This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Jason Richard Reese,



Filed March 29, 2005

Crippen, Judge


Hennepin County District Court

File No. 04000110


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


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


Joseph P. Tamburino, 525 Lumber Exchange Building, 10 South 5th Street, Minneapolis, MN  55402 (for respondent)


Bruce W. Larson, Law Office of Bruce W. Larson, 746 Mill Street, Wayzata, MN  55391 (for amicus Minnesotans for Safe Driving)


Kristen L. Rebers-Rice, 319 Barry Avenue So., P.O. Box 597, Wayzata, MN  55391 (for amicus Mothers Against Drunk Driving)


            Considered and decided by Minge, Presiding Judge, Wright, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from the district court’s sentence for criminal vehicular homicide, the state argues that the court abused its discretion in granting respondent a downward dispositional departure.  The state asserts that (1) the record did not show that respondent, who was on probation for careless driving at the time of the offense, was amenable to probation, and (2) premising the probationary sentence on respondent’s participation in programs sponsoring talks warning against drunk driving, without the input of the program sponsors and despite respondent’s record, is contrary to public policy.  Because the district court determination was premised on lawful considerations and within the lawful parameters of its discretion, we affirm.


            On December 30, 2003, respondent Jason Reese had drinks with friends.  Because he felt he was “okay” to drive home, respondent got into his vehicle and drove north on Interstate 494.  Traveling at a high rate of speed, respondent weaved in and out of traffic, and eventually lost control of his vehicle and struck the median.  Respondent’s vehicle then became airborne, crossed the median, and struck multiple vehicles that were driving southbound on Interstate 494.  Jon Niemann, a Scott County Sheriff’s Deputy who was off duty at the time of the accident, was the driver of one of the vehicles that was struck by respondent’s car.  Niemann died at the scene from injuries resulting from the collision.  A blood sample taken from respondent revealed an alcohol concentration of .13.  Respondent was subsequently charged with three counts of criminal vehicular homicide. 

            In April 2004, respondent pleaded guilty to one count of criminal vehicular homicide in violation of Minn. Stat. § 609.21, subd. 1(4) (2002).  Respondent subsequently moved for a downward departure from the presumptive sentence of 48 months in prison, but the state opposed the motion and requested that respondent be sentenced in accordance with the sentencing guidelines. 

            A sentencing hearing was held in June 2004, and the district court heard extensive testimony from Niemann’s family, friends, and numerous contacts in his community.  Although respondent was on probation for careless driving when the current offense was committed,[1] the court sentenced him to a downward dispositional departure, staying execution of the presumptive 48-month sentence.  The court found respondent particularly amenable to probation because of “his youth, his lack of prior alcohol-related offenses, his level of remorse as well as his low risk to re-offend as well as his insight to use his experience to help others by showing how his acts have caused such sorrow to the family of Jon Niemann.”  The court conditioned the stay on respondent serving one year in the county correctional facility, making restitution, having no misdemeanor traffic violations, following the conditions of an alcohol assessment, using no alcohol for a period of four years, and being subject to random urine analysis and breathalyzer testing.  The court also stayed the sentence on the condition that respondent spend three years participating “once each month in education classes through Minnesotans for Safe Driving or M.A.D.D. or other groups approved by Probation by telling the story of the devastating consequences of drinking and driving.”


            The sentencing court “has broad discretion to depart only if aggravating or mitigating circumstances are present.”  State v. Best, 449 N.W.2d 426, 427 (Minn. 1989) (emphasis omitted).  If such circumstances are present, an appellate court reviews a sentencing court’s departure decision for an abuse of discretion.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  The district court may depart based on amenability to probation alone or based on the non-exclusive list of mitigating factors contained in the sentencing guidelines.  State v. Donnay, 600 N.W.2d 471, 473-74 (Minn. App. 1999), review denied (Minn. Nov. 17, 1999); Minn. Sent. Guidelines II.D.2.  An appellate court generally does not interfere with the district court’s decision to depart downward.  Donnay, 600 N.W.2d at 473.

