This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Jason Edward Brank,



Filed June 26, 2001


Shumaker, Judge


Hennepin County District Court

File No. 00031537



Michael Hatch, Attorney General, Suite 500, 515 Park Street, St. Paul, MN 55103-2106; and


Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for appellant)


Bruce H. Hanley, Paul B. Kohls, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for respondent)


            Heard and considered by Lansing, Presiding Judge, Amundson, Judge, and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant State of Minnesota contends that the district court abused its sentencing discretion by staying a presumptively executed sentence for the crime of criminal vehicular homicide.  Because the record supports the court’s departure from the sentencing guidelines, we affirm.


            With a blood-alcohol content of 0.188%, Jason Brank drove a car at a high rate of speed along a Minneapolis street at about 1:00 a.m. on March 6, 2000.  He lost control of the car and it crashed.  His passenger, 20-year-old Amie Moland, died in the hospital from multiple injuries she sustained in the crash.

            Brank pleaded guilty to two counts of criminal vehicular homicide, the presumptive sentence for which is a 48-month commitment to the custody of the commissioner of corrections.  Alleging that he was amenable to probation, Brank moved for a dispositional departure from the presumptive sentence.

            After reviewing a presentence investigation report (PSI), a psychological evaluation of Brank, and various letters from interested people, and after listening to arguments by the attorneys, and statements by the victim’s parents, Brank’s mother, and Brank himself, the district court imposed, but stayed, the presumptive sentence, placed Brank on probation for ten years, and imposed a $10,000 fine but stayed $9,000.  As conditions of probation, the court ordered Brank to serve one year in the workhouse, to complete various programs, to have a psychiatric evaluation, to abstain from the use of unprescribed drugs and alcohol, to attend Alcoholics Anonymous, or a similar group, at least once each week, and to pay restitution.

            At the sentencing hearing, the court acknowledged that it was required to give reasons for its departure from the presumptive sentence:

Now the Guidelines are advisory, as I said.  They are not binding but reasons have to be expressed if they’re to be departed from.


            The court then discussed various factors that might be relevant to a sentencing departure.  The first was remorse.  The court noted that Brank’s apology in court appeared to be genuine:

He appeared to be remorseful.  The record can show that he was crying as he made it, and for what my evaluation of this is worth, it appeared to me to be genuine * * *.


But the court then detailed Brank’s prior history as it related to the genuineness of his remorse:

[O]n the other side of that, the presentence report and other information in the file indicates that he has, not only in this case, but repeatedly throughout his life, blamed others for various problems in this case, including the victim.  He’s blamed law enforcement officers.  He’s suggested the evidence against him was fabricated or manipulated.  He apparently has told a number of lies.  His girlfriend, who initially wrote a letter in his support, now has written another letter withdrawing that support, suggesting that he misled her.  He’s been in therapy, attended by doctors in the past, and he has not followed the directions of those doctors.  He’s missed therapy meetings, he’s stopped taking medication that was prescribed for him, and he has minimized or denied a drinking problem, and generally displayed what’s known as avoidance  and denial, which can be seen as an unwillingness to accept responsibility.

The court characterized Brank’s unwillingness to accept responsibility as “a pattern in Mr. Brank’s life in the past” and surmised that Brank probably has a deep-seated psychological problem, possibly an antisocial personality disorder as suggested in Brank’s psychological evaluation.  However, the court concluded that it could not give “much weight one way or the other” to remorse as a departure factor.

            Next, the court discussed amenability to treatment and to probation as departure factors:

The antisocial diagnosis is a negative aspect there, but a psychological report and a presentence report indicates that there is no reason at this point to assume that he’s not amenable, given the sense that he might not or that he definitely would not succeed.


Under the category of amenability to treatment or probation, the court pointed out the support Brank has from his family and in the community; his lack of prior criminal record; his age as it reflects his “judgment, capacity, amenability to treatment and the like”; the role Brank might play in caring for his mother who is being treated for cancer; and Brank’s vulnerability “in a maximum security prison sentence, both psychologically and physically * * *.”

