"Minor or Passive" Role Supports Dispositional Departure

State v. Stempfley, Minn.S.Ct., 8/16, 2017.  A jury found Mr. Stempfley guilty of third and fourth degree criminal sexual conduct on an accomplice liability theory.  After a lot of drinking B.D., age fourteen, Tina Smith, age twenty-four, and Mr. Stempfley, age thirty eight, found themselves late at night in a one room cabin in the woods. 

There was more drinking and memory and accounts of events started to diverge.  B.D. said that Tina Smith got on top of her, began kissing her, pulled her pants down and engaged in oral sex. B. D. also said that while this was going on Mr. Stempfley held one or both of her hands and penetrated her vagina with his fingers. While Mr. Stempfley continued holding B.D.'s hand. B.D. said that Tina penetrated her vagina with her tongue.

As might be expected, everyone's account got impeached.  B.D. had previously admitted that she didn't remember much of what had happened.  Tina Smith said that B.D. removed her own clothes and willingly participated in their kissing.  Tina had said at trial that when she engaged in oral sex with B.D. she asked Mr. Stempfley to grab B.D.'s arms, which he did.  Tina had previously stated that Mr. Stempfley had not held B.D.'s arms during the oral sex.  

And so on.

The jury acquitted Mr. Stempfley of the counts which charged him as a principal.  At sentencing he moved for a dispositional departure, arguing that he had played a "minor or passive role" in the (Smith) offenses and that he was particularly amenable to probation.  Inexplicably, the state did not dispute that what sounds like offense based reasons were a valid basis for a dispositional departure.  Instead, it argued both that the trial court had not made adequate findings and that even if it did those findings didn't support the departure.  Here's what Justice Chutich said about that:

When we compare Stempfley’s role to that of Smith, the record supports the district court’s finding that Stempfley played a minor role here. Smith was the one who started drinking with B.D., invited B.D. to the cabin, and initiated the sexual penetration that is the basis for Stempfley’s conviction. Stempfley’s conduct—not objecting to B.D.’s visit to the cabin or her drinking and holding one or both of B.D.’s hands—was comparatively minor. According to Smith’s testimony and the jury’s verdict, Stempfley did not have any sexual contact with B.D. Nor did he prompt or encourage Smith to begin sexual contact with B.D. Smith testified that Stempfley did not become involved in Smith’s sexual penetration of B.D. until Smith asked him to hold B.D.’s hand, which is consistent with a finding of passivity. These facts are sufficient to support the conclusion that Stempfley’s offense was significantly less serious than the typical case. 

That last sentence is more typically what gets said to support a durational departure, rather than a dispositional departure.  

The court was quick to emphasize that one's status as an accomplice is not enough to support a departure.  "As the law requires, the district court's departure analysis focused on the facts of this particular case." Summing up, Justice Chutich said:

In sum, we are bound to uphold the district court’s evaluation of the facts and its discretionary sentencing decision unless our review of the record reveals an abuse of that discretion. Applying this deferential standard, we conclude that the district court acted within its broad discretion here. The trial testimony is conflicting and must be interpreted in light of the jury’s verdict, which rejected a large portion of the State’s case. Without the benefit of observing witness testimony and the opportunity to weigh credibility, we cannot say that the district court abused its discretion by finding that Stempfley’s minor or passive role in the offense was a substantial and compelling reason to depart from the Guidelines. Even if we might have come to a different conclusion had we been weighing the evidence ourselves, that is not the applicable standard upon appellate review.

Justice McKeig took no part.  Justice Hudson dissented.  She took umbrage at what the trial court said supported the departure, and how the court said it, remarks that she characterized as "colloquial and offhand comments":

[T]he district court made three statements that Stempfley contends support his dispositional departure: Smith “was the primary aggressor,” Smith “was the one that got things going,” and “basically the train had already left the station” when Stempfley got involved.

Covering the bases, Justice Hudson also said that even if these "colloquial and offhand remarks" constituted sufficient findings they still didn't support the departure.  These findings, if they were "findings," did not amount to the "substantial and compelling" circumstances to support either that Mr. Stempfley played a minor or passive role or that his offense conduct was less serious than the typical case.  As Justice Hudson saw it: 

Stempfley’s intervention, particularly as an adult male aiding and abetting the sexual assault of a child, cannot constitute a minor or passive role.

.....

 [T]he majority’s exclusive focus on why Stempfley’s conduct was minor or passive solely in comparison to Smith’s conduct misses the mark. Without evidence in the record demonstrating why this case is different from the typical case of aiding and abetting a sexual crime—and not merely that Stempfley’s conduct was different than Smith’s—the dispositional departure is unsupported by the record.

