This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-1525
State of Minnesota, Respondent,
vs.
Jill Marie Zetterwall, Appellant.
Filed June 10, 2024 Affirmed Frisch, Judge
Hennepin County District Court File No. 27-CR-22-15379
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Mary F. Moriarty, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Bruce Rivers, Rivers Law Firm, P.A., Minneapolis, Minnesota (for appellant)
Considered and decided by Frisch, Presiding Judge; Larkin, Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Following her conviction of criminal vehicular homicide, appellant argues that the
district court abused its discretion in denying her motion for a downward dispositional sentencing departure. Because we discern no abuse of discretion by the district court in
imposing the presumptive sentence, we affirm.
FACTS
In July 2022, appellant Jill Marie Zetterwall caused a collision between her SUV
and a smaller vehicle while she was driving with an alcohol concentration of at least 0.225.
As a result, the driver of the smaller car died at the collision site from blunt-force injuries.
Respondent State of Minnesota charged Zetterwall with criminal vehicular homicide—
operating a vehicle with negligence while under the influence of alcohol—pursuant to
Minn. Stat. § 609.2112, subd. 1(a)(2)(i) (2020). Zetterwall pleaded guilty to the charge
and moved for a downward dispositional sentencing departure.
Zetterwall emphasized in her departure motion that she had been sober since the
collision—420 days—and that she had been consistently engaged in treatment efforts to
address both mental-health and substance-abuse issues throughout that time. Zetterwall
noted her substantial family and social support, lack of criminal history, compliance with
the terms of her supervised release, cooperation and truthfulness throughout the
proceedings, and remorse for causing the victim’s death. Zetterwall also submitted
evidence of her health conditions, arguing that these circumstances weighed against her
incarceration.
The district court denied Zetterwall’s motion and sentenced her to 57 months’
imprisonment, followed by a conditional-release period of five years. Zetterwall appeals.
2 DECISION
The Minnesota Sentencing Guidelines “prescrib[e] a sentence or range of sentences
that is presumed to be appropriate.” State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014)
(quotation omitted). A district court has great discretion when making sentencing
decisions, and we will reverse those decisions only when the district court abuses that
discretion. Id. at 307-08. A sentence imposed in accordance with the guidelines is
presumed to be appropriate. Minn. Sent’g Guidelines 2.D.1 (Supp. 2021). “We will affirm
the imposition of a presumptive guidelines sentence when the record shows that the
sentencing court carefully evaluated all the testimony and information presented before
making a determination.” State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013)
(quotation omitted), rev. denied (Minn. Sept. 17, 2013).
If presented with “identifiable, substantial, and compelling circumstances,” a
district court may depart from the presumptive guidelines sentence. Id.; see also Minn.
Sent’g Guidelines 2.D.1 (stating that a court may depart from the guidelines sentence if
“there exist identifiable, substantial, and compelling circumstances to support a
departure”). But a district court may choose not to depart without abusing its sentencing
discretion even if it determines that factors exist that might support a sentencing departure.
See State v. Walker, 913 N.W.2d 463, 468-69 (Minn. App. 2018) (concluding that a district
court did not abuse its discretion by denying a defendant’s motion for a dispositional
departure despite “evidence of factors that could have supported a departure if they had
been substantial or compelling”). We reverse a sentencing court’s refusal to depart only in
“rare” cases. Id. at 468 (quoting State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981)).
3 In evaluating a motion for a downward dispositional departure from the presumptive
guidelines sentence, a district court considers whether the defendant is “particularly
amenable to individualized treatment in a probationary setting.” State v. Wright, 310
N.W.2d 461, 462 (Minn. 1981). In evaluating a defendant’s particular amenability to
probation, a district court may consider factors including the defendant’s age, prior record,
remorse, cooperation, attitude while in court, and support of friends and family. State v.
Trog, 323 N.W.2d 28, 31 (Minn. 1982). These are known as the Trog factors. See State v.
Pegel, 795 N.W.2d 251, 252-54 (Minn. App. 2011).
Zetterwall argues that the district court abused its sentencing discretion by (1) not
properly considering the evidence in support of her departure motion, (2) not considering
or making findings as to each of the Trog factors, and (3) improperly and unfairly cross-
examining Zetterwall during her sentencing hearing. Our review of the record shows that
the district court did not abuse its sentencing discretion.
