Court Reverses Durational Departure Based on "Offender-Related" Factors

State v. Solberg, Minn.Ct.App., 8/24/2015.  Petition For Further Review, granted, 11/17/2015.  In this sentencing challenge soon-to-be- Justice Hudson delivers a somewhat mischievous Opinion. At issue is a durational departure and whether the trial court applied the correct "offense-related" factors rather than "offender-related" factors.

In the middle of trial, Mr. Solberg entered a Norgaard plea to third degree criminal sexual conduct.  The state agreed to recommend the bottom of the presumptive guidelines sentence and agreed that Mr. Solberg could argue for a departure, either dispositional or durational.  He asked for both and the trial court granted a durational departure.

The trial court cited several "offender-related" factors to support the durational departure:  Mr. Solberg's age, his cooperation with law enforcement, and his limited criminal history, (that last one not being a proper factor at all).  This, of course, was a no no.  More problematic for Mr. Solberg, the trial court also specifically rejected the only "offense-related" factor, that the offense conduct was less serious than the "typical" CSC III offense.  

The court of appeals then switched to the Williams alternative analysis: even though the cited reasons were wrong are there sufficient appropriate reasons within the record to support the departure?  Mr. Solberg said that his remorse was a sufficient factor because it was directed not just at his wrong doing but at the seriousness of the offense as well.  This kind of "relation back" sleight of hand can support a durational departure even though it's an "offender-related" factor.  State v. Bauerly, 520 N.W.2d 760 (Minn.Ct.App. 1994).  Soon to be Justice Hudson had two responses to this argument.

First, Ms. Bauerly just barely stole enough money from her employer to elevate the offense to a felony.  So, her remorse reflected on the seriousness of the offense, and the trial court only granted a one day durational departure (felony to gross misdemeanor).  Mr. Solberg's alleged remorse came during a guilty plea in the middle of a trial that was not going very well, and so it seemed just a likely that the only "remorse" that Mr. Solberg had was that he was about to be convicted.  Not only that, the duration of Mr. Solberg's departure was a lot of months.

Second, Judge Hudson said that although case law says that a single aggravating factor may justify an upward departure, she could not find a single case saying that a single factor is enough to justify a downward durational departure.  Just why a specific factor can support a longer sentence but the same factor won't support a shorter sentence isn't explained.