Durational Departure Must Be Outside "Heartland" of Statute"s Prohibitions To Authorize Durational Departure

State v. Rund, Minn.S.Ct., 6/7/2017.  Mr. Rudd pled guilty to terroristic threats, based on some tweets that he made following what one can gather was an unpleasant traffic stop. He directed these tweets both to the officer who had stopped him and to law enforcement generally.  Mr. Rund admitted making the threatening tweets but said that he did so recklessly without intent to cause terror; he also said he was sorry for any fear that he did cause.The trial court granted him a durational departure by sentencing this felony as a gross misdemeanor.  The trial court granted this departure because in its view it was not in the "best interests of society" to saddle Mr. Rund with a felony. Along the way the trial court also concluded that the treats were more serious than the typical offense because the officers didn't know who they were dealing with.

Oops.  A durational departure must be based upon offense characteristics, most typically that the offense conduct was significantly "less serious" than the "typical" crime in question.  State v. Solberg, 882 N.W.2d 618 (Minn. 2016. Having shot itself in the foot the trial court isn't really able to recover.  Justice Chutich points all this out and sternly rejects the trial court's stated reason for the durational departure. Justice Chutich goes on to suggest, perhaps establish, some sort of "heartland" standard more reminiscent of the federal guidelines by which to gauge whether offense conduct is significantly less or more serious.  She says that because Mr. Rund's conduct "fits squarely within the statute's prohibition against making threats with a reckless disregard of the risk of causing terror, his conduct was not significantly less serious than the typical case."  Taken to its logical conclusion such a test will make durational departures all but impossible. Prosecutors will surely grab onto this language to argue that if the facts fit the elements of the crime then there simply cannot be a basis for a durational departure, if that departure purports to be based upon less serious offense conduct.