First, at the sentencing hearing, the district court evaluated the evidence presented
by Zetterwall in support of her departure motion and considered that evidence in light of
the entire record. The district court stated that it reviewed memoranda, exhibits, character
reference letters, and the presentence investigation report (PSI). The district court
specifically recognized and commended Zetterwall on her recent success in treatment and
acknowledged the support of her family and friends. But the district court also noted
concerns about Zetterwall’s long-term conduct related to treatment and sobriety and
determined that this history weighed against a finding of particular amenability to treatment
4 in a probationary setting. We therefore reject Zetterwall’s contention that the district court
failed to consider the evidence in favor of a dispositional departure.
Zetterwall next argues that the district court abused its discretion because it did not
expressly make findings on each of the Trog factors. It is true that the district court did not
reference Zetterwall’s age, prior criminal record, remorse, cooperation, attitude toward the
court, or vulnerability due to health concerns, despite evidence in the record regarding each
of these factors. But a district court need not expressly acknowledge or make findings on
each Trog factor in considering a departure motion. Pegel, 795 N.W.2d at 254; see also
Johnson, 831 N.W.2d at 926 (noting that a district court is not required to state for the
record its reasons for denying a motion for dispositional departure). And a district court
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This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-1525
State of Minnesota, Respondent,
vs.
Jill Marie Zetterwall, Appellant.
Filed June 10, 2024 Affirmed Frisch, Judge
Hennepin County District Court File No. 27-CR-22-15379
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Mary F. Moriarty, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Bruce Rivers, Rivers Law Firm, P.A., Minneapolis, Minnesota (for appellant)
Considered and decided by Frisch, Presiding Judge; Larkin, Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Following her conviction of criminal vehicular homicide, appellant argues that the
district court abused its discretion in denying her motion for a downward dispositional sentencing departure. Because we discern no abuse of discretion by the district court in
imposing the presumptive sentence, we affirm.
FACTS
In July 2022, appellant Jill Marie Zetterwall caused a collision between her SUV
and a smaller vehicle while she was driving with an alcohol concentration of at least 0.225.
As a result, the driver of the smaller car died at the collision site from blunt-force injuries.
Respondent State of Minnesota charged Zetterwall with criminal vehicular homicide—
operating a vehicle with negligence while under the influence of alcohol—pursuant to
Minn. Stat. § 609.2112, subd. 1(a)(2)(i) (2020). Zetterwall pleaded guilty to the charge
and moved for a downward dispositional sentencing departure.
Zetterwall emphasized in her departure motion that she had been sober since the
collision—420 days—and that she had been consistently engaged in treatment efforts to
address both mental-health and substance-abuse issues throughout that time. Zetterwall
noted her substantial family and social support, lack of criminal history, compliance with
the terms of her supervised release, cooperation and truthfulness throughout the
proceedings, and remorse for causing the victim’s death. Zetterwall also submitted
evidence of her health conditions, arguing that these circumstances weighed against her
incarceration.
The district court denied Zetterwall’s motion and sentenced her to 57 months’
imprisonment, followed by a conditional-release period of five years. Zetterwall appeals.
2 DECISION
The Minnesota Sentencing Guidelines “prescrib[e] a sentence or range of sentences
that is presumed to be appropriate.” State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014)
(quotation omitted). A district court has great discretion when making sentencing
decisions, and we will reverse those decisions only when the district court abuses that
discretion. Id. at 307-08. A sentence imposed in accordance with the guidelines is
presumed to be appropriate. Minn. Sent’g Guidelines 2.D.1 (Supp. 2021). “We will affirm
the imposition of a presumptive guidelines sentence when the record shows that the
sentencing court carefully evaluated all the testimony and information presented before
making a determination.” State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013)
(quotation omitted), rev. denied (Minn. Sept. 17, 2013).
If presented with “identifiable, substantial, and compelling circumstances,” a
district court may depart from the presumptive guidelines sentence. Id.; see also Minn.
Sent’g Guidelines 2.D.1 (stating that a court may depart from the guidelines sentence if
“there exist identifiable, substantial, and compelling circumstances to support a
departure”). But a district court may choose not to depart without abusing its sentencing
discretion even if it determines that factors exist that might support a sentencing departure.
See State v. Walker, 913 N.W.2d 463, 468-69 (Minn. App. 2018) (concluding that a district
court did not abuse its discretion by denying a defendant’s motion for a dispositional
departure despite “evidence of factors that could have supported a departure if they had
been substantial or compelling”). We reverse a sentencing court’s refusal to depart only in
“rare” cases. Id. at 468 (quoting State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981)).
