State of Minnesota v. Roel Joseph Perez, Jr.

• Court: Court of Appeals of Minnesota
• Decided: September 30, 2024
• Docket: a231914
• Status: Unpublished

Opinion

This opinion is nonprecedential except as provided by Minn.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 A23-1914

State of Minnesota, Respondent,

vs.

Roel Joseph Perez, Jr., Appellant.

Filed September 30, 2024 Affirmed Ede, Judge

Ramsey County District Court File No. 62-CR-23-4223

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Anna R. Light, Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Ede, Judge; and Schmidt, Judge.

NONPRECEDENTIAL OPINION

EDE, Judge

In this direct appeal challenging his 27-month executed sentence for a felony

violation of a domestic-abuse no-contact order (DANCO), appellant argues that the district

court abused its discretion by denying his motion for a downward dispositional departure. Because we conclude that the district court did not abuse its discretion in imposing a

presumptive sentence within the guidelines range for the convicted offense, we affirm.

FACTS

In July 2023, a DANCO prohibited appellant Roel Joseph Perez Jr. from having

contact with his ex-girlfriend. Although Perez was aware of the DANCO and understood

its terms, he had contact with his ex-girlfriend by speaking to and spending time with her.

Perez did so despite knowing that he was violating the DANCO. Prior to this conduct,

Perez had two prior domestic-violence-related convictions that qualified this offense to be

charged as a felony.

Respondent State of Minnesota charged Perez with violating a DANCO under

Minnesota Statutes section 629.75, subdivision 2(d)(1) (2022). Perez pleaded guilty to the

charged offense. In exchange for Perez’s guilty plea, the state agreed to dismiss two counts

of first-degree burglary that were pending in a separate case. The district court informed

Perez that it would defer acceptance of his guilty plea pending completion of a presentence

investigation report (PSI).

In September 2023, a probation agent filed a PSI stating that Perez was serving an

executed sentence for a probation violation. The PSI also reported that Perez had a

criminal-history score of six and recommended a guidelines sentence of 30 months in

prison.

Before the sentencing hearing, Perez moved for a “mitigated dispositional or

durational departure.” Among other things, Perez argued that he “suffered trauma as a

child” and that “[i]ncarceration would pose a significant hardship to [his] family.” He also

2 asserted that he struggles with mental-health disorders and substance abuse. Perez

maintained that he “ha[d] exhibited a positive attitude throughout the pendency of these

legal proceedings” and “ha[d] exhibited an outpouring of remorse for the instant offense,

even if that remorse ha[d] been largely confined to the hearing of his defense team.” He

contended that “[h]is enthusiasm, insight, and diligence . . . help make him particularly

amenable to probation.” Perez asserted that he “has a strong work ethic and good

employment history—factors not to be considered on their face—but factors demonstrative

of a sense of responsibility, drive, and motivation that enhance his chances for success on

probation.” Finally, he argued that the offense was less serious than typical. In support of

his motion, Perez submitted a letter from his mother and a memorandum completed by a

dispositional advisor employed by the State of Minnesota Board of Public Defense.

At the sentencing hearing, the state opposed Perez’s requests for downward

durational and dispositional departures, arguing that Perez was already incarcerated after

violating probation and receiving a downward dispositional departure in a prior case. The

state cited Perez’s history of probation violations and noted that, after “over ten attempts

at chemical dependency treatment out of custody,” Perez appeared to be particularly

amenable to treatment only while incarcerated. The state recommended a guidelines

sentence of 30 months in prison.

Defense counsel contended that a dispositional departure would grant Perez a

“mechanism” to receive treatment “in a calculated custodial setting in the sentence that

[he] already [had].” More specifically, Perez asked the district court to allow him to finish

chemical-dependency treatment while serving a separate executed sentence for his

3 unrelated offense by granting him probation for his felony DANCO violation. In addition

to pointing out that Perez was already seeking treatment, the defense maintained that he

had “good family support” and that the combined effect of outpatient treatment with

supervision by his probation officer would provide him a “safety-net” upon his release

from prison. In the alternative, the defense asserted that “[a] durational departure in some

way would be a better outcome.”