Finally, Justice Hudson is annoyed and concerned by the majority's failure to address the typical dispositional departure question, "Is Mr. Stempfley particularly amenable to probation?"  She's worried that by its silence on this question, the court has surely left itself open to the claim that playing a "minor or passive" role is itself sufficient to support a dispositional departure.  If nothing else, the majority's silence muddies the waters on what's fair game to argue in support of a dispositional departure.  

Whether An Out of State Juvenile Conviction Would Have Been Certified For Adult Prosecution in Minnesota Is Not a Blakely Jury Question

State v. Edwards, Minn.Ct.App., 8/14/2017.  A jury convicted Mr. Edwards of second degree assault.  Mr. Edwards complained on appeal that the trial judge had screwed up the jury instructions by omitting the statutory definitions of "great bodily harm" and "bodily harm".  He had not, however, made that complaint during trial so the court of appeals applies the "plain error" standard of review to reject this assertion. The court of appeals jumped straight to the third part of the "plain error" test, whether any error affected Mr. Edwards' substantial rights.  The court said, no, it didn't.

The trial court included two juvenile convictions from Wisconsin in computing Mr. Edwards' criminal history score.  The Guidelines require that the "fact finder" determine whether those juvenile convictions would have been certified for adult prosecution in Minnesota.  Mr. Edwards said that this question needed to be put to a jury under Blakely because it was a "fact" which increased the penalty for the crime beyond the prescribed statutory maximum. The court of appeals said, no, this comes under the prior conviction exception to Blakely and may be determined by the judge.  The court said that the trial court can make this determination because the fact of the prior convictions is not an element of the new crime. Whether a juvenile conviction from another state would have been certified for adult prosecution in Minnesota is also a legal question and not a "fact" question (like did Mr. Edwards have a knife when the comitted the assault).  

State v. Provost, Minn.Ct.App., 8/14/207.  This is a sentencing appeal. The state's position was that it knew that the trial judge got it wrong, but, hey, it doesn't matter, you should still affirm what everyone knew was an illegal sentence.  Here's the deal.

Mr. Provost pleaded guilty to second degree burglary.  Based upon a criminal history score of six the trial judge gave him a middle of the box sentence of forty-eight months.  That was correct at the time.  But then, Mr. Provost got the benefit of State v. Haywood, the air-powered BB gun case.  This knocked a point and a half off Mr. Provost's criminal history score.  So, he sojourned back to the burglary judge and asked for a redo on that sentence.  The burglary judge summarily denied that request.

The burglary judge told Mr. Provost, look, because of the overlap in the grid boxes the forty-eight month sentence was an authorized sentence regardless of the Haywood victory.  The court of appeals responds, no, no, an illegal sentence is an illegal sentence:

The Minnesota Supreme Court has held that a district court “must use accurate criminal history scores in order to set mandatory presumptive sentences that comply with the Minnesota Sentencing Guidelines.” State v. Maurstad, 733 N.W.2d 141, 142 (Minn. 2007). Because of this requirement, the supreme court has stated that any “sentence based on an incorrect criminal history score is an illegal sentence” that is “correctable ‘at any time.’” Id. at 147 (quoting Minn. R. Crim. P. 27.03, subd. 9). Under Maurstad, Provost’s sentence is not authorized by law, and the district court did not properly exercise its discretion when it concluded that it lacked the authority to modify his sentence. 

The court of appeals sent the case back to the burglary judge with instructions for that court to do its job:  exercise its discretion, utilizing a correct criminal history score, to determine Mr. Provost's sentence.

DSRA Increased Weight Threshold Does Not Entitle Defendant To Dismissal of Charges

State v. Otto, Minn.S.Ct., 7/26/2017.  This is a companion case to State v. Kirby, decided the same day with basically the same alignment of justices.  Just as Mr. Kirby got the benefit of the reduced Guidelines sentencing range, so, too, does Mr. Otto.

The added wrinkle for Mr. Otto is that the DSRA increased the weight threshold for his crime of conviction.  Mr. Otto possessed 29 grams of methamphetamine, which at the time of his trial satisfied the weight threshold of 25 grams.  After enactment of the DSRA, however, those 29 grams no longer satisfied the weight threshold.  Mr. Otto said that his conviction should be vacated and the charges dismissed.  Justice Lillehaug, for all seven members of the court, reject this assertion, pointing to the DSRA language that says that the new legislation did not apply to crimes committed prior to its effective date.

Offenders Whose Convictions Were Not Final on Effective Date of Drug Sentencing Reform Act Get Benefit of Reduced Guidelines Sentencing Ranges

State v. Kirby, Minn.S.Ct., 7/26/2017.  The trial court imposed a presumptive Guidelines sentence of 161 months for Mr. Kirby's conviction of first degree possession of methamphetamine.  The legislature then enacted, and the governor signed, the Drug Sentencing Reform Act (DSRA).  The pertinent part of that Act for Mr. Kirby is that it reduced the presumptive Guidelines sentencing range for his offense.  Mr. Kirby said that he should be re-sentenced under this reduced Guidelines range. In a 4-3 Opinion, Justice Lillehaug agreed.  Justice G. Barry Anderson dissented, joined by Chief Justice Gildea and Justice Stras.

