This opinion is nonprecedential except as provided by Minn.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 A23-0447
State of Minnesota, Respondent,
vs.
Tarik Toyshawn Smith-Whitmore, Appellant.
Filed February 5, 2024 Affirmed Reyes, Judge
Hennepin County District Court File No. 27-CR-20-21536
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Mary F. Moriarty, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Andrew J. Nelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Reilly,
Judge. ∗
∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
1 NONPRECEDENTIAL OPINION
REYES, Judge
Appellant challenges his sentence following his conviction of third-degree assault,
arguing that the district court abused its discretion by denying his motion for a downward
durational departure. We affirm.
FACTS
In September 2020, appellant Tarik Toyshawn Smith-Whitmore assaulted a male
victim by pushing him to the ground then punching and kicking him multiple times before
fleeing. Appellant’s assault caused the victim to lose consciousness and suffer a traumatic
brain injury. Respondent State of Minnesota charged appellant with third-degree assault
under Minn. Stat. § 609.223, subd. 1 (2020).
Early in the proceedings, the district court ordered that appellant undergo a
competency evaluation under Minn. R. Crim. P. 20.01. In January 2021, Dr. Katheryn
Cranbrook filed a forensic psychological evaluation opining that appellant was not
competent to proceed further with the case. Based on Dr. Cranbrook’s evaluation, the
district court found appellant incompetent to stand trial and suspended the criminal
proceedings until appellant regained competency.
In September 2021, the district court found that appellant had regained competency
and could proceed to trial. At appellant’s request, the district court ordered a defense-of-
mental-illness examination under Minn. R. Crim. P. 20.02. In November 2021,
Dr. Cranbrook filed a forensic psychological evaluation opining that there was insufficient
evidence to determine that, at the time of the offense charged, appellant was “laboring
2 under such a defect of reason as not to know the nature of the act or that it was wrong.”
Appellant filed a separate rule 20.02 forensic psychological evaluation performed by
Dr. Tricia Aiken, which opined that appellant did not know the moral wrongfulness of his
actions at the time of the offense and therefore could not be held legally responsible for his
assault.
Appellant waived his right to a jury trial and elected to proceed with a court trial
based on stipulated evidence under Minn. R. Crim. P. 26.01, subd. 3. In September 2022,
the district court held the trial and heard testimony from Dr. Cranbrook and Dr. Aiken. The
district court was not persuaded that appellant’s conduct was the product of his mental
illness, rejected appellant’s mental-illness defense, and found appellant guilty of third-
degree assault.
Consistent with the Minnesota Sentencing Guidelines, appellant’s felony pre-
sentence-investigation (PSI) report recommended that appellant be committed to prison for
12 months and 1 day with a stay of execution for three years and supervised probation.
Appellant filed a motion for a downward durational departure, arguing that his mental
condition at the time of the offense was a substantial and compelling circumstance that
would permit the district court to sentence the charge as a gross misdemeanor, that he had
no prior felony convictions and a well-documented history of mental-health episodes, that
he had remained law-abiding since the offense date, and that he had expressed remorse for
the crime.
At the beginning of appellant’s sentencing hearing in December 2022, the district
court stated on the record that it had reviewed the PSI report, had received appellant’s
3 motion for a downward durational departure, and was prepared to proceed with sentencing.
Appellant renewed his motion for a departure, alternatively requesting a stay of imposition
of his sentence. The state opposed appellant’s motion, arguing that the severity of
appellant’s conduct and the lasting impact to the victim supported imposing the
presumptive sentence. The district court gave appellant an opportunity to speak, and
appellant expressed remorse for the offense. The district court acknowledged appellant’s
statements by noting, “I have heard you. And I’m going to take that into consideration.”
The district court then immediately ordered a presumptive guidelines sentence of a stay of
imposition of sentence for three years with supervised probation and for appellant to serve
137 days in jail with credit for 137 days already served.
This appeal follows.
DECISION
Appellant seeks remand for a new sentencing hearing, arguing that the district court
abused its discretion by not deliberately considering the mitigating circumstances,
including his mental impairment, that supported his motion for a downward durational
departure. We are not persuaded.
The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses. Minn. Stat. § 244.09, subd. 5 (2022). Absent “identifiable, substantial, and
compelling circumstances,” a district court must order the presumptive sentence provided
in the sentencing guidelines. Minn. Sent’g Guidelines 2.D.1 (2020); State v. Pegel, 795
N.W.2d 251, 253 (Minn. App. 2011). “Substantial and compelling circumstances [to
support a durational departure] are present when the defendant’s conduct in the offense of
4 conviction was significantly more or less serious than that typically involved in the
commission of the crime in question.” State v. Abrahamson, 758 N.W.2d 332, 337-38
(Minn. App. 2008) (quotation omitted), rev. denied (Minn. Mar. 31, 2009). “A durational
departure must be based on factors that reflect the seriousness of the offense, not the
characteristics of the offender,” which narrows the range of factors justifying a durational
departure. State v. Solberg, 882 N.W.2d 618, 623-24 (Minn. 2016).
