This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1733
State of Minnesota,
Respondent,
vs.
Corey Michael Kokette,
Appellant.
Filed August 15, 2016
Affirmed
Stauber, Judge
Sherburne County District Court
File No. 71-CR-15-172
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Kathleen A. Heaney, Sherburne County Attorney, Elisabeth A. Spilde, Assistant County
Attorney, Elk River, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard A. Schmitz, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Ross, Judge; and Johnson,
Judge.
UNPUBLISHED OPINION
STAUBER, Judge
On appeal from his conviction of first-degree controlled-substance crime,
appellant argues that the district court abused its discretion by denying his motion for a
downward durational departure. We affirm.
FACTS
In February 2015, a vehicle driven by 38-year-old appellant Corey Kokette was
stopped for speeding. L.L., the passenger in the vehicle driven by appellant, had an
active warrant for his arrest, and during a lawful search of L.L., police discovered
approximately two grams of methamphetamine on his person. Appellant was also
lawfully searched during the traffic stop and police discovered approximately 24 grams
of methamphetamine on his person. Appellant and L.L. were then arrested, and police
conducted a search of the motor vehicle. In an unlocked briefcase in the trunk of the
vehicle, police discovered a check book bearing L.L.’s name and information,
mushrooms, marijuana, drug paraphernalia, and over 140 grams of methamphetamine.
Appellant was subsequently charged with controlled-substance crime in the first-degree
under Minn. Stat. § 152.021, subd. 2(a) (2014).
Appellant pleaded guilty to the charged offense and admitted to possessing over
341 grams of methamphetamine. Under the terms of the plea agreement, the state agreed
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At the plea hearing, appellant admitted to possessing 42 grams of methamphetamine,
but testimony at a contested omnibus hearing indicated that the laboratory’s analysis of
the weight of the methamphetamine located on appellant’s person totaled 34.393 grams.
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to cap the sentence at 161 months, and appellant was free to argue for a durational
departure. At sentencing, appellant argued that because his offense was less serious than
the typical first-degree controlled-substance offense, he should be sentenced to a
downward durational departure of 90 months in prison. The district court rejected
appellant’s argument, concluding that it could not “find that this crime was committed in
any less serious fashion than the typical controlled substance crime.” Thus, the district
court denied appellant’s departure motion and sentenced appellant to a middle-of-the-box
guidelines sentence of 161 months. This appeal followed.
DECISION
Appellant challenges the district court’s denial of his motion for a downward
durational departure. This court reviews a district court’s refusal to depart from the
guidelines for an abuse of discretion. State v. Soto, 855 N.W.2d 303, 307-08 (Minn.
2014). Only in a “rare” case will an appellate court reverse a sentencing court’s refusal
to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
The district court must order the presumptive sentence provided in the Minnesota
Sentencing Guidelines unless the case involves “substantial and compelling
circumstances” to warrant a departure. Id. A district court only considers offense-related
factors when determining whether to grant a durational departure. State v. Peter, 825
N.W.2d 126, 130 (Minn. App. 2012), review denied (Minn. Feb. 27, 2013). Specifically,
the district court considers “whether the conduct involved in the offense of conviction
was significantly more or less serious than the typical conduct for that crime.” Id.
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As an initial matter, appellant attempts to minimize the discretion afforded the
district court at sentencing, claiming that recently this court “has conducted a more robust
review of the sentencing decisions made by the district courts as evidenced by the large
number of reversals by this [c]ourt in a short period of time.” But a review of the mostly
unpublished cases cited by appellant reveals that the cases involve appeals by the state in
which this court reversed and remanded for resentencing because the district court
improperly relied on offender-related, rather than offense-related, factors to support a
downward durational departure. Although these cases conclude that the district court
abused its discretion by granting the downward durational departures, the abuse of
discretion was based on the district courts’ deviation from settled caselaw that “offender-
related factors do not support durational departures.” See id. These cases do not require
a more “robust” review of a sentencing court’s discretion.
Appellant also contends that the record contains “multiple valid offense-specific
reasons” which demonstrate that his conduct was significantly less serious than that
typically involved in a first-degree controlled-substance offense. Appellant claims that
these offense-specific reasons include: (1) the amount of drugs attributed to him was less
than the typical first-degree controlled-substance offense in Sherburne County; (2) the
more culpable role of L.L.; and (3) his remorse. Appellant further argues that his offense
was significantly less serious than the typical first-degree controlled-substance offense
because he “was not running a major drug distribution ring,” and his motive for selling
drugs was “related to his desire to attend school without having to ask for money from his
parents” even though he was 38 years old.
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Under Minnesota law, the district court is not obligated to depart even when
mitigating factors are present. State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006).
Thus, even if appellant established mitigating factors, the district court was under no
obligation to depart. Moreover, this court will affirm a presumptive 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), review denied (Minn. Sept. 17, 2013).
In denying appellant’s durational departure motion, the district court found that the fact
that appellant was pursuing his education was not relevant to the consideration of
appellant’s motion because it was not offense related. The district court also found that
appellant possessed an amount of methamphetamine in excess “of the statutory
jurisdictional amount for the crime” to which appellant pleaded guilty, and that
appellant’s possession crime “happened basically as a pattern” of behavior involving
methamphetamine. As a result, the district court found that “[c]onsidering all of those
situations, all of those facts, the [c]ourt cannot find that this crime was committed in any
less serious fashion than the typical controlled substance crime.” The district court’s
findings demonstrate that the court carefully evaluated all of the testimony and
information before denying appellant’s motion. Therefore, the district court did not
abuse its discretion by denying appellant’s motion for a downward durational departure.
Affirmed.
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