The court gave no additional reasons for its departure but, at the conclusion of the sentencing, told Brank that an upward durational departure is justified because of Brank’s character:

If I could depart upward and give you a longer prison sentence I would, because I think you’re high risk, unless you do a great deal of learning and maturing and hurting and agonizing in the near future, because the factors I recited at first, including [his profile that indicates] somebody who is manipulative, self-centered and who cares initially and primarily about himself.  If this continues you will continue to be in trouble.  I’m hopeful that it won’t and I’m imposing the sentence I’m imposing because I think the chances of changing this aspect of you are much better if I put you into the programs that I’m ordering you into * * *.


            The probation officer who prepared the PSI stated that Brank has no remorse for his crimes and is more concerned about how his own life has been affected.  For a time, Brank insisted that Amie Moland was the driver, despite the fact that she was on the passenger side with her seatbelt fastened.  He also maintained that the police switched blood samples to set him up.  Observing that Brank has friends and family who will help him maintain a job and live in a stable environment and that Brank “does not have the criminal mentality or lifestyle,” the probation officer concluded that Brank “is amenable to probation because he is not likely to reoffend.”

            The clinical psychologist who performed Brank’s presentence psychological evaluation saw him as “an individual with a cynical outlook, who viewed himself as having been mistreated and taken advantage of by others throughout his life.”  The psychologist noted that Brank did acknowledge the possibility that he is an alcoholic, and the psychologist concluded that Brank’s “ability to benefit from any intervention efforts would be largely dependent upon his level of motivation.”

            Contending that the district court abused its discretion in departing from the sentencing guidelines, the state appeals Brank’s sentence.


            We are asked to decide whether the district court erred when it departed from the sentencing guidelines by staying a presumptively executed sentence.

            The district court enjoys broad discretion when sentencing criminals.  State v. Law, 620 N.W.2d 562, 564 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).  However, that discretion is not “a limitless grant of power,” and on appeal we must decide whether the court abused its discretion by imposing a sentence that is “unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact.”  Id. at 564-65 (quotations omitted).

            For felony sentences, the Minnesota Sentencing Guidelines circumscribe the district court’s discretion by requiring that the court give the presumptive sentence unless the court expressly identifies substantial and compelling reasons for imposing a different sentence:

The sentences provided in the Sentencing Guidelines Grid are presumed to be appropriate for every case.  The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances.  When such circumstances are present, the judge may depart from the presumptive sentence and stay or impose any sentence authorized by law.  When departing from the presumptive sentence, the court should pronounce a sentence which is proportional to the severity of the offense of conviction and the extent of the offender’s prior criminal history, and should take into substantial consideration the statement of purpose and principles [of the Sentencing Guidelines].  When departing from the presumptive sentence, a judge must provide written reasons which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence.


Minn. Sent. Guidelines II.D.

            “Although the sentencing guidelines are advisory to the district court, the court shall follow the procedures of the guidelines” when it sentences felons.  Minn. Stat. § 244.09, subd. 5(2) (2000).  And when it deviates from the guidelines, “the district court shall make written findings of fact as to the reasons for departure * * *.”  Minn. Stat. § 244.10, subd. 2 (2000).

            The reason the district court gave for its departure was Brank’s amenability to probation and treatment.  This is a reason that our supreme court has recognized as a proper basis for a downward dispositional departure:

[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.


State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (citation omitted).  Furthermore, the supreme court in Trog said that, in determining particular suitability to “individualized treatment in a probationary setting,” the district court may consider the defendant’s age, prior record, remorse, cooperation, attitude in court, and the support of friends and family.  Id.  Finally, in Trog, the supreme court noted that the district court opted for long-term probation (five years) over a short-term prison sentence (24 months) on

the belief that the chance that defendant will mend his ways and that society’s interests will be safeguarded are better if the probationary treatment approach is followed.


Id. (quoting State v. Wright, 310 N.W.2d 461, 463 (Minn. 1981)).

            Although much of the focus in a sentencing departure is on offender-characteristics, the district court must also consider whether the sentencing sanction is disproportional to the severity of the crime.  Law, 620 N.W.2d at 565 (citing State v. Behl, 573 N.W.2d 711, 714 (Minn. App. 1998)), review denied (Minn. Mar. 19, 1998).  In Law, this court acknowledged rehabilitation as a primary goal of the criminal justice system but recognized deterrence and retribution as equally important objectives.  Id. at 566.

