This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Kevin Carl Carter,


Filed November 21, 2000


Crippen, Judge


Hennepin County District Court

File No. 17047



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


Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)


William E. McGee, Fourth District Public Defender, Renée J. Bergeron, Assistant Public Defender, Suite 200, 317 Second Avenue South, Minneapolis, MN 55401 (for respondent)


            Considered and decided by Crippen, Presiding Judge, Kalitowski, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


The prosecution on appeal disputes the trial court’s sentencing, contending that the court had no substantial or compelling reason to stay execution of a five-year sentence imposed upon respondent Kevin Carl Carter for violating the felon-in-possession-of-a-firearm statute.  Although its decision is barely sustained by the record, we affirm the trial court’s downward dispositional departure because it does not constitute abuse of the court’s broad sentencing discretion.




The material facts in this case are undisputed.  In February 2000, responding to a call, Minneapolis police found respondent sleeping in the hallway of an apartment building with a blanket near him.  When police woke up respondent and asked him what he had in the blanket, respondent told them he had a rifle—an unloaded Chinese assault rifle.  Respondent had no magazines or ammunition for the rifle.

Respondent told police that he had purchased the rifle on the street for forty dollars from two men who said the rifle was “missing a clip,” making the gun inoperable at the time.  Respondent wrapped the rifle in a blanket and took it to the home of a man named Black, who respondent said would be able to help him with the gun.  He planned to get the rifle “fixed” so that he could sell it to buy drugs; he stated that had no plans to use the rifle to injure or threaten anyone.  Black was not at home, so respondent sat down in the hallway to wait for him and fell asleep.  Respondent was high on cocaine at the time.

            Police arrested respondent and later determined that he had a prior felony conviction for a controlled-substance offense.  Respondent was charged with one count of felon in possession of a firearm, in violation of Minn. Stat. § 609.165, subd. 1b (1998).  The presumptive sentence for this offense is a five-year executed term of imprisonment.  Minn. Stat. § 609.11, subd. 5(b) (1998).

            On April 26, 2000, the trial court imposed the mandatory minimum of five years, but stayed execution of respondent’s sentence and placed him on probation for five years under the conditions that appellant:

·        serve one year in Hennepin County Adult Corrections;

·        abstain from drug, alcohol, and chemical use;

·        be subjected to random drug and alcohol testing;

·        remain law abiding; and

·        not use or possess firearms.

 In justifying the departure, the trial court focused on respondent’s cooperation with the investigating officers and the lack of evidence suggesting that respondent was using, or intended to use, the rifle as a weapon. 



Sentencing decisions rest within the broad discretion of the trial court and will not be reversed absent a clear abuse of that discretion.  State v. Larson, 473 N.W.2d 907, 908 (Minn. App. 1991).  The reviewing court will not substitute its own judgment for that of the trial 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).  Although a finding of amenability is an important factor in justifying dispositional departures, it is not a prerequisite.  State v. McCalister, 462 N.W.2d 407, 409 (Minn. App. 1990).  The decision to depart focuses more on the individual and on whether the presumptive sentence would be best for the defendant and society.  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).  

Citing respondent’s cooperation and the trial court’s assessment of his culpability, the court employed appropriate considerations to explain its dispositional departure.  See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (stating numerous factors are relevant in determining whether a defendant is suitable to individualized treatment in a probationary setting, including cooperation with police, attitude while in court, and the support of family and friends); see also Heywood, 338 N.W.2d at 243-44 (upholding dispositional departure where role of defendant was more passive than that of others and where none of the victims was seriously injured).

Also, although the record includes no compelling evidence of appellant’s amenability to probation, the trial court’s exercise of discretion is supported by its determination of stay conditions that are clearly calculated to guarantee either a successful rehabilitation or a full execution of the requisite sentence.  See Sejnoha, 512 N.W.2d at 601 (upholding departure in part because of the “thoroughness” of the trial court’s conditions of probation).

The state contends that this dispositional departure is particularly inappropriate because the statute prohibiting a felon from possessing a firearm does not require a showing of intent to use the firearm.  The state imagines a variety of injustices associated with a departure on these grounds, but its concerns do not demonstrate reversible error.  The issue before us is not the development of a blanket rule allowing stays of execution on all sentences for violators of the firearm statute, but instead the breadth of discretion afforded the trial court in sentencing one individual.



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