This opinion is nonprecedential except as provided by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
                                     A23-1353

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                William Arthur Kalligher,
                                       Appellant.

                                   Filed June 17, 2024
                                        Affirmed
                                      Kirk, Judge *

                              St. Louis County District Court
                               File No. 69DU-CR-21-3868

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

Kimberly J. Maki, St. Louis County Attorney, Victoria Wanta, Assistant County Attorney,
Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rebecca Ireland, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Schmidt, Presiding Judge; Worke, Judge; and Kirk,

Judge.




* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to

Minn. Const. art. VI, § 10.
                          NONPRECEDENTIAL OPINION

KIRK, Judge

       In this direct appeal from the judgment of conviction of second-degree criminal

sexual conduct and attempted first-degree criminal sexual conduct, appellant argues that

the district court abused its discretion by (1) denying his motion for a downward

dispositional departure because he is particularly amenable to probation and (2) failing to

consider his request for a stay of execution under 

 (2018) and .343

(2016). We affirm.

                                         FACTS

       In December 2022, respondent State of Minnesota charged appellant William

Arthur Kalligher in a six-count complaint with committing or attempting to commit

criminal sexual conduct. The charges stemmed from allegations that, in 2018 and 2019,

appellant sexually abused his daughter (the victim) several times in the family’s home

while she was under the age of 16.

       In April 2023, appellant pleaded guilty to second-degree criminal sexual conduct

under 

, subd. 1(g) (count III) and attempted first-degree criminal

sexual conduct under 

, subd. 1(g) (count V). The state dismissed the

remaining charges and agreed that appellant’s sentences would be concurrent and would

not exceed 72 months, and that appellant could seek a downward dispositional departure.

The district court ordered that a presentence investigation (PSI) report and a psychosexual

evaluation (PE) be completed.




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       Appellant moved for a downward dispositional departure under the sentencing

guidelines. The motion included six letters in support of appellant from family members

and an acquaintance.

       At appellant’s sentencing hearing, the district court acknowledged that it had

reviewed the PSI report, appellant’s motion for a departure, and the letters attached to the

motion. The state opposed appellant’s motion, arguing that “[t]he need for punishment to

ensure the public’s safety from [appellant] far outweigh[ed] any treatment options []

available to him.” The victim also read a victim impact statement, in which she expressed

that appellant’s actions have made it difficult for her to trust people and form relationships,

that she has had difficulties understanding herself and has been diagnosed with anxiety and

depression, and that she wanted to “see him get what he deserves.” Appellant submitted a

letter for the district court’s consideration in which he apologized and expressed shame and

remorse. Appellant’s counsel argued that, based on the PE, appellant was amenable to

probation and would benefit from local probation, and that the sentencing guidelines and

subdivision 3 of 

 and .343 permitted a departure in this case.

       The district court denied appellant’s motion and sentenced appellant to a

presumptive sentence of imprisonment for 36 months on count III and 72 months on count

V, to run concurrently.

       This appeal follows.




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                                         DECISION

       Appellant argues that the district court abused its discretion by (1) denying his

motion for a downward dispositional departure under the sentencing guidelines and

(2) failing to consider granting a stay under 

, .343. We address each

of appellant’s arguments in turn.

I.     The district court did not abuse its discretion by denying appellant’s motion to
       impose a dispositional departure under the sentencing guidelines.

       Appellant first argues that the district court abused its discretion by denying his

motion based on the improper conclusion that he was not particularly amenable to

probation in “this case” specifically.   Appellant argues that his demonstrated remorse,

awareness of the harm he inflicted, accountability, proven track record with community

supervision, desire for rehabilitation, and meaningful support from his family and

community members all support his particular amenability to probation. We are not

persuaded.

       The Minnesota Sentencing Guidelines establish presumptive sentences for felony

offenses. 

, subd. 5 (2016). 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 (Supp. 2017); see also State

v. Pegel, 

 (Minn. App. 2011). The sentencing guidelines establish a

“nonexclusive list of factors that may be used as reasons for departure.” Minn. Sent’g

Guidelines 2.D.3 (Supp. 2017).




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       “A dispositional departure places the offender in a different setting than that called

for by the presumptive guidelines sentence” and “typically focuses on characteristics of the

defendant that show whether the defendant is particularly suitable for individualized

treatment in a probationary setting.” State v. Solberg, 

 (Minn. 2016)

(quotation omitted). When determining whether a defendant is particularly amenable to

probation, a district court may consider factors “including [but not limited to] ‘the

defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court,

and the support of friends and/or family.’” State v. Soto, 

 (Minn.

2014) (quoting State v. Trog, 

 (Minn. 1982)).

       If substantial and compelling circumstances exist, “[t]he decision whether to depart

from [the] sentencing guidelines rests within the discretion of the [district] court and will

not be disturbed absent a clear abuse of that discretion.” State v. Oberg, 

 (Minn. App. 2001), rev. denied (Minn. Aug. 22, 2001). “A district court abuses its

discretion when its decision is based on an erroneous view of the law” or when its factual

findings are clearly erroneous because they are not supported by the record.

State v. Guzman, 

 (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, 

 (quotation omitted). Only in rare cases will an

appellate court reverse a district court’s imposition of a presumptive sentence.

State v. Olson, 

 (Minn. App. 2009).




