                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0681


                                 State of Minnesota,
                                      Appellant,

                                         vs.

                               Adam Wallace Jaunich,
                                   Respondent.


                              Filed September 19, 2016
                              Reversed and remanded
                                  Halbrooks, Judge


                           Hennepin County District Court
                              File No. 27-CR-15-1072

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, John Patrick Monnens, Assistant
County Attorney, Minneapolis, Minnesota (for appellant)

Thomas M. Beito, Minneapolis, Minnesota (for respondent)

      Considered and decided by Halbrooks, Presiding Judge; Johnson, Judge; and

Smith, John, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

HALBROOKS, Judge

       In this sentencing appeal, the state challenges the district court’s imposition of a

365-day stayed sentence for respondent’s second-degree burglary conviction, which

constitutes a departure from the presumptive sentence of a stayed 18-month term.

Because we conclude that the district court abused its discretion, we reverse and remand

for imposition of a presumptive sentence.

                                         FACTS

       Respondent Adam Wallace Jaunich was in a romantic relationship with D.M. for

approximately three years until 2013. After D.M. ended their relationship, Jaunich began

harassing and stalking her.       According to D.M., Jaunich broke into her home on

numerous occasions, during which he vandalized and stole her belongings. Jaunich

admits that he had keys to her house and that he continued to stop by D.M.’s home until

she changed the locks. Between 2013 and early 2015, he also sent her numerous e-mails,

texted her, and called her until she blocked his number. D.M. also stated that Jaunich

followed her on more than one occasion by car, sometimes driving at high speeds closely

behind, in front, or next to her car.

       On January 10, 2015, D.M. unexpectedly saw Jaunich during a visit to a mutual

friend’s house. When she returned home, she saw Jaunich pull into her driveway behind

her and then leave. Afraid, she drove away as well. Upon her return, D.M. observed

footprints in the snow and a hat on her property that was similar to the one she saw

Jaunich wearing earlier that day. Inside, she found that her home had been ransacked,


                                            2
there was blood on the kitchen table and floor, one of her bras had been torn in half, and

several items were missing. Shortly after the incident, Jaunich sent D.M. several text

messages, including “Please don’t press charges;” “I will return your stuff and give you

whatever money you need;” “Please don’t press charges, I will give you $1K. is that

enough. To make this go away;” and “It sucks . . . I made such a bad decision.” When

police questioned Jaunich, they noted a fresh 1/4-inch cut on his hand near his wrist.

Inside the trunk of his vehicle, officers found a shotgun and shotgun shells.

       The state charged Jaunich with one count of felony second-degree burglary in

violation of Minn. Stat. § 609.582, subd. 2(a)(1) (2014). The district court ordered a pre-

plea investigation report that recommended the presumptive sentence for felony second-

degree burglary—an 18-month stayed term. The report did not recommend a downward

departure to a gross-misdemeanor sentence because of the nature of the crime and

Jaunich’s own admissions that he had previously engaged in similar behavior. The report

noted that, if anything, the “on-going psychological impact this offense has had on the

victim” should be considered as a potential aggravating factor.

       Jaunich entered a straight guilty plea to felony second-degree burglary. The state

sought the presumptive 18-month sentence recommended in the pre-plea report. The

district court imposed a downward durational departure, justifying its decision on three

grounds:

              [O]ne is the fact that your mental illness and your chemical
              dependency issues had on your behavior. You’re still
              culpable for it, but I think your ability to make smart choices
              or reasonable choices was limited at the time. And I think in



                                             3
              a situation like this, your amenability to probation can factor
              in to a decision to depart to a gross misdemeanor.

The district court imposed a 365-day stayed gross-misdemeanor sentence subject to

multiple conditions and restitution in the amount of $4,353.05. This sentencing appeal

follows.

                                      DECISION

       The state challenges the district court’s decision to impose a downward durational

departure. “The Minnesota Sentencing Guidelines promote uniformity, proportionality,

and predictability in sentencing.” State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015). A

guidelines sentence is presumed to be appropriate, and the district court “must” impose it

unless there are “identifiable, substantial, and compelling circumstances” that support a

different sentence. Minn. Sent. Guidelines 2.D.1 (2014); see also State v. Soto, 855

N.W.2d 303, 308 (Minn. 2014) (“[A] sentencing court can exercise its discretion to

depart from the guidelines only if aggravating or mitigating circumstances are