            Beginning with the issue of the proportionality of the sentence to the severity of the crime, a reflexive conclusion might be that proportionality is principally a product of the amount of incarceration time a defendant is given.  Since Minnesota is not a capital punishment state, incarceration in prison might appear to be the ultimate criminal penalty.  But a more reflective approach compels us to consider as well various restrictions and burdens that may be imposed in a probationary setting.

            The district court imposed workhouse incarceration for one year without work release or home monitoring.  During his workhouse term, Brank must complete two rehabilitative programs and must complete a psychiatric evaluation and follow recommendations for treatment, medications, or therapy.  For ten years he must abstain from the use of alcohol or unprescribed drugs and must attend Alcoholics Anonymous or a similar group at least once each week.  He has financial obligations of restitution and a $1,000 fine.

            Brank will be under the supervision of the Hennepin County Department of Community Corrections until November 7, 2010.  Among the specific requirements and restrictions of Brank’s probation are requirements that he report to his probation officer as directed, not change his residence or employment without his probation officer’s knowledge and consent, not leave the state without his probation officer’s permission, and submit to chemical testing upon his probation officer’s demand.

            To motivate Brank to appreciate the significance of his probationary conditions, the court delivered a warning:

I’m going to instruct the probation office that if you miss one appointment with a doctor, if you’re late to one meeting of the Telesis or the Tieden Cognitive program, miss one meeting with a probation officer, I want to hear about it, I will order them to issue a violation report and we’ll be back in Court.


I want you to understand that if [I] learn that you drank one-half of one glass of beer, took one puff on one marijuana cigarette, took any controlled substance or violate any other condition of probation, the price of that is 48 months in the state penitentiary.


            To give its warning a tangible form, the court ordered Brank to have someone take a photograph of him standing in front of one of the state prisons.  The court said:

I want you to carry that picture around with you during this period of probation, and if you should even think about violating any of these terms I have imposed, I want you to first look at the picture and ask yourself if it’s worth it.


            We do not suggest that probation and probationary conditions are conceived to be additional punishment.  But from a probationer’s perspective the burdens and restrictions on his freedom of movement and choice likely have the feeling of punitive sanctions.

            Recognizing that no sanction available in the criminal justice system can adequately compensate for the loss of a life, the deprivation of an offender’s freedoms and privileges can satisfy the goals of retribution and deterrence.  If Brank were given the presumptive sentence, he would serve 32 months in prison and would be subject to supervised release for the balance of 16 months.  He then would have completed his sentence and would have no further restrictions on his lifestyle.  On probation he will serve approximately one-third as much time in jail, but he will be subject to lifestyle restrictions and the distinct possibility of a prison term if he violates the restrictions, for six years longer than if he received the presumptive prison sentence.  We do not believe that the sentence as a whole depreciates the severity of Brank’s crime.

            As to Brank’s offender-characteristics, a skeptical district court said, “I think you’re high risk, unless you do a great deal of learning and maturing and hurting and agonizing in the near future * * *.”  Despite Brank’s history, the court concluded that

I’m imposing the sentence that I’m imposing, because I think the chances of changing this aspect of you are much better if I put you into the programs that I’m ordering you into * * *.”


            The court’s findings cover the Trog factors, all of which are supported by evidence in the record.  Brank’s immaturity; his lack of a prior criminal record; his participation in AA and his acknowledgment, albeit reluctant, that he might be an alcoholic; his positive attitude at sentencing; the probation officer’s conclusions that Brank “is amenable to probation because he is not likely to reoffend”; that he has a supportive family that will help him stabilize his life; and his history of working diligently at some jobs and tasks, provide a basis for the district court properly to exercise its discretion and to depart from the presumptive sentence.

            A temptation in this case is to decline to distinguish behavior from character.  Brank has amply demonstrated that he has several negative character traits.  And the expectation that probation will cause a reversal of those traits is perhaps unrealistic.  However, it is possible that with the intervention of probation Brank will change the behavior that has brought him into the criminal justice system.  Thus, if his behavior is amenable to change, he is amenable to probation.  The district court did not abuse its discretion in staying the execution of Brank’s sentence.