                                               5
       Here, the record clearly demonstrates that the district court imposed the presumptive

sentence only after carefully evaluating the testimony and information presented. At the

sentencing hearing, the district court noted that it had been “thinking about [the] case since

[appellant] entered the plea.” After acknowledging that it had read appellant’s statement,

the PSI report, the PE, and appellant’s motion and letters, and noting that it respected the

parties’ arguments, the district court stated:

              But then I listen to [the victim] talk, and it just breaks my heart.
              And you did that. [] That was your daughter. [] And then I read
              through the [PE]: Demonstrates conning, manipulation,
              pathological lying, grandiose sense of self-worth, deficits in
              displaying remorse or guilt, shallow [a]ffect, callousness and a
              lack of empathy, failure to accept responsibility for your own
              actions, lack of realistic long-term goals, and on and on. You
              probably are amenable to probation. I certainly think that you
              have done some good things. I wonder if part of that was trying
              to make up for the absolutely monstrous things you did to your
              own children. I don’t know. I—I don’t have the answer to it.
              Do I think that you might be—that you’re amenable to
              probation in other types of cases? Certainly. Do I think you’re
              particularly amenable to probation in this case? No, I do not.
              I do think that prison is the appropriate answer here. 1

       Even if a mitigating factor is present, a district court is not obligated to place a

defendant on probation or otherwise depart from the presumptive sentence. State v. Wall,

 (Minn. 1984). Further, “when [a] court considers reasons for departure

but elects to impose the presumptive sentence,” it is not required to provide an explanation.

State v. Van Ruler, 

 (Minn. App. 1985). Here, the district court did

consider appellant’s amenability to probation as a reason for departure but elected to



1 Appellant’s affirmative responses are excluded from the quote.



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impose the presumptive sentence, and it provided an explanation—that the victim’s

statement and appellant’s PE supported that his imprisonment was the “appropriate answer

here.”

         Further, the district court’s finding that appellant was not particularly amenable to

probation in this case is not clearly erroneous. The district court’s statements to appellant

before denying his motion make clear that it considered offender-related mitigating factors.

Solberg, 

. Moreover, a defendant may be amenable to probation while

still failing to be particularly amenable to probation.      Soto, 

. A

defendant’s particular amenability to probation may justify a departure. 

 (noting that

“[o]ur consistent use of the words ‘particular’ and ‘particularly’ in this context is not

accidental”). Even though the PSI identified appellant’s amenability to probation as a

potential mitigating factor, this was based on appellant’s own statement that he was willing

to take necessary steps to complete probation.         Neither the PSI report nor the PE

recommended that appellant be placed on probation, and we agree with the district court

that they do not show that he is particularly amenable to probation.

         We conclude that the district court did not abuse its discretion by denying

appellant’s motion to impose a downward dispositional departure.

II.      Appellant failed to present sufficient evidence for the district court to consider
         a stay of execution under 

, .343.

         Appellant next argues that remand is proper because the district court abused its

discretion by failing to consider the alternate basis for a stayed sentence under 

, .343. Appellant relies on the nonprecedential case State v. Lichtsinn, No. A10-



                                               7
1555, 

 (Minn. App. May 9, 2011), in support of his argument. We are

not convinced.

       Both 

 and .343 contain identical subdivision 3 language that

provides, unless an exception applies, that

              if a person is convicted under subdivision 1, clause (g), the
              court may stay imposition or execution of the sentence if it
              finds that:
                     (a) a stay is in the best interest of the complainant or the
              family unit; and
                     (b) a professional assessment indicates that the offender
              has been accepted by and can respond to a treatment program.

       As an initial matter, appellant mentioned this argument only in passing before the

district court, and did not argue that the execution of appellant’s sentence should be stayed

based on the separate standard outlined under 

 and .343. Further,

the record does not support that appellant presented sufficient evidence to meet the 

, .343 standard to allow the district court to consider imposing a stay. First,

appellant did not provide a professional assessment indicating that he had been accepted

by and could respond to a treatment program. The plain language of subdivision 3 requires

that a district court find both that a stay would benefit the complainant or family unit and

that a professional assessment indicates that appellant has been accepted by and is

amenable to a treatment program. State v. Hamacher, 

 (Minn. App.

1994) (noting that 

, subd. 3(b) requires that defendants be admitted

to treatment program). Appellant relies on his PE, which recommended that he participate

in individual mental health services and sex-offense-specific treatment. This evidence is




                                              8
insufficient to allow the district court to consider a stay under 

 or

.343.

        Further, the record does not reflect that a stay “is in the best interest of the

complainant,” and is conflicting regarding whether a stay “is in the best interest of the

. . . family unit.” 

, subd. 3(a), .343, subd. 3(a).      The victim,

appellant’s daughter, spoke about the harm appellant had caused her and that she wanted

“him to get at least five to six years, because that’s what he took from [her].” Since

committing the offense, appellant and the victim’s mother divorced and “he does not want

to have anything to do with [the victim’s mother].” Although other members of appellant’s

family, including appellant’s father, stepmother, sister, and two sons, submitted letters in

support of him, those letters are not dispositive.

        Moreover, appellant’s reliance on Lichtsinn is unpersuasive.          The case is

nonprecedential and therefore not binding on us. Minn. R. Civ. App. P. 136.01, subd. 1(c).

Even if it was binding, it is inapposite.      In Lichtsinn, the district court had treated

appellant’s request for a downward dispositional departure as a request made solely under

, subd. 3, even though defense counsel made no arguments in support

of that standard at the sentencing hearing and only argued factors relevant to a departure

under the sentencing guidelines. 

 at *3. Because the record contained

significant evidence to indicate that the defendant in that case was amenable to probation

and was unclear as to whether the district court had carefully evaluated or even considered

that evidence in denying the defendant’s request to depart, remand was appropriate. 

.


                                              9
       Here, the district court properly exercised its discretion by denying appellant’s

request to depart under the sentencing guidelines. Further, unlike in Lichtsinn, the record

does not contain evidence in favor of granting appellant a stay under subdivision 3 of 

 or .343, nor did appellant argue that standard before the district court.

       Affirmed.




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