This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Mark Everett Pierce,



Filed April 23, 2002

Affirmed; motion granted

Harten, Judge


St. Louis County District Court

File No. K8-01-300540


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


Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Room 501, Duluth, MN 55802-1298; and


Brian D. Simonson, Assistant County Attorney, 1810-12th Avenue East, 107 D Courthouse, Hibbing, MN 55746 (for appellant)


David J. Malban, 425 Providence Building, 332 West Superior Street, Duluth, MN 55802 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N




The state appeals from district court sentences imposed for first-degree burglary, felony fifth-degree assault, and fleeing police in a motor vehicle, arguing that the district court abused its discretion in granting a downward dispositional departure and staying execution of the sentences.  The state argues that respondent, who had a felony record and had already failed on probation, was not amenable to probation.  It also argues that the district court erroneously relied on respondent’s admission to a treatment program despite a recommendation against probation in the pre-sentence investigation.  Because there is evidence in the record to support the departure, we affirm.



In April 2001, respondent Mark Everett Pierce broke into the Hibbing home of his ex-girlfriend, Destani Baber.  Baber reported to police that respondent was intoxicated and refused to leave.  When respondent was not looking, Baber left the residence through the back door.  Respondent pursued her and pushed her to the ground.  He kicked her, grabbed her wrists, and threw a beer bottle at her.  Respondent then drove away in his Pontiac Grand Am.

            Baber then spoke with her friend, John Tardy.  Tardy telephoned respondent and they arranged to meet in Hibbing.  Soon after, a Hibbing police officer observed a Grand Am and a GMC truck traveling at a high rate of speed.  He activated his lights and siren and pursued the vehicles.  The truck, containing Tardy and Baber, stopped, but the Grand Am driven by respondent, continued.  Tardy and Baber told the officer that respondent was the driver of the Grand Am.  Respondent was later charged by complaint with five felonies.   

Respondent pled guilty to one count of burglary in the first degree, fleeing a police officer in a motor vehicle, and felony assault in the fifth degree; he also admitted a probation violation.   He sought admission into the Minnesota Teen Challenge Program (the Program), a “Christian residential rehabilitative program for individuals who struggle with alcohol, drugs, violence, pornography, and other life controlling problems.”  In order to enter the Program, the entrant must (1) have a chemical dependency problem; (2) not have a serious mental illness; and (3) not be a level-three registered sex offender.  

The pre-sentence investigation report (PSI) recommended that respondent not be placed in the Program.  It noted respondent’s three prior 1999 felonies for fleeing a police officer, burglary in the first degree, and escape from custody.  Respondent also had two 1998 domestic assault misdemeanors, a probation violation, and a 1999 fifth-degree assault misdemeanor.  One of the assaults was for forced entry into the home of an ex-girlfriend.  The PSI further noted that respondent had violated his terms of probation and had failed to complete aftercare treatment for chemical dependency.   

The district court ordered an upward durational departure and sentenced respondent consecutively to 60 months for first-degree burglary and one year and one day for fleeing a police officer.  It also sentenced respondent concurrently to 30 months for fifth-degree felony assault.  The district court ordered a downward dispositional departure on all three counts, placing respondent on five years’ probation.  The conditions of respondent’s probation included a nine-month jail sentence (with credit for time already served) and successful completion of the Program.  The district court noted the past success of the Program and that respondent had severe consequences “hanging over [his] head” if he did not successfully complete it.  The district court’s departure report listed “amenable to Teen Challenge Program” as a reason for the dispositional departure.  The state appealed. [1]


The decision to depart from the sentencing guidelines is within the district court’s discretion and will not be reversed absent a clear abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  This standard is not a limitless grant of power.  State v. Myers, 627 N.W.2d 58, 62 (Minn. 2001).  The district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” to warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  But, “[a]ppellate courts do not generally interfere with a district court’s decision to depart downward.”  State v. Gebeck, 635 N.W.2d 385, 389  (Minn. App. 2001) (citation omitted).

            A downward dispositional departure may be ordered if a defendant is “particularly amenable to probation or if offense-related mitigating circumstances are present.”  State v. Donnay, 600 N.W.2d 471, 473-74 (Minn. App. 1999) (quotation omitted), review denied (Minn. 17 Nov. 1999).  The state argues that the district court abused its discretion because the record did not show that respondent was amenable to probation. The state correctly asserts that no professional opinion supported the district court’s finding of amenability.  The requirements for admission to the Program do not by themselves suggest that respondent is amenable to probation, and the only report submitted, the PSI, recommended that respondent be sentenced according to the guidelines. 

            The district court noted that because of the upward durational departure granted on the burglary charge and because no credit would be given for time at the Program, respondent had substantial incentive to successfully complete the Program.  We have recognized the use of probation as leverage to assure treatment as a factor supporting a district court’s decision to depart dispositionally.  See Gebeck, 635 N.W.2d at 390 (court did not abuse its discretion in granting a dispositional departure because probation provided “greater leverage to assure [appellant’s] success and the public safety”); State v. Dokken, 487 N.W.2d 914, 918 (Minn. App. 1992) (noting that probation provided respondent an incentive to complete treatment).  The district court clearly intended that respondent either successfully complete treatment or serve a full sentence.

            Additionally, caselaw indicates that, even if the reasons given by the district court are insufficient, a departure should be affirmed if the record reflects adequate supporting grounds.  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).  We examine a number of factors to determine whether a defendant is amenable to probation, including age, prior record, remorse, cooperation, attitude while in court, and support of family or friends.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). 

At his sentencing, respondent showed remorse by recognizing that what he did was wrong.  See State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (“remorse * * * is most relevant in sentencing for crimes against the person or * * * affecting the safety of others”), review denied (Minn. 27 Oct. 1994).  Respondent is only 21 years old.  Respondent was also cooperative, providing information to the district court about the Program, expressing his desire to be admitted into the Program and consenting to the terms of his probation.  Respondent had family support as evidenced by his mother’s letter to the district court asking that her son be placed in the Program.

We recognize that respondent has an extensive criminal history.  But we have affirmed a district court’s dispositional departure even when a defendant has a prior record if other factors support amenability.  See Gebeck, 635 N.W.2d at 386, 390 (court upheld downward dispositional departure on sentencing for criminal vehicular homicide even though appellant had a prior DWI offense and two driving after license revocation offenses).   

Because the record supports respondent’s amenability to a probationary arrangement that contains significant jail time and is designed to ensure that he obtains treatment, we conclude that the district court did not abuse its discretion in granting respondent a downward dispositional sentencing departure. 

Affirmed; motion granted.

[1] Appellant filed a motion to strike portions of respondent’s brief and appendix as pertaining to matters outside the record including a conversation between respondent and Baber, a letter from the assistant dean of the Program, and a report from a corrections counselor.  The record on appeal includes the papers filed in the district court and the transcript of the proceedings.  Minn. R. Crim. P. 28.02 subd. 8 (2000).  Because these items were not filed with the district court and are not mentioned in the transcript, we grant appellant’s motion to strike.