                        This opinion will be unpublished and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
                                   A13-1800

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                              Kanishka Shereal Molina,
                                     Appellant.

                                Filed August 4, 2014
                                      Affirmed
                                    Smith, Judge

                            Olmsted County District Court
                              File No. 55-CR-11-4442

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, Chelsie M. Willett, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Smith, Presiding Judge; Halbrooks, Judge; and

Hudson, Judge.
                         UNPUBLISHED OPINION

SMITH, Judge

       We affirm appellant’s presumptive guidelines sentence for her conviction of first-

degree assault because the district court considered circumstances for and against a

downward dispositional departure.

                                          FACTS

       On December 21, 2010, approximately two weeks before her twentieth birthday,

appellant Kanishka Shereal Molina gave birth to her fourth and fifth children, premature

twins. The twins stayed in the hospital for about one month, then moved home with

Molina, their father, and their older siblings.      Molina was the children’s primary

caregiver and, to assist with the situation, she was offered in-home services by a nurse

and a social worker; the record does not establish whether Molina ever utilized these

services.

       On May 1, 2011, Molina brought one of the twins to the hospital, seeking medical

attention for his arm.    During the medical examination that followed, hospital staff

discovered an acute fracture in the infant’s arm, as well as several healing fractures in his

arms and legs. Hospital staff contacted police, who responded and went to Molina’s

home. There, officers observed small bruises on the other twin’s face. A subsequent

medical examination revealed acute fractures in the second infant’s clavicle and jaw, and

healing fractures in her ribs and leg.




                                             2
       On June 27, 2011, respondent State of Minnesota charged Molina with two counts

of first-degree assault and two counts of third-degree assault.1 On March 14, 2013, under

the terms of a plea agreement, Molina entered an Alford plea2 of guilty to an amended

count of first-degree assault, with both twins as victims, and the other counts were

dismissed. Molina moved for a downward dispositional departure. The state agreed that

if community corrections found Molina amenable to probation and recommended a

downward dispositional departure, it would support the departure; if these conditions

were not met, it would seek a guidelines sentence. The district court accepted Molina’s

plea and ordered a presentence investigation (PSI).

       The PSI report prepared by community corrections found that Molina is not

amenable to probation and recommended a presumptive guidelines sentence of 86

months’ imprisonment.3 Molina sought a second opinion from a “dispositional advisor,”

who prepared a written recommendation on her behalf. At sentencing, the district court

questioned a community corrections representative about the dispositional advisor’s

report. The representative testified that community corrections received the report and,

after careful reconsideration, decided not to change the PSI report’s recommendation.


1
  Subsequently, Molina voluntarily terminated her parental rights to all five children.
2
  An Alford plea permits a district court to accept a guilty plea even though the defendant
maintains his or her innocence if the district court examines the factual basis of the guilty
plea and concludes through a colloquy with the defendant that there is “evidence [that]
would support a jury verdict of guilty, and that the plea is voluntarily, knowingly, and
understandingly entered.” State v. Goulette, 258 N.W.2d 758, 761 (Minn. 1977); accord
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970).
3
   We note that although it did not recommend an upward departure, community
corrections found two aggravating factors: the victims were particularly vulnerable and
were treated with particular cruelty.

                                             3
After hearing argument from both sides and receiving exhibits from the state, the district

court determined that there were no “substantial or compelling reasons to depart from the

sentencing guidelines” and sentenced Molina to the presumptive guidelines sentence of

86 months’ imprisonment.

                                     DECISION

       Molina argues that the district court abused its discretion by imposing the

presumptive guidelines sentence of 86 months’ imprisonment when there are substantial

and compelling mitigating factors warranting a dispositional departure. In particular,

Molina asserts that the district court failed to consider the requisite factors regarding her

amenability to probation.

       We review a district court’s sentencing decision for an abuse of discretion and will

not interfere “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); see also State v. Franklin, 604 N.W.2d 79, 82

(Minn. 2000). “[I]t would be a rare case which would warrant reversal” of a presumptive

sentence, State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981), and appellate courts should

modify presumptive sentences only under “compelling circumstances,” State v. Freyer,

328 N.W.2d 140, 142 (Minn. 1982).

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

guidelines unless substantial and compelling circumstances warrant a departure.” State v.

Pegel, 795 N.W.2d 251, 253 (Minn. App. 2011). Generally, durational departures must

be supported by offense-related factors, while dispositional departures can be supported


                                             4
by offender-related factors. See State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995)

(stating that “the offender-related factor of particular unamenability to [probation] may be

used to justify a dispositional departure” but that “offense-related aggravating factors may

be used to support” both dispositional and durational departures); State v. Heywood, 338

N.W.2d 243, 244 (Minn. 1983) (stating that when considering “only a dispositional

departure, the [district] court can focus more on the defendant as an individual and on

whether the presumptive sentence would be best for [the defendant] and for society”).

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

setting will justify” a downward dispositional departure. State v. Trog, 323 N.W.2d 28,

31 (Minn. 1982).

       Molina asserts that she “should be placed on probation” because the district court

failed to address the Trog factors, and she “was an excellent candidate for probation.” In

Trog, the supreme court stated that “[n]umerous factors, including the defendant’s age,

[her] prior record, [her] remorse, [her] cooperation, [her] attitude while in court, and the

support of friends and/or family, are relevant” to determining whether a dispositional

departure is justified. Id. But we have explicitly held that when the district court elects

not to depart, it need not discuss the Trog factors. Pegel, 795 N.W.2d at 254. Rather,

when imposing a presumptive sentence, the district court must “deliberately consider[]

circumstances for and against departure and exercise[] its discretion.” Id.

       Here, before imposing sentence, the district court heard information from a

community corrections representative and argument from both attorneys. It then stated:




                                             5
                     I am not going to find any substantial or compelling
             reasons to depart from the sentencing guidelines in this case.
                     I have several comments I want to make.
                     I’m not sure that this incident isn’t likely to reoccur
             based upon everything that I have read, including your desire
             to have more children in the future. You pled guilty to this
             offense at the last opportunity and you take nominal
             responsibility for your behavior; in fact, blaming others for
             the injuries to the twins. This was a pattern of abuse over
             time, violence towards these infants who were particularly
             vulnerable. It is not one of the cases as cited by [defense
             counsel] where there is a moment of rage or a moment of
             poor judgment. This was abuse over time and during a period
             of time where you were offered voluntary services from
             public health and social services to help you with your
             situation with your twins. Mayo Clinic understood that you
             had your hands full and, in fact, wanted to provide you with
             those services. You did not access those services and did not
             access medical care for those twins as they needed it.

      Because the record demonstrates that the district court carefully considered

circumstances for and against departure and deliberately exercised its discretion when

denying Molina’s departure motion, the district court did not abuse its discretion by

imposing the presumptive guidelines sentence.

      Affirmed.




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