            We are mindful as we address this standard of review that this is a case in which evidence shows deep trauma suffered by others due to respondent’s criminal act.  This being said and fully appreciated, we proceed as we must, guided by the standards of review that require marked deference to the judgment of the district court.  Our adherence to the rule of law in this case is greatly enabled by recognition of what is highly evident, that the district court in this case engaged in a thorough and sensitive effort to deliberate on all sentencing considerations. 

            1.         Substantial and Compelling Circumstances

            The state contends that the district court abused its discretion in sentencing respondent to a downward departure because there were no substantial and compelling reasons justifying the departure.  This court must examine the record to determine whether it supports the district court’s stated reasons for a departure.  State v. Sebasky, 547 N.W.2d 93, 100 (Minn. App. 1996), review denied (Minn. June 19, 1996).  In cases where the district court did not give sufficient reasons for its findings, we must affirm a departure if the record supports one.  See Donnay, 600 N.W.2d at 474 (finding that the record supported the district court’s determination that the defendant was amenable to probation despite the state’s argument that the district court failed to provide sufficient reasons for its determination).

            Several general factors are used to determine a defendant’s amenability to probation, including the defendant’s age, prior record, remorse, cooperation, attitude while in court, as well as the support from friends or family.  Id.  The factors are not applied mechanically, but on the individual facts of each case.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  When considering a dispositional departure, a sentencing court may focus on the defendant as an individual and whether the presumptive sentence would be best for him and for society.  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).

            It is well settled that remorse is relevant to a dispositional departure.  See State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994); see also State v. Sejnoha, 512 N.W.2d 597, 600 (Minn. App. 1994) (affirming the downward dispositional departure of a sex offender evaluated as amenable to treatment and displaying extreme remorse), review denied (Minn. Apr. 21, 1994).  Here, at the time respondent entered his guilty plea, he addressed the district court and the Niemann family by stating:

I am sincerely sorry for all the pain and suffering I have caused and the lives I have affected.  There is not a day that goes by that I don’t think about you all and all that I have taken from you.  It is hard even to try to sleep at night and when I do, I wake up sick to my stomach at what has happened.  There is nothing that I can say – sorry – there is nothing I can say or do to express the sorrow that I feel for you.  I wish to God I could take that terrible day back, and I would give anything to change the outcome and my actions and decision to drive that night.  I am so sorry.


The presentence investigation report and a psychological evaluation also indicate that respondent demonstrated a great deal of remorse.[2]  In reaching its decision, the district court recognized respondent’s level of remorse by stating:  “Nothing I can do today can punish [respondent] more than he is punishing himself with his nightmares, his depression, his total despair for the senseless loss of Jon Niemann’s life.”

            The district court also examined other circumstances bearing on respondent’s motion for departure.  See State v. Malinski, 353 N.W.2d 207, 209 (Minn. App. 1984) (stating that the substantial and compelling circumstances justifying a departure by staying a sentence include a finding that a defendant is particularly amendable to correction on probation), review denied (Minn. Oct. 16, 1984).  In sentencing respondent, the court stated:  “I must take into the account the factors that have been brought out by the report from the Probation Department, the psychological evaluation, [respondent’s] history, his lack of any prior offense, and his amenability to probation.”  The court found respondent particularly amendable to probation because of “his youth, his lack of prior alcohol related offenses, his level of remorse as well as his low risk to re-offend as well as his insight to use his experience to help others by showing how his acts have caused such sorrow to the family of Jon Niemann.”  Because the record supports the district court’s finding that respondent was particularly amenable to probation, the court did not abuse its discretion in sentencing respondent to a downward dispositional departure.