The DSRA said that it applied "to crimes committed on or after [it's effective date]."  Significantly, it did not say something like, "Crimes committed prior to the effective date of this act are not affected by its provisions."  Justice Lillehaug said that a statement to that effect would abrogate what's called "the amelioration doctrine," which says that an offender whose conviction is not yet final gets the benefit of a statute that reduces punishment for the offender's crime.  

Prior cases establish that the amelioration doctrine applies when:

(1) there is no statement by the Legislature that clearly establishes the Legislature’s intent to abrogate the amelioration doctrine; (2) the amendment mitigates punishment; and (3) final judgment has not been entered as of the date the amendment takes effect. 

The state took aim at the first requirement; it threw up a multitude of reasons to support its assertion that the DSRA had abrogated the doctrine.  Justice Lillehaug rejects them all.  The most cogent reason, which is what the dissenters latched onto, are two provisions in the Sentencing Guidelines.  Both of them have been there forever.  The first one says that "The presumptive sentence . . . is determined by the Sentencing Guidelines in effect on the date of the conviction offense . . . . Minn. Sent. Guidelines 2."  Justice Lillehaug concludes, seemingly out of thin air, that this is only a reference to ex post facto, which prohibits a judge from sentencing a defendant under a law that increased punishment from what the punishment was at the time of the offense.  The other Guidelines provision that the state and dissenters pointed to says that policy modifications to the Guidelines apply to offenders whose date of offense is on or after the specified modification date.  Justice Lillehaug decides that policy changes don't include the sentencing Grid.

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.

Criminal History Score Decay Calculation is From Discharge/Expiration of Sentence to Start Date of a Continuing Offense.

State v. Washington, Minn.Ct.App., 3/27/2017.  The state charged Mr. Washington with violation with the predatory offender registration law. One of Mr. Washington's prior convictions hit the fifteen year decay milestone during the commission of the new offense.  He said that the trial court could not, therefore, count that decayed conviction in computing his criminal history score.

The Guidelines say that the decay is measured as fifteen years since the date of discharge or expiration of sentence to the date of the current offense.  The court says that this calculation is from either discharge or expiration to the state date of a continuing offense.

For Sex Offenders Serving a Life Sentence "Minimum Term of Imprisonment" Before Eligible for Release Consideration is a Guidelines Number

Rushton v. State, Minn.S.Ct., 1/25/2017.  Certain repeat sex offenders are subject to a statutory requirement of a life sentence with possibility of release.  Minn. Stat. 609.3455, subd. 4. Subdivision 5 of this statute directs the district court to “specify a minimum term of imprisonment, based on the sentencing guidelines or any applicable mandatory minimum sentence” that “must be served before the offender may be considered for supervised release.” Minn. Stat. § 609.3455, subd. 5. Mr. Rushton is serving such a life sentence with possibility of release.  He thought, however, that "minimum term of imprisonment" meant two-thirds of his presumptive guidelines sentence.  There's a statute that says just that, Minn.Stat. 244.101, subd. 1(1); "minimum term of imprisonment" is defined as "equal to two-thirds of the executed sentence."

Justice Chutich, however, thought that the more specific directive of 609.3455, subdivision 5 controlled.  The court still had to interpret the phrase "minimum term of imprisonment," which it did by saying that the language of the statute was unambiguous.  The reference to the guidelines meant that the trial court was required to determine the offender's criminal history score on the two axis and pick a number from the resulting box.  That number would be the "minimum term of imprisonment" that the offender would have to serve before he could be considered for release.

The court was clear in saying that this was the drill for sex offenders subject to the life sentence under 609,3455.  For everyone else "minimum term of imprisonment" means two-thirds of the actual sentence:

Nothing in our opinion today should be read as altering the general definition of “minimum term of imprisonment” contained in section 244.101 or Minnesota Sentencing Guidelines 1.B.7 for cases not involving a mandatory life sentence under Minnesota Statutes § 609.3455, subd. 5. As we stated in Hodges, “[i]n most cases, the minimum term of imprisonment ‘is the period of time equal to two-thirds of the inmate’s executed sentence.’ ” 784 N.W.2d at 829 n.2 (emphasis added) (quoting Minn. Stat. § 244.01, subd. 8). But, in cases involving a mandatory life sentence for certain repeat sexual offenders, Minnesota Statutes § 609.3455, subd. 5, and Minnesota Sentencing Guidelines 2.C.3(a)(1) provide a different method for calculating a minimum term of imprisonment. 