3 In evaluating a motion for a downward dispositional departure from the presumptive
guidelines sentence, a district court considers whether the defendant is “particularly
amenable to individualized treatment in a probationary setting.” State v. Wright, 310
N.W.2d 461, 462 (Minn. 1981). In evaluating a defendant’s particular amenability to
probation, a district court may consider factors including the defendant’s age, prior record,
remorse, cooperation, attitude while in court, and support of friends and family. State v.
Trog, 323 N.W.2d 28, 31 (Minn. 1982). These are known as the Trog factors. See State v.
Pegel, 795 N.W.2d 251, 252-54 (Minn. App. 2011).
Zetterwall argues that the district court abused its sentencing discretion by (1) not
properly considering the evidence in support of her departure motion, (2) not considering
or making findings as to each of the Trog factors, and (3) improperly and unfairly cross-
examining Zetterwall during her sentencing hearing. Our review of the record shows that
the district court did not abuse its sentencing discretion.
First, at the sentencing hearing, the district court evaluated the evidence presented
by Zetterwall in support of her departure motion and considered that evidence in light of
the entire record. The district court stated that it reviewed memoranda, exhibits, character
reference letters, and the presentence investigation report (PSI). The district court
specifically recognized and commended Zetterwall on her recent success in treatment and
acknowledged the support of her family and friends. But the district court also noted
concerns about Zetterwall’s long-term conduct related to treatment and sobriety and
determined that this history weighed against a finding of particular amenability to treatment
4 in a probationary setting. We therefore reject Zetterwall’s contention that the district court
failed to consider the evidence in favor of a dispositional departure.
Zetterwall next argues that the district court abused its discretion because it did not
expressly make findings on each of the Trog factors. It is true that the district court did not
reference Zetterwall’s age, prior criminal record, remorse, cooperation, attitude toward the
court, or vulnerability due to health concerns, despite evidence in the record regarding each
of these factors. But a district court need not expressly acknowledge or make findings on
each Trog factor in considering a departure motion. Pegel, 795 N.W.2d at 254; see also
Johnson, 831 N.W.2d at 926 (noting that a district court is not required to state for the
record its reasons for denying a motion for dispositional departure). And a district court
does not abuse its discretion even where the record contains some record evidence showing
particular amenability to probation. See State v. Bertsch, 707 N.W.2d 660, 668 (Minn.
2006).
Finally, Zetterwall argues that the district court abused its discretion by questioning
her during the sentencing hearing about certain of the Twelve Steps recited at Alcoholics
Anonymous (A.A.) meetings. In support of her departure motion, Zetterwall emphasized
that she was committed to her sobriety and had attended A.A. meetings at least five days
per week for over one year. During the sentencing hearing, the district court judge asked
Zetterwall to state the first two of the A.A. Twelve Steps. 1 In her responses, Zetterwall did
1 At oral argument, counsel for Zetterwall asserted that the district court judge used an intimidating tone or volume in asking these questions, which caused Zetterwall to provide flustered responses. On appeal, we cannot discern the district court’s tone, because our review is limited to the transcript of hearings held in district court and other record
5 not recite the first two steps but instead offered a different description of the first two steps.
The district court judge noted that the A.A. Twelve Steps should be “almost a mantra” for
someone who had been attending meetings five days a week. The district court ultimately
concluded that Zetterwall was not “truly engaged” in treatment and was therefore not
particularly amenable to probation.
We discern no abuse of discretion by the district court in its conduct during the
sentencing hearing. A district court is not limited to the Trog factors in evaluating whether
a defendant is particularly amenable to treatment in a probationary setting. See Soto, 855
N.W.2d at 310 (stating that the Trog factors provide a “useful framework” but “are not the
only factors that can bear on a defendant’s amenability to probation”). The questions posed
by the district court enabled it to assess Zetterwall’s amenability to treatment in a
probationary setting. And given that Zetterwall did not contest the evidence in the record
showing her history of disengagement with and otherwise unsuccessful treatment, the
district court had a reasoned basis for its inquiry. We therefore conclude that the district
court did not abuse its discretion by questioning Zetterwall about the Twelve Steps during
the sentencing hearing.
We recognize Zetterwall’s efforts in the year between the offense and sentencing
and commend her commitment to sobriety. But on this record, we conclude that the district
court evaluated all available evidence and did not abuse its broad discretion by imposing a
presumptively appropriate sentence under the sentencing guidelines. This case does not
evidence. We also note that the sentencing transcript does not reflect any objection to the district court’s questions.
6 present the rare circumstances that would justify overturning a district court’s denial of a
motion for dispositional sentencing departure.
Affirmed.