If substantial and compelling circumstances exist, “[t]he decision whether to depart
from [the] sentencing guidelines rests within the discretion of the [district] court.” State v.
Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), rev. denied (Minn. Aug. 22, 2001). A
district court abuses its discretion when it misapplies the law or its decision is contrary to
the facts in the record. State v. Guzman, 892 N.W.2d 801, 810 (Minn. 2017).
An appellate court cannot interfere with a district court’s exercise of discretion “as
long as the record shows the [district] court carefully evaluated all the testimony and
information presented before making a determination.” Pegel, 795 N.W.2d at 255
(quotation omitted).
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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 A23-0447
State of Minnesota, Respondent,
vs.
Tarik Toyshawn Smith-Whitmore, Appellant.
Filed February 5, 2024 Affirmed Reyes, Judge
Hennepin County District Court File No. 27-CR-20-21536
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Mary F. Moriarty, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Andrew J. Nelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Reilly,
Judge. ∗
∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
1 NONPRECEDENTIAL OPINION
REYES, Judge
Appellant challenges his sentence following his conviction of third-degree assault,
arguing that the district court abused its discretion by denying his motion for a downward
durational departure. We affirm.
FACTS
In September 2020, appellant Tarik Toyshawn Smith-Whitmore assaulted a male
victim by pushing him to the ground then punching and kicking him multiple times before
fleeing. Appellant’s assault caused the victim to lose consciousness and suffer a traumatic
brain injury. Respondent State of Minnesota charged appellant with third-degree assault
under Minn. Stat. § 609.223, subd. 1 (2020).
Early in the proceedings, the district court ordered that appellant undergo a
competency evaluation under Minn. R. Crim. P. 20.01. In January 2021, Dr. Katheryn
Cranbrook filed a forensic psychological evaluation opining that appellant was not
competent to proceed further with the case. Based on Dr. Cranbrook’s evaluation, the
district court found appellant incompetent to stand trial and suspended the criminal
proceedings until appellant regained competency.
In September 2021, the district court found that appellant had regained competency
and could proceed to trial. At appellant’s request, the district court ordered a defense-of-
mental-illness examination under Minn. R. Crim. P. 20.02. In November 2021,
Dr. Cranbrook filed a forensic psychological evaluation opining that there was insufficient
evidence to determine that, at the time of the offense charged, appellant was “laboring
2 under such a defect of reason as not to know the nature of the act or that it was wrong.”
Appellant filed a separate rule 20.02 forensic psychological evaluation performed by
Dr. Tricia Aiken, which opined that appellant did not know the moral wrongfulness of his
actions at the time of the offense and therefore could not be held legally responsible for his
assault.
Appellant waived his right to a jury trial and elected to proceed with a court trial
based on stipulated evidence under Minn. R. Crim. P. 26.01, subd. 3. In September 2022,
the district court held the trial and heard testimony from Dr. Cranbrook and Dr. Aiken. The
district court was not persuaded that appellant’s conduct was the product of his mental
illness, rejected appellant’s mental-illness defense, and found appellant guilty of third-
degree assault.
Consistent with the Minnesota Sentencing Guidelines, appellant’s felony pre-
sentence-investigation (PSI) report recommended that appellant be committed to prison for
12 months and 1 day with a stay of execution for three years and supervised probation.
Appellant filed a motion for a downward durational departure, arguing that his mental
condition at the time of the offense was a substantial and compelling circumstance that
would permit the district court to sentence the charge as a gross misdemeanor, that he had
no prior felony convictions and a well-documented history of mental-health episodes, that
he had remained law-abiding since the offense date, and that he had expressed remorse for
the crime.
At the beginning of appellant’s sentencing hearing in December 2022, the district
court stated on the record that it had reviewed the PSI report, had received appellant’s
3 motion for a downward durational departure, and was prepared to proceed with sentencing.
Appellant renewed his motion for a departure, alternatively requesting a stay of imposition
of his sentence. The state opposed appellant’s motion, arguing that the severity of
appellant’s conduct and the lasting impact to the victim supported imposing the
presumptive sentence. The district court gave appellant an opportunity to speak, and
appellant expressed remorse for the offense. The district court acknowledged appellant’s
statements by noting, “I have heard you. And I’m going to take that into consideration.”
The district court then immediately ordered a presumptive guidelines sentence of a stay of
imposition of sentence for three years with supervised probation and for appellant to serve
137 days in jail with credit for 137 days already served.
This appeal follows.