Minn.Stat. 244.10.5a(b) Permits Aggravated Sentence Based on Any Aggravating Factor Arising From Same Course of Conduct

State v. Fleming, Minn.S.Ct., 8/17/2016.  Someone cut Mr. Fleming with a knife while the two were apparently playing basketball on a court in some park; illegal screen perhaps.  In any event, Mr. Flemming pulled a gun out of his backpack and fired off six rounds.  There were lots of adults and kids around when this happened.

Mr. Fleming pled guilty to both assault and possession of a firearm by an ineligible person.  The trial court imposed a 90 month sentence on the firearm possession conviction; the trial court initially stayed that sentence but when Mr. Fleming violated probation the court executed the sentence.  Mr. Fleming appealed. He said that although his possession of the firearm created a greater than normal danger to the safety of other people, he created that greater danger by committing the assault.  That being the case, Mr. Fleming then said that a court can't rely on conduct underlying one conviction to support a sentencing departure for a separate conviction.

Both the trial court and the court of appeals rejected this argument, relying upon a 2009 amendment to Minn.Stat. 244.10, subd. 5a(b):

Notwithstanding section 609.04 or 609.035, or other law to the contrary, when a court sentences an offender for a felony conviction, the court may order an aggravated sentence beyond the range specified in the sentencing guidelines grid based on any aggravating factor arising from the same course of conduct.

The supreme court accepted review.  Justice Dietzen doesn't really have a whole lot to say about this beyond what the court of appeals already said.  The "plain language" of the statute means just what it says:  the statute authorizes a departure based on "any aggravating factor" "notwithstanding" whatever either 609.04 or 609.035 say.

Single Mitigating Factor Can Support Sentencing Departure

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.

Three Prior Burglaries Were Not a Single Behavioral Incident And So All Count Toward Criminal History Score

State v. Drljie, Minn.Ct.App., 3/7/2016.  When does a series of crimes make up a "single behavioral incident" and when does it not?  That's the question confronting the court in this sentencing appeal.  For Mr. Drljie four judges - the trial judge and three appellate judges - have said that his previous burglaries are not a "single behavioral incident."

Mr. Drljie pled guilty to first degree aggravated robbery.  He already had three burglary convictions.  He and a buddy broke into a building that housed an art studio, a liquor store, and a coffee house.  The guys could only find an aluminum ruler and t-square to take from the art studio. From the art studio, the guys broke through a wall to get into the liquor store where they took a lot of boxes of booze.  Again from the art studio, they broke through a sealed door into the coffee house where they took some cash.

If these three burglaries, which occurred back to back to back, were part of a single behavioral incident then the Guidelines say that only two of them can be counted on his worksheet for the aggravated robbery.  Otherwise, all three of them can be counted. For Mr. Drljie, if all three count then the presumptive sentence is 88 months; if only two count then the presumptive sentence is, well the court doesn't say.  

Nothing really of substance comes out of this decision, as the court engages in a fact specific analysis.  About the best they can do is this:

Moreover, the three burglaries appear to lack the unifying criminal goal necessary for them to constitute a single behavioral incident. Not only did appellant and his codefendant separately break into the three businesses, they also removed different items from each business, including the ruler and t-square from the art studio, boxes of liquor from the liquor store, and $150 in cash from the coffee house.

Departure in Assault Conviction Based Upon Victim Injury Okay Where Defendant Has Prior Conviction Involving Injury

State v. Meyers, Minn.S.Ct., 9/30/2015.  A jury convicted Mr. Meyers of assault in the first degree for the stabbing injuries to the victim.  The trial court imposed an aggravated sentence based on this injury and upon Mr. Meyer's previous conviction in which that victim had been injured. Section II.D.2.b(3) says that a valid ground for departure exists when:

[t]he current conviction is for a [c]riminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured and there is a prior felony conviction for a [criminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured.

The court of appeals upheld this sentence departure.  Read about that here.  Chief Justice Gildea, Justice Dietzen not participating, upholds the court of appeals although on more simplified reasoning.  The chief says that because the requirement for the previous conviction in which the victim was injured is not an element of the current offense, there is no violation of the rule that says that a departure can't be based on an element of the offense. State v. Osborne, 715 N.W.2d 436 (Minn. 2006).   Put another way, a departure can be based on an element of the offense so long as the legislature has tacked on another requirement to authorize the departure.  So, while the quantity of drugs alone can't support a departure, State v. McIntosh, 641 N.W.2d 3 (Minn. 2002), the quantity of drugs plus a finding that a defendant's past includes whatever the legislature chooses to use as an enhancer, does support a departure.

Minn.Stat. 244.10.5a(b) Permits Aggravated Sentence Based on Any Aggravating Factor Arising From Same Course of Conduct

State v. Fleming, Minn.Ct.App., 9/8/2015.  The state charged Mr. Fleming with possession of a firearm by an ineligible person, and with assault in the second degree.  Someone cut Mr. Fleming with a knife while the two were, one supposes, playing basketball.  In response, Mr. Fleming pulled a gun out of his backpack and fired off six rounds.  There were lots of adults and kids around when this happened.  Mr. Fleming pled guilty to both of these offenses.