            2.         Respondent’s “Educational” Role

            The state also contends that the “linchpin” of the sentence is the agreement that respondent will give educational talks on the dangers of drinking and driving.  But the state asserts that the very idea is subject to an agreement with education sponsors, and there is no such agreement.  The state points out that respondent’s argument at sentencing was that if he was sentenced to prison, the offer to give talks regarding the consequences of drunk driving would not be on the table.  Thus, the state argues that the district court obtained respondent’s promise to give “drunk driving has serious consequences” talks at the price of reducing his sentence for drunk driving from prison to probation.

            But the record does not show that the agreement is the “linchpin” of the sentence.  As previously reviewed, the district court set out several factors justifying the downward departure, and the record supports the court’s findings.  There is no error in the court’s demand for respondent’s educational efforts or the court’s allusions to this matter in the course of its weighing of the multiple factors affecting the departure issue. 

            3.         Victim Concern

            The state argues that the district court’s sentence disregards the victim’s wishes, the seriousness of the misconduct, and the fact that respondent was on probation at the time of the accident.  It is evident that the court was aware of respondent’s probationary status when it made its findings, and respondent’s probationary status was one of the factors the court weighed when it sentenced him.  And the court specifically referenced the statements made by the victim’s family and friends, including Niemann’s memory book and the accompanying video.  The record further reflects, as stated earlier in this opinion, that the court spent a great deal of time in conscientiously reviewing sentencing evidence, partly suggested by the following statement of the court at the sentencing hearing:

            For 22 years I have sat on the bench.  I have had to make difficult and at times painful decisions about children and who will raise them.  I have sentenced people and I have seen the devastation that has occurred to their victims.  However, this has been one of the most difficult decisions I have had to make.


There is no evidence that the district court overlooked the victim’s interests or the seriousness of the misconduct.  Nor, as has been said, can these concerns prompt this court to disregard the standards of law provided for departures. 

4.         Fairness

            The state argues that respondent’s sentence is unfair because it favors certain individuals over others who may be penalized under the same statute.  But the district court’s decision properly rests upon respondent’s amenability to probation.  There is no indication that the court singled out this individual for reasons other than the factors set forth by law regarding amenability to probation.  See Donnay, 600 N.W.2d at 473-74.

5.         Legislative Intent

            Finally, the state contends that this sentence upsets the impact of statutory law designed by the legislature, where half, or even more, of defendants convicted under the statute are not given the presumptive sentence. 

In 1994, legislation was passed directing the Minnesota Sentencing Guidelines Commission to “modify the sentencing guidelines by ranking violations of section 609.21 subdivisions 1, clauses (3) and (4); and 3, clauses (3) and (4), (criminal vehicular homicide) in severity level VII of the sentencing guidelines grid.”  1994 Minn. Laws ch. 615, § 27.  The legislature has made its will clear in its definition of the crime and the sentence that felony treatment is expected for this form of unintentional homicide.  And the legislature expects the guidelines will support uniformity in sentencing.  That being said, the 1994 enactment does not mandate any steps that alter the formula for dispositional departures provided in the sentencing guidelines.  Because the law allows for a dispositional departure when substantial mitigating circumstances are present, respondent’s sentence does not conflict with the legislative intent of the statute.  


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

[1] On March 12, 2003, respondent was cited for careless driving.  While attempting to pass a snowplow, respondent pulled his vehicle in between two snowplows and struck one of them.  Respondent pleaded guilty to careless driving on May 21, 2003, and was sentenced to serve 30 days at an adult correctional facility.  The sentence was stayed for one year.

[2] These social reports are not found in the record, but the parties have quoted them or discussed them without dispute as to the contents.  The probation officer confirmed that respondent was “an appropriate candidate” for a dispositional departure, “based on his youth, lack of prior record, and remorse, as well as low risk to re-offend.”  This report and the additional court services psychological report confirm and detail respondent’s actual remorse, and both report appellant’s desire to participate in educational programs on drinking and driving.  A chemical dependency evaluator contacted by respondent confirmed his remorse, his low risk of re-offending, and his interest in working in an educational effort.