DECISION
Appellant seeks remand for a new sentencing hearing, arguing that the district court
abused its discretion by not deliberately considering the mitigating circumstances,
including his mental impairment, that supported his motion for a downward durational
departure. We are not persuaded.
The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses. Minn. Stat. § 244.09, subd. 5 (2022). Absent “identifiable, substantial, and
compelling circumstances,” a district court must order the presumptive sentence provided
in the sentencing guidelines. Minn. Sent’g Guidelines 2.D.1 (2020); State v. Pegel, 795
N.W.2d 251, 253 (Minn. App. 2011). “Substantial and compelling circumstances [to
support a durational departure] are present when the defendant’s conduct in the offense of
4 conviction was significantly more or less serious than that typically involved in the
commission of the crime in question.” State v. Abrahamson, 758 N.W.2d 332, 337-38
(Minn. App. 2008) (quotation omitted), rev. denied (Minn. Mar. 31, 2009). “A durational
departure must be based on factors that reflect the seriousness of the offense, not the
characteristics of the offender,” which narrows the range of factors justifying a durational
departure. State v. Solberg, 882 N.W.2d 618, 623-24 (Minn. 2016).
If substantial and compelling circumstances exist, “[t]he decision whether to depart
from [the] sentencing guidelines rests within the discretion of the [district] court.” State v.
Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), rev. denied (Minn. Aug. 22, 2001). A
district court abuses its discretion when it misapplies the law or its decision is contrary to
the facts in the record. State v. Guzman, 892 N.W.2d 801, 810 (Minn. 2017).
An appellate court cannot interfere with a district court’s exercise of discretion “as
long as the record shows the [district] court carefully evaluated all the testimony and
information presented before making a determination.” Pegel, 795 N.W.2d at 255
(quotation omitted). If a district court considers reasons for departure but imposes a
presumptive sentence, it is not required to explain its reasons for doing so on the record.
State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985). Only in rare cases will an
appellate court reverse a district court’s imposition of a presumptive sentence. State v.
Olson, 765 N.W.2d 662, 664 (Minn. App. 2009).
Here, the district court stated at the beginning of the sentencing hearing that it had
reviewed the PSI report, which directly addressed appellant’s recollection of the charged
offense, as well as appellant’s mental-health history, criminal history, and expressed
5 remorse. The district court acknowledged that it had received appellant’s motion for a
downward durational departure, and then listened to the parties’ arguments regarding
departure and appellant’s personal statement. The district court was familiar with the
case’s procedural history and appellant’s fluctuating mental-health status. Moreover, the
district court granted appellant the alternative disposition he requested: a stay of imposition
of sentence. The record therefore supports that the district court deliberately and carefully
considered all of the pertinent testimony and information presented before ordering the
presumptive sentence. See Pegel, 795 N.W.2d at 255.
Appellant further argues that the district court abused its discretion by failing to
consider his mental impairment before declining to depart downward. If a defendant
“lacked substantial capacity for judgment” at the time of the offense because of a mental
impairment, that may be a mitigating factor on which the district court relies to justify
departure. Minn. Sent’g Guidelines 2.D.3.a (2020). For a mental impairment to constitute
a mitigating factor in sentencing, a defendant’s impairment must be so extreme that it
“deprives the defendant of control over [their] actions.” State v. McLaughlin, 725 N.W.2d
703, 716 (Minn. 2007).
Appellant’s argument fails for several reasons. First, as noted above, the district
court need only consider reasons for a departure and does not need to explain its reasons
when imposing a guidelines sentence. Van Ruler, 378 N.W.2d at 80. Here, the district
court knew of appellant’s mental-health history and his related arguments for departure.
Second, even if substantial and compelling reasons to depart existed, the district court did
not need to depart. Pegel, 795 N.W.2d at 253-54.
6 Third, appellant’s reliance on State v. Martinson, 671 N.W.2d 887 (Minn. App.
2003), rev. denied (Minn. Jan. 20, 2004), and State v. Barsness, 473 N.W.2d 325 (Minn.
App. 1991), rev. denied (Minn. Aug. 29, 1991), to support that his mental impairment is a
mitigating factor is misguided. In Martinson, this court upheld a downward durational
departure based on the defendant’s extreme mental impairment. 671 N.W.2d at 891-92.
In Barsness, this court upheld a downward durational departure when the district court
cited evidence that, when the offense was committed, appellant was borderline mentally
disabled, chemically dependent, and “suffering from major, severe depression.” 473
N.W.2d at 329. Here, the district court did not depart but rather ordered a stay of
imposition, which is a guidelines sentence. Further, the district court credited the expert
testimony of Dr. Cranbrook at trial regarding appellant’s mental status at the time of the
offense. Appellant’s cited cases are inapposite.
We conclude that the district court did not abuse its discretion by ordering a
presumptive guidelines sentence despite appellant’s request for a downward durational
departure.
Affirmed.