The trial court imposed a 90 month sentence on the firearm possession conviction, stayed for eight years.  This represented a dispositional departure - probation - and a durational departure - 90 months instead of 60.  The court also stayed a 36 month sentence on the assault, concurrent with the other stayed sentence.  The court explained that the dispositional departure was because the victim had been the initial aggressor and Mr. Fleming had an imperfect self-defense claim.  The court explained the durational departure was because of the "unique seriousness" of the offense.  The court went on to say:

Going back to the caselaw and taking into account the general nature of the aggravating factors that may be considered, this court finds the danger to the general public— those innocent children, families, and community members in the area of Folwell Park—cannot be overstated. Bullets kill and maim. Bullets do not know their target, and can kill or maim unintended victims. Mr. Fleming’s actions threatened to harm or kill at least six people. And, as is readily apparent, his actions negatively impacted the lives of hundreds[, and] added to the steady drumbeat of negative reports of crime in North Minneapolis. Nothing good came out of Mr. Fleming’s actions. 

This might have been the end of the story except that subsequently Mr. Fleming violated certain conditions of his probation.  The court revoked the previously stayed 90 months sentence on the firearm possession charge, (after which Mr. Fleming demanded execution of the concurrent 36 month sentence.

Mr. Fleming appealed, reaching  back to the initial sentence and saying that the trial court made a mistake by the upward durational departure from 60 to 90 months.  Mr. Fleming agreed that his conduct created a greater than normal danger to the safety of other people, but said that he created this greater danger by committing the assault.  Case law says, Mr. Fleming said, that a court can't rely on conduct underlying one conviction to support a sentencing departure for a separate conviction.  State v. Spaeth, 552 N.W.2d 187, 196 (Minn. 1996).

Well, that was true back in the '90's but the legislature changed the law in 2009 when it amended Minn.Stat. 244.10, subd. 5a(b):

Notwithstanding section 609.04 or 609.035, or other law to the contrary, when a court sentences an offender for a felony conviction, the court may order an aggravated sentence beyond the range specified in the sentencing guidelines grid based on any aggravating factor arising from the same course of conduct.

The Court of Appeals says that this is the first judicial opinion applying this 2009 amendment.  The court concludes that the amendment means exactly what it says: it authorizes a departure based on any aggravating factor that arises from the same course of conduct as the felony sentencing offense.  Just to be sure, however, the Court also says that because multiple punishments are permissible for Mr. Fleming's convictions there is no prohibition against basing a departure on conduct underlying another conviction.  State v. Grampre, 766 N.W.2d 347 (Minn.Ct.App. 2009), review denied, (Minn. Aug. 26, 2009).

The court also examined the revocation, itself, and concludes that the trial court properly applied the Austin factors in revoking Mr. Fleming's probation.

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.  

Court Approves Imposing Same Sentence on Remand From Successful Appeal Even Though Sentence Is On Lesser Included Offense

State v. Kangbateh, Minn.S.Ct., 8/5/2015.  A jury convicted Mr. Kangbateh of attempted second degree murder for the benefit of a gang, attempted second degree murder, second degree assault for for the benefit of a gang, and second degree assault.  The trial court sentenced Mr. Kangbateh to an executed term of 165 months on the attempted second degree murder for the benefit of a gang.  For Mr. Kangbateh's criminal history score, the presumptive sentencing range was 130 months to 183 months, with a presumptive duration of 153 months.  The trial court imposed an executed sentence of 165 months; more about that later.

Mr. Kangbateh appealed.  The court of appeals agreed with him that the state had failed to present sufficient evidence on the benefit of a gang so it reversed his convictions of attempted second degree murder for the benefit of a gang and second degree assault for the benefit of a gang.  That court remanded with instructions to sentence Mr. Kangbateh on the (plain) attempted second degree murder.

On remand, the trial court imposed an executed term of, well, the exact same 165 months on the lesser included offense of attempted second degree murder.  Mr. Kangbateh appealed that sentence.  He said that at the first sentencing, the trial court had imposed a sentence of 153 months on the attempted second degree murder and that that sentence was then automatically enhanced an additional twelve months for the gang benefit element.  On remand, Mr. Kangbateh argued, the trial court was stuck with that 153 months even though by this time the trial court was sentencing him for an entirely different offense, "plain" attempted second degree murder. Now to give him 165 months on the "plain" attempted second degree murder violated the Prudhomme rule that says that a defendant can't get more time after a successful appeal than originally imposed. Justice Anderson, for five members of the court, rejects this argument in a form over substance sleight of hand.  Here's how it goes.

