation.

       On August 12, 2015, the PSI was completed. It noted that, despite acknowledging

his “significant addiction to alcohol,” Jones had not done a chemical-dependency

evaluation. Additionally, while Jones reported interest in inpatient care for his alcohol

abuse, there was no indication that he had been accepted into a program. The PSI

indicated that (1) Jones was not particularly amenable to probation, (2) there were no

compelling or substantial circumstances distinguishing Jones from other offenders,

(3) Jones should not be considered for a downward departure, and (4) Jones presented a

high risk for recidivism.    It was recommended that Jones receive the presumptive

sentence of 144 months in prison. Court services did not complete a psychosexual



‡
  “A plea constitutes a Norgaard plea if the defendant asserts an absence of memory on
the essential elements of the offense but pleads guilty because the record establishes, and
[he] reasonably believes, that the state has sufficient evidence to obtain a conviction.”
Williams v. State, 760 N.W.2d 8, 12 (Minn. App. 2009), review denied (Minn. Apr. 21,
2009).

                                            3
evaluation. The PSI noted that Jones would be offered a psychosexual evaluation and

sex-offender treatment while incarcerated.

       At the sentencing hearing, Jones’s attorney requested a continuance in order for

Jones to complete a psychosexual evaluation because it might show that Jones is suitable

for a downward dispositional departure.       Jones’s attorney argued that Jones should

receive a departure because he had no prior criminal record, had a history of being

victimized, had no disciplinary problems while incarcerated awaiting disposition of the

matter, participated in a large number of programs, was involved with the ministry, was

involved in AA, and sought programming for alcohol and chemical-dependency issues.

But the district court stated:

              [T]he statute [Minn. Stat. § 609.342, subd. 1(a)] under which
              [Jones] entered his plea of guilty . . . [provides] that unless a
              longer mandatory minimum sentence is otherwise required by
              law or the sentencing guidelines provide for a longer
              presumptive executed sentence, the [c]ourt shall presume that
              an executed sentence of 144 months must be imposed . . . . So
              the [c]ourt, in reviewing that statute, would indicate that to
              mean that the [c]ourt is to impose . . . the 144 months.

The district court sentenced Jones to 144 months in prison. This appeal follows.

                                     DECISION

Psychosexual evaluation

       Jones first argues that the district court failed to either ensure that he completed a

psychosexual evaluation or waive the evaluation requirement.

                     When a person is convicted of a sex offense, the court
              shall order an independent professional assessment of the
              offender’s need for sex offender treatment to be completed
              before sentencing. The court may waive the assessment if:


                                             4
              (1) the Sentencing Guidelines provide a presumptive prison
              sentence for the offender, or (2) an adequate assessment was
              conducted prior to the conviction.

Minn. Stat. § 609.3457, subd. 1 (2012). Jones claims that the district court failed to

explicitly waive the assessment. Statutory interpretation is a question of law, which an

appellate court reviews de novo. State v. Jones, 848 N.W.2d 528, 535 (Minn. 2014).

       There is nothing in the statute prescribing the manner in which a district court

waives an assessment. Likewise, there is nothing in the statute requiring the district court

to make findings that support its waiver of the assessment requirement. Jones cites no

caselaw instructing on the manner in which a district court may waive the assessment

requirement. And there is no requirement that an assessment be done prior to sentencing

when the guidelines provide for a presumptive prison sentence.

       The statute provides only that the district court may waive the assessment if the

guidelines provide a presumptive prison sentence. Jones’s presumptive sentence was 144

months in prison. The PSI noted that Jones will be offered a psychosexual evaluation and

sex-offender treatment while incarcerated.       The district court implicitly waived the

assessment requirement when it imposed the prison sentence.

       Jones claims that the psychosexual evaluation was necessary to determine whether

he was amenable to probation. But the PSI indicated that he was not amenable to

probation. Additionally, Jones was aware that court services was unwilling to do a

psychosexual evaluation when the presumptive sentence was a prison sentence. Jones

knew that a psychosexual evaluation was not completed and there was nothing preventing

him from obtaining his own. See State v. Engebretson, No. A14-0717, 2015 WL 46520,


                                             5
at *1 (Minn. App. Jan. 5, 2015) (stating that the defendant who moved for a downward

dispositional departure presented the results of a psychosexual evaluation, which was

performed by an evaluator from a consulting group at the request of his attorney), review

denied (Minn. Mar. 17, 2015). Because the statute does not mandate the manner in

which a district court is to waive a psychosexual assessment, the district court did not err.

Sentence

       Jones also argues that the district court abused its discretion by imposing the

presumptive sentence because it did so after misconstruing a statute’s penalty provision.

       A district court must impose the presumptive sentence unless the case involves

“identifiable, substantial, and compelling circumstances” that warrant a departure. Minn.

Sent. Guidelines 2.D.1 (2012).      Substantial and compelling circumstances are those

which “make the facts of a particular case different from a typical case.” State v. Peake,

366 N.W.2d 299, 301 (Minn. 1985).          The decision to depart from the presumptive

sentence is within the district court’s discretion and an appellate court will not reverse

absent a clear abuse of that discretion. State v. Stanke, 764 N.W.2d 824, 827 (Minn.

2009). Only a “rare case” warrants reversal of the district court’s decision to decline to

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

       In imposing the presumptive 144-month prison sentence, the district court relied

on Minn. Stat. § 609.342, subd. 2(b) (2012):

                     Unless a longer mandatory minimum sentence is
              otherwise required by law or the Sentencing Guidelines
              provide for a longer presumptive executed sentence, the court
              shall presume that an executed sentence of 144 months must
              be imposed on an offender convicted of violating this section.


                                               6
              Sentencing a person in a manner other than that described in
              this paragraph is a departure from the Sentencing Guidelines.

Jones claims that the district court “misconstrued” the statute by concluding that it was

“bound” to impose the presumptive sentence.

       The district court stated that the statute indicated that it “is to impose . . . the 144

months.” A district court must impose the presumptive sentence unless “identifiable,

substantial, and compelling circumstances” warrant a departure. Minn. Sent. Guidelines

2.D.1. Thus, the district court was correct. Further, the district court is not required to

explain its reasons for imposing a presumptive sentence. State v. Van Ruler, 378 N.W.2d

77, 80 (Minn. App. 1985).

       Jones claims that the district court should have granted a departure. However,

Jones did not even move for a departure. At sentencing, Jones’s attorney conceded that

he did not move for a downward departure because he could not make an argument to

support a departure without a psychosexual evaluation.

       Jones and his attorney made arguments at sentencing that allegedly supported a

downward departure, including that Jones had no criminal record, had a history of being

victimized, was traumatized by his uncle’s death prior to the offense, was under the

influence and sleep deprived when he committed the offense, had no disciplinary

problems while incarcerated, participated in programs and received certificates, and has

community support.      But the district court was also aware that Jones had another

criminal-sexual-conduct case involving another victim that was dismissed as part of the

plea agreement. And the PSI indicted that (1) Jones was not particularly amenable to



                                              7
probation, (2) there were no compelling or substantial circumstances distinguishing Jones

from other offenders, (3) Jones should not be considered for a downward departure, and

(4) Jones presents a high risk for recidivism.     The district court did not abuse its

discretion by imposing the presumptive sentence.

      Affirmed.




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