This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


Robert Earl Clayborne,


Filed April 3, 2007


Minge, Judge


Ramsey County District Court

File No. K8-05-1965



Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Michael W. Kunkel, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant challenges his sentence for terroristic threats, arguing that the district court erred by failing to exercise its discretion when it denied his motion for a downward dispositional departure.  We affirm. 



            The issue in this case is whether the district court erred by failing to exercise its discretion when it denied appellant Robert Clayborne’s motion for a downward dispositional departure.  Sentences provided by the Minnesota Sentencing Guidelines are presumptively appropriate for the crimes to which they are applied.  Minn. Sent. Guidelines II.D.  “[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  The decision whether to depart from the sentencing guidelines rests within the district court’s discretion, and we will not reverse absent an abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  But a district court must actually weigh the reasons for and against departure and make a deliberate decision.  State v. Mendoza, 638 N.W.2d 480, 484 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002).  Only a “rare case” warrants reversal of a district court’s refusal to depart from a guideline sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). 

            A defendant’s amenability to treatment in a probationary setting may support a departure.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  Amenability depends on many factors, including the defendant’s “age, prior record, remorse, cooperation, attitude while in court, and the support of friends or family.”  State v. Gebeck, 635 N.W.2d 385, 389 (Minn. App. 2001); see also Trog, 323 N.W.2d at 31.  Amenability also depends on the defendant’s “ability to comply with the conditions of probation and benefit from the opportunity for rehabilitation that probation affords.”  State v. Hickman, 666 N.W.2d 729, 732 (Minn. App. 2003).  

            Here, appellant entered an Alford plea to a charge of terroristic threats for an incident involving his girlfriend.  Appellant entered his plea in exchange for the state’s agreement to withdraw an amended complaint, charging appellant with the additional offenses of assault and kidnapping.  With respect to the threats, the record indicates that appellant had a knife and threatened to kill his girlfriend.  Based on his earlier convictions for terroristic threats, second-degree assault, false imprisonment, misdemeanor criminal damage to property, and second-degree cocaine possession, appellant was assigned a criminal history score of six.  And under the Minnesota Sentencing Guidelines, the crime of terroristic threats is a severity-level-IV offense.  Minn. Sent. Guidelines V.  Therefore, the presumptive sentence for appellant is 30 months, executed, with a presumptive sentencing range of 29 to 31 months.  Minn. Sent. Guidelines IV.

            At his sentencing hearing, appellant moved for a downward dispositional departure on the basis that he is amenable to probation and unamenable to incarceration.  Appellant informed the district court that he was “emotional over [the] incident,” was trying to “work things out with the victim,” was under the influence of alcohol at the time of the offense, and had been accepted into the Teen Challenge program, where he hoped to serve at least part of his sentence.  The district court recognized that appellant has insight into his actions.  But the district court also noted that during appellant’s stayed sentence for a previous conviction, appellant violated his probation on six different occasions.  The district court considered appellant’s argument for a stayed sentence, reviewed his record, and concluded that based on the file, a stayed sentence was not justified.  The district court denied appellant’s motion for a downward dispositional departure and imposed a 29-month prison term.  Based on the record, we conclude that the district court adequately exercised its discretion in denying appellant’s motion.

            Appellant also contends that he presents a “unique situation,” warranting a dispositional departure.  But a consideration of the Trog factors, particularly appellant’s prior record, supports the district court’s conclusion.  In 2001, appellant was convicted of terroristic threats after an incident that is factually similar to the incident resulting in the current conviction.  We conclude that this is not a rare case warranting reversal of the district court’s refusal to depart.  The district court did not abuse its discretion by denying

appellant’s motion for a downward dispositional departure and imposing a prison sentence that is within the presumptive range.