At the sentencing hearing, no one - not the court, the defense, the prosecutor, the probation officer who wrote the PSI - bothered to mention explicitly this 153 plus 12 months analysis.  Apparently, this 165 sentence, which is exactly the presumptive duration of 153 months plus the 12 month enhancement for the gang benefit, just sort of fell out of the ceiling during the initial sentencing hearing. On remand for sentencing on the "plain" attempted second degree murder count, the trial judge just happened to up the presumptive duration of 153 by exactly 12 months.  

To justify this, the court changes the subject.  Now it's whether the trial court was being "vindictive" at the remand sentencing rather than that the trial court had come to the correct initial sentence - 153 + 12 - without realizing it and was now stuck with the 153. The majority is unwilling to find such vindictiveness and so the sentence on this lesser included offense is affirmed.

This result produces an unlikely pairing of Chief Justice Gildea and Justice Page dissenting.  They are unwilling to go down this rabbit hole.  Here's how Justice Page's dissent begins:

I respectfully dissent. In my view, the sentencing court calculated Kangbateh’s initial sentence of 165 months by adhering to the Minnesota Sentencing Guidelines, which required the sentencing court to add 12 months for the offense committed for the benefit of a gang to the presumptive duration for the predicate offense of attempted second-degree murder. 1 Because it is axiomatic that a defendant may not be punished for an offense for which there is no conviction and because in this case we know that Kangbateh’s original sentence specifically included 12 months for an offense that was reversed on appeal, on remand the sentencing court was required, at a minimum, to subtract 12 months from Kangbateh’s sentence.

Where Concealment of Body is Part of Single Behavioral Incident and Committed in Particularly Serious Way Then Guidelines Authorize Upward Departure

State v. Hicks, Minn.S.Ct., 6/3/2015.  Judy Rush went missing in August, 2007.  Initial investigation suggested that if the large amount of blood found in her apartment were Judy's then she was dead. Three years later, Ms. Rush's remains were discovered in a shallow grave in a park in Brooklyn Park.  The state charged Mr. Hicks with second degree intentional and unintentional murder.  The court - Mr. Hicks waived both his right to a jury trial and to counsel - convicted him of second degree unintentional murder.

The court then granted the state's motion for an upward durational departure.  The court determined that the disposal and concealment of the body constituted particular cruelty "under the facts."  The court of appeals affirmed.  That court reasoned that concealment of the body is particularly cruel and thus supports a departure.  That court also rejected Mr. Hicks' argument that the concealment was a separate, uncharged offense that could not be used to justify an upward departure.

Justice Dietzen, writing for five members of the court - Justices Wright and Page dissented - admitted that the court's past pronouncements on whether concealment of a victim's body would support a departure have not been free from confusion.  In its most recent iteration on the subject, State v. Leja, 684 N.W.2d 442 (Minn. 2004), the court could not muster a majority opinion.  Justice Paul Anderson's plurality opinion garnered only three votes for rejecting a departure based only on the concealment of the body.  Chief Justice Blatz got three votes for authorizing a departure on that basis. Justice Russell Anderson concurred in the result but for the reason that the concealment was a separate offense that could not be used to authorize the departure. 

Justice Dietzen gets five votes to authorize a departure on the single factor of concealment of a homicide victim's body.  Concealment of the body makes the offender's conduct:

more serious than the typical second-degree unintentional murder because family and friends of a victim suffer additional trauma by not knowing whether their relative or friend is dead or alive, and concealment is contrary to the proper, respectful treatment due to the remains of a deceased person.

Justice Dietzen insists that this is not about particular cruelty; it's about a-typicality. (But, then again, a homicide followed by concealment of the body make up a pretty small subset of all homicides, so it's fair to anticipate that the state is going to assert in just about every homicide followed by concealment of the body that the offense qualifies for a departure.  Moreover, the precise "a-typicality" is the "cruelty" to the survivors, which is always going to be present, at least in the court's mind.)

There's more.  Those harmed by the offender's conduct no longer must be present during the commission of the crime.

The court does place some restrictions on the availability of a departure based on concealment of the body.  The court concluded that Mr. Hicks's concealment of the body was part of a "single behavioral incident" so if that's not the case then a departure may not be authorized.   Where the concealment is part of a single behavioral incident then all of those facts must show that the offender committed the offense that is being sentenced in a "particularly serious way" to support a departure.

Justice Wright, joined by Justice Page, dissented.    

When Imposing Consecutive Sentences For Burglary & CSC III The Burglary Gets Sentenced First

State v. Jerry, Minn.Ct.App., 5/26/2015.  The district court found Mr. Jerry guilty of burglary in the first degree and with criminal sexual conduct in the third degree.  The court found that Mr. Jerry came into S.E.’s home without permission, grabbed and pushed her against the bedroom wall, and then sexually assaulted her.  The trial court imposed consecutive, executed sentences.  Even though the burglary was first in time, the court sentenced the CSC III first.  The state’s theory for this was that the burglary conviction “was predicated or conditioned upon [Mr. Jerry’s] completion of the criminal sexual conduct.”