During his allocution, Perez addressed the district court, expressed remorse for his

past decisions, and pleaded for leniency, stating that his plan was “to continue in chemical

treatment and address [his] mental health.” Perez explained that he has two daughters and

that his long-term goals were to “gain employment long enough to get [his] driver’s license

back . . . [a]nd transition back in[to] the construction trades.”

The district court said that it reviewed the PSI and the parties’ sentencing

recommendations. Before pronouncing the sentence, the district court thanked Perez, stated

that Perez’s allocution “was very, very thoughtful,” and specifically discussed its reasoning

in denying Perez’s downward durational and dispositional departure motions. After doing

so, the district court imposed a 27-month executed sentence.

Perez appeals.

DECISION

Perez challenges his 27-month executed sentence. He argues that the district court’s

“decision to send [him] to prison was an abuse of discretion because the record shows that

[he] is particularly amenable to probation.” Perez also contends that the district court’s

denial of his motion for a downward dispositional departure was against logic and the facts

4 in the record. 1 The state responds that “the district court considered the reasons for and

against a departure—particularly [Perez’s] experience with and need for chemical

dependency treatment—and exercised its discretion by concluding that there were no

substantial and compelling reasons to depart from the presumptive prison sentence.” We

agree with the state.

Appellate courts “afford the [district] court great discretion in the imposition of

sentences and reverse sentencing decisions only for an abuse of that discretion.” State v.

Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). But this discretion is

limited by the Minnesota Sentencing Guidelines, which “prescrib[e] a sentence or range of

sentences that is presumed to be appropriate.” Id. at 308 (quotation omitted). “The [district]

court must pronounce a sentence of the applicable disposition, within the applicable prison

range, and within the applicable length of stay, unless there exist identifiable, substantial,

and compelling circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1

(2022). “Only in a rare case will a reviewing court reverse the imposition of a presumptive

sentence.” State v. Pegel, 795 N.W.2d 251, 253 (Minn. App. 2011).

“[A] downward dispositional departure occurs when the presumptive guidelines

sentence calls for imprisonment but the district court instead stays execution or imposition

of the sentence.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016). “A dispositional

departure typically focuses on characteristics of the defendant that show whether the

defendant is particularly suitable for individualized treatment in a probationary setting.”

1 In this appeal, Perez does not challenge the district court’s denial of his motion for a downward durational departure.

5 Id. (quotation omitted). “Numerous factors, including the defendant’s age, his prior record,

his remorse, his cooperation, his attitude while in court, and the support of his friends

and/or family, are relevant to a determination whether a defendant is particularly suitable

to individualized treatment in a probationary setting.” State v. Trog, 323 N.W.2d 28, 31

(Minn. 1982); see also Minn. Sent’g Guidelines 2.D.3 (2022). “A defendant’s amenability

to probation may by itself support a downward dispositional departure.” State v. Hickman,

666 N.W.2d 729, 731-32 (Minn. App. 2003). “But the mere fact that a mitigating factor is

present in a particular case does not obligate the [district] court to place [the] defendant on

probation or impose a shorter term than the presumptive term.” Pegel, 795 N.W.2d at 253-

54 (quotation omitted). “A reviewing court may not interfere with the sentencing court’s

exercise of discretion, as long as the record shows the sentencing court carefully evaluated

all the testimony and information presented before making a determination.” Id. at 255

(quotation omitted).

Here, after acknowledging Perez’s allocution, the district court imposed an executed

sentence of 27 months. “[A]ny sentence within the presumptive range for the convicted

offense constitutes a presumptive sentence.” State v. Delk, 781 N.W.2d 426, 428 (Minn.

App. 2010), rev. denied (Minn. July 20, 2010). Based on Perez’s undisputed criminal-

history score of six and the uncontroverted severity level of four assigned to his DANCO

violation, the presumptive range under the Minnesota Sentencing Guidelines is 26 to 36

months. See Minn. Sent’g Guidelines 4.A (2022). Thus, the 27-month executed sentence

imposed by the district court was within the guidelines range for the offense of conviction

and constitutes a presumptive sentence. See Delk, 781 N.W.2d at 428.

