State v. Solberg, Minn.S.Ct., 7/27/2016. Mr. Solberg entered a Norgaard plea to criminal sexual conduct in the third degree, claiming that his memory was impaired as a result of intoxication at the time of the offense. The trial court granted a downward durational departure; the court relied on three factors that were offender-based factors - Mr. Solberg's age, family support, and cooperation - and a fourth factor, remorse. The court of appeals reversed this departure. Judge, now Justice, Hudson, said that although a single aggravating factor may justify an upward departure she could find no case law saying that a single factor is enough to justify a downward durational departure.
Justice Chutich smacks down her colleague and says that a single mitigating factor is, indeed, enough to support a downward durational departure. In this case, it's Mr. Solberg's remorse. Remorse remains one of those factors that the court doesn't really know what to do with. It's said, vaguely, that "there may be cases in which the defendant's lack of remorse could relate back and be considered as evidence bearing on a determination of the cruelty or seriousness of the conduct on which the conviction was based." Got that? Right. State v. McGee, 347 N.W.2d 802, 804 (Minn. 1989). Without any analysis that could carry forward to other cases, the Justice summarily concludes that Mr. Solberg's remorse did not diminish the seriousness of his conduct so the trial court did err in imposing the downward durational departure.
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