Yeah, beats me what that means.  Except that what it meant to Mr. Jerry was that his combined sentence jumped from 186 months (129 months on the burglary and 57 months on the CSC III), to 237 months (180 months on the CSC III and 57 months on the burglary). 

With one dissent, the court of appeals makes short shrift of this theory.  A burglary, the court points out, is complete upon entry.  (Insert list of citations.)  The subdivision of the burglary statute requires that an assault be committed determines the sentence.  Here, the trial court found that Mr. Jerry had entered S.E.’s house and assaulted her before the sexual assault.  Under those findings the burglary was certainly complete once Mr. Jerry had entered the house and committed the assault.  The burglary gets sentenced first.  The trial court erred as a matter of law by sentencing the CSC III first.

Sentencing Errors Require Remand for (Partial) Resentencing

State v. Crockson, Jr., Minn.Ct.App., 9/22/2014.  A jury convicted Mr. Crockson, Jr. of two counts of burglary and two of three assault charges.    Mr. Crockson, Jr. and three juveniles had gone over to T.C.’s place, where they also found C.C. and D. H.  In fact, it was C.C. who opened the door and let everyone in.  C.C. had sold Mr. Crockson, Jr. a cell phone, but Mr. Crockson, Jr. accused C.C. of not giving him the phone’s correct PIN number.  The two argued over this and when they reached an impasse on whether this was true or not one of the juvenile’s handed Mr. Crockson, Jr. a revolver, which he placed to C.C.’s head, one assumes to move the discussion to a more satisfactory conclusion.  Mr. Crockson, Jr. then directed the juveniles to assault D.H., which they did.

Near the end of the trial, the trial judge permitted the state to amend the complaint, which had charged that Mr. Crockson, Jr. was subject to an enhanced sentence for the assaults because he was a felon in possession of a firearm.  The amendment changed the basis for the enhanced sentence to second or subsequent offense involving a firearm.  The state’s proof, however, only established that Mr. Crockson, Jr.’s prior assault conviction had involved a “dangerous weapon” rather than proof of a firearm. 

On appeal, Mr. Crockson, Jr. mostly argued about the sentence.  Before that, however, he argued that C.C. was not in “lawful possession” of the apartment; that is, she lacked a legal right to exercise control over the premises, including deciding who gets to come in and who has to leave.  Mr. Crockson, Jr., seemed to want to have his proverbial cake ad eat it too.  If C.C.lacked the authority to throw Mr. Crockson, Jr. and the juveniles out, then the burglary element, “unlawful entry,” which includes overstaying your welcome and getting thrown out, isn’t proven.  Thus, no burglary.  But, if C.C. couldn’t throw everyone out then she could not invite them in, either.  Which suggests that they were what?  Alas, the court avoids this existential conundrum by concluding that because C.C. was living at T.C.’s apartment at the time with T.C.’s permission then she had authority to admit and deny entrance.

The trial court adjudicated Mr. Crockson, Jr.’s guilt on both burglary convictions, even though everyone agreed that the two were part of a single course of behavior.  This was a mistake that the state conceded.  The appellate court lectures the trial court on the proper drill in this situation, which is to accept both guilty verdicts but to adjudicate guilt and impose sentence on only one of the two guilty verdicts. 

Because the state failed to prove that Mr. Crockson, Jr.’s previous conviction involved a firearm – a “dangerous weapon” being too amorphous - the appellate court vacates the assault sentences and remands for resentencing without regard to the mandatory minimum sentence of sixty months.  A victory of sorts – it moots the business about the end of trial amendment of the complaint - but not one that anyone’s going either to celebrate or lose sleep over; the sentence on the burglary was a third longer in duration.

Trial Court Did Not Abuse Its Discretion By Declining To Depart From Presumptive Prison Sentence For a Defendant With Serious Mental Illness and Instead to Require Him To Complete Treatment Program

State v. Abdi, Minn.Ct.App., 10/27/2014.  Mr. Abdi entered an Alford plea to assault in the first degree.  At sentencing, Mr. Abdi asked the court to place him on probation and to require that he successfully complete an “appropriate supervised alternative living program having a mental health treatment component.”  Minn.Stat. 609.1055.  In support of that request, he presented testimony from the director of the treatment program who had this to say about that facility:

(1) the program has never had a resident who was sent there on probation by the criminal justice system; (2) about 50% of the residents have bipolar disorder; (3) the residents are on medication; (4) residents who are not compliant with their medication regimen are discharged; (5) residents stay an average of one year and eight months; (6) whether a resident is ready to leave is determined by the staff and the residents’ psychiatrists; and (7) nothing can be done to require residents who have chosen to leave the program to return to it.

