This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,


Angel Hernandez,


Filed October 17, 2000


Crippen, Judge


Kandiyohi County District Court

File No. K499254



Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and


Boyd Beccue, Kandiyohi County Attorney, C.J. Crowell, First Assistant County Attorney, 316 Southwest Fourth Street, P.O. Box 1126, Willmar, MN 56201 (for appellant)


John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for respondent)


            Considered and decided by Peterson, Presiding Judge, Crippen, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Where the record contains evidence to support the decision, we will not disturb the trial court’s exercise of discretion in departing dispositionally from a presumptive sentence. 



In February 1999, respondent confronted a department-store manager and a mall security guard in Willmar.  During the altercation, respondent threatened to kill the store manager and said that he was “the leader of the Latin Kings and I can do anything I want.”  Respondent was charged with terroristic threats committed for the benefit of a gang in violation of Minn. Stat. §§ 609.713, subd. 1 and 609.229, subd. 3(a) (1998); assault in the fifth degree committed for the benefit of a gang in violation of Minn. Stat. §§ 609.224, subd. 1 and 609.229, subds. 2, 3(a) (1998); disorderly conduct committed for the benefit of a gang in violation of Minn. Stat. §§ 609.72, subd. 1 and 609.229, subds. 2, 3(b) (1998); and attempted theft in violation of Minn. Stat. §§ 609.52, subds. 2(1), 3(5), and 609.17, subd. 1 (1998).  After a two-day trial, the jury found respondent guilty on all counts.

During the sentencing hearing, the trial court received alternative recommendations, one in the pre-sentence investigation report and another presented by an independent dispositional advisor.  Under the statutory guidelines, the presumptive sentence for respondent’s offense was a 30-month commitment to the commissioner of corrections. 

The trial court determined that alternative sentencing would be more beneficial than incarceration, both to respondent and to the community.  Thus, the court stayed execution of the 30-month sentence, on numerous conditions.  Among other requirements, the sentence dictated that respondent must:

a.       pay a $635 fine, either in cash or by providing community service;

b.      abstain from all non-prescribed, mood-altering substances, and be subjected to random testing for such substances;

c.      participate in victim/offender mediation;

d.      engage in community service (in addition to any community service he might perform to pay off the fine);

e.      remain law-abiding and have no involvement in any gang activity;

f.       enroll in post-secondary education;

g.      live in a “structured organization which supports educational activity, provides structure, is not disruptive to its local community, and has principles which are law abiding in nature” while pursuing a post-secondary education;

h.      retain at least part-time employment; and

i.        undergo a five-year probation period.


Decisions to depart from the sentencing guidelines rest within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  As a reviewing court, we will not “substitute our own judgment for that of the district court” regarding sentencing matters.  State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994), review denied (Minn. Apr. 21, 1994).

The sentencing court may depart dispositionally from the sentencing guidelines if the defendant is “particularly amenable to probation or if offense-related mitigating circumstances are present.”  State v. Love, 350 N.W.2d 359, 361 (Minn. 1984).  A finding of amenability, however, is not required.  State v. McCalister, 462 N.W.2d 407, 409 (Minn. App. 1990).  The decision whether to depart dispositionally focuses “more on the defendant as an individual and on whether the presumptive sentence would be best for him and for society.”  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).  Departure should occur in only a small number of cases.  Minn. Sent. Guidelines cmt. II.D.01.

In this case, the trial court noted several factors that caused it to stay the sentence, including indications that respondent wanted to better himself, respondent understood that being affiliated with a gang was detrimental to him, and respondent seemed prepared to make a change.  The record does not contradict these observations. 

In addition, the record reveals other valid reasons for departing dispositionally.  See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (stating that if the record reflects adequate grounds for departure, the departure must be affirmed, even if the trial court’s reasons for departure were invalid).   For example, respondent expressed remorse, and the trial court commented during sentencing that respondent appeared remorseful and apologetic and that he cooperated in court.  See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (noting that defendant’s remorse and attitude in court are factors to consider when determining whether to depart dispositionally).  Furthermore, respondent enjoyed considerable support of friends, particularly evidenced by the appearance and statements of the members of the college fraternity who testified they believed respondent could turn his life around with their help.  See id.  (finding that the support of friends is a factor that may justify a dispositional departure).  Adding to the cause for a dispositional departure, the trial court carefully prescribed detailed and substantial conditions for stay of the sentence of incarceration.  See Sejnoha, 512 N.W.2d at 601 (upholding the departure in part because of the “thoroughness” of the sentencing court’s conditions of probation).

After receiving differing sentencing suggestions, it became “the grave responsibility of the sentencing court to sort out the conflicting recommendations and make a determination” regarding the most appropriate sentence.  State v. Dokken, 487 N.W.2d 914, 919-20 (Minn. App. 1992) (Harten, J., concurring specially), review denied (Minn. Sept. 30, 1992).  Appellant has not demonstrated cause for appellate interference with the trial court’s exercise of discretion; the trial court made the decision that an alternative, supervised sentencing would be best for respondent and for society, and the record permits this decision.