6 Perez insists that the district court’s imposition of the presumptive sentence was an

abuse of discretion. But the record reflects that the district court evaluated all the testimony

and information presented before deciding to deny Perez’s motion for a downward

dispositional departure. The district court reviewed the PSI, Perez’s five-page departure

motion, and the supporting documents that Perez submitted. In addition, the district court

listened to the arguments both Perez and his counsel presented at the sentencing hearing.

And the district court thanked Perez for his allocution and stated that Perez’s comments

were “very, very thoughtful.”

District courts need not put on the record the reasons for denying a departure motion.

State v. Johnson, 831 N.W.2d 917, 926 (Minn. App. 2013) (citing State v. Van Ruler, 378

N.W.2d 77, 80 (Minn. App. 1985)), rev. denied (Minn. Sept. 17, 2013). Although it did not

need to do so, the district court nonetheless explained the bases for its determination that

Perez was not particularly amenable to treatment in a probationary setting. The district

court noted that Perez’s dispositional departure motion required “substantial and

compelling reasons not to send [Perez] to presumptive prison but to place [him] on

probation” and said that “unfortunately here, [the court could not] find that.” The district

court cited the PSI in stating that Perez had “ten prior attempts at treatment” and that,

“given those prior treatment failures, [the court could not] find that putting [him] on

probation and having [him] do treatment is a substantial and compelling reason to depart.”

Instead, the district court said that “it’s probably just the opposite” and that “the best way

for [Perez] to get sober is at [a] treatment program in the prison, not in a probationary

7 setting” because “[t]hose haven’t worked in the past.” Based on our careful review of the

record, including the PSI, we conclude that the district court’s reasoning is well supported.

Quoting State v. Nelson, 329 N.W.2d 827, 829 (Minn. 1983), Perez argues that his

“apparent willingness to succeed in treatment is a ground for a dispositional departure in

the form of a stay of execution of sentence.” In support of this contention, Perez maintains

that he “had the support of family” and that he “was remorseful, pleaded guilty within days

of charging, and accepted responsibility.” While that may be true, the Minnesota Supreme

Court’s holding in Nelson did not require the district court on remand to grant the defendant

a downward dispositional departure because of the defendant’s demonstrated desire to

complete treatment. 329 N.W.2d at 829. Indeed, Nelson concerned the state’s appeal of the

district court’s decision to grant a downward durational departure, which the supreme court

overturned because the “[d]efendant’s apparent willingness to succeed in treatment is not

a ground for a downward durational departure any more than one’s dangerousness can be

used as a basis for an upward durational departure.” Id. Rather than order the district court

to substitute a downward dispositional departure for the downward durational departure it

had erroneously imposed, the supreme court remanded for resentencing and held that “[o]n

remand, . . . the [district] court ha[d] the option of placing the defendant on probation and

imposing such conditions of probation as appear proper.” Id. (emphasis added).

In contrast to Perez’s reliance on Nelson, the state’s citations to State v. Brusven,

327 N.W.2d 591, 593 (Minn. 1982), and State v. Evenson, 554 N.W.2d 409, 412 (Minn.

App. 1996), are more persuasive. In Brusven, the supreme court “agree[d] with the state

that . . . [the] case [did not] warrant[] a reversal of the refusal to depart dispositionally[,]”

8 despite the defendant “coming forward and admitting the misconduct and . . . [the

defendant’s] obvious feelings of guilt and his desire to succeed in treatment.” 327 N.W.2d

at 593. And in Evenson, this court concluded that, “[e]ven assuming [the defendant] is

exceptionally amenable to treatment, his amenability does not dictate the result.” 554

N.W.2d at 412.

The district court acknowledged Perez’s struggles with chemical addiction, as well

as his stated goals “to get back into construction” and “get back in [his] daughters’ lives[.]”

And the district court noted that “[c]hemical addiction is a horrific thing.” But the district

court ultimately acted well within its discretion in determining that accomplishing those

goals required Perez to be sober, which in turn necessitated treatment in a custodial rather

than probationary setting because Perez’s previous attempts at community-based treatment

had failed.

In sum, the district court carefully evaluated all the testimony and information

presented and determined that there were no substantial and compelling reasons to depart

from the sentencing guidelines. Thus, the district court’s decision to impose a presumptive

executed sentence was not against logic or the facts in the record, and we discern no abuse

of discretion.

Affirmed.