Based on this description, and on testimony from Mr. Abdi’s psychiatrists, the trial court concluded that this treatment program was not sufficiently suitable.  The trial court also concluded that Mr. Abdi posed a serious risk to public safety, something the statute specifically requires the trial court to consider. 

Trial Court Abused Its Discretion By Departing Dispositionally in a CSC Sentencing

State v. Soto, Jr., Minn.S.Ct., 10/22/2014.  Here’s how Justice Lillehaug begins this sentencing opinion:

In sentencing, district courts have a great deal of discretion. Rarely do we hold that it has been abused. But rarely is not never. This is such a rare case.

This is not going to go well for Mr. Soto, Jr.  An odd assortment of four justices – Lillehaug, Dietzen, Stras, and Wright, team up to make sure that Mr. Soto, Jr. does his twelve years for first degree criminal sexual conduct.  The majority concludes that the trial court abused its discretion by placing Mr. Soto, Jr. on probation; it reaches this result mostly by flat out disagreeing with the conclusions of the trial court and by fly specking the trial court’s verbiage.  For instance, the trial court found that Mr. Soto, Jr. was “amenable to probation” instead of finding that he was “particularly amenable to probation.”  Really. 

Justice Lillehaug reels off a list of prior opinions where the court’s language about amenability to probation included the adverb, “particularly”.  Justice Page, joined by Chief Justice Gildea and Justice Anderson, point out, however that  the court has never previously required that the trial court “say the magic words” in order to avoid getting reversed.  This is just more trial court bashing from a court that only has to take cases when it wants to do so, has no ninety day deadline for issuing opinions, and can take forever to fine tune its verbiage. 

To support its determination that Mr. Soto, Jr. was amenable to probation, the trial court pointed to these factors:  the psychosexual evaluation concluded that Mr. Soto, Jr. was an appropriate candidate for its outpatient treatment program; Mr. Soto’s age (37); the lack of very many “serious crimes” on his record; the role that alcohol played in the offense; Mr. Soto’s respectful attitude in court; the offense was an outlier, and he had some family support.  The majority then systematically takes nearly all of those factors apart, not because they are improper factors to consider in determining amenability but because of what the trial court did with them.

Start with the psychosexual evaluation.  The “mere fact” that the report reached a particular treatment recommendation “does not necessarily justify departing.”  Fair enough had the majority stopped there.  But, there’s more.  Even though it’s not the job of the psychosexual evaluator to weigh in on whether to place Mr. Soto, Jr. on probation, that’s apparently exactly what the majority wanted the evaluator to do.   Not having done so leads the majority pretty much to toss the evaluation all together:

There is a large and crucial step missing between saying that Soto is an appropriate candidate for outpatient treatment and concluding that he is “particularly amenable to individualized treatment in a probationary setting.

The majority conceded that in general the other factors that the trial court recited – age, prior record, attitude while in court, and support of friends and family – are all relevant to determining if a defendant is particularly amenable to probation.  Again it just didn’t like the conclusions that the trial court drew from those factors.  Take age.  At  37, the trial court thought that Mr. Soto, Jr. still had an opportunity to correct his behavior.  The majority, however, rejected this observation for two reasons:  “age” means “young, like twenty-something; and if a defendant gets a break for being 37, then where do you draw the break line?  Sixty may be the new forty but thirty-seven won’t get you a departure.

The majority says that prior record, by itself, is not a proper basis for departure, but it’s okay for the trial court to rely on Mr. Soto’s prior record to support its belief that he could correct some of his behaviors.  But, again, the majority just didn’t agree with that observation by the trial court and so, as Justice Page points out, the majority substitutes its conclusion for that of the trial court.

Although the trial court didn’t mention remorse or cooperation with the police, the majority does not say, as the state wanted it to say, that expressing remorse is a prerequisite to finding that a defendant is particularly amenable to probation. Being respectful in court is a legitimate factor but the majority didn’t think it outweighed “other relevant considerations.”  The majority agreed with the trial court that Mr. Soto’s family support and his status as a father are relevant factors in determining amenability.  While these facts cannot, themselves, justify a departure, they can support a finding of amenability.

The majority was annoyed that the trial court had not addressed either Mr. Soto’s culpability or whether public safety would be served by departing.  Again, Justice Page points out that the court had never required a trial court to address these factors; rather, the could has only said that such factors are relevant considerations.  The majority does not hold that trial court must consider culpability and public safety, but clearly the majority is signaling to the trial bench that it would look favorably on plugging both culpability and public safety into the algorithm for determining amenability, and, best of all worlds, adding those factors to hold down the number of departures. 

The dissent’s view of all this is best summed up with this observation:

While another trial court or the members of our court might have arrived at a different conclusion, that alone does not make this situation the “ ‘rare case’ warranting our intervention with the [trial] court’s discretion.” State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). In effect, here, the court improperly “substitute[s] [its] own judgment for that of the trial court.” Spain, 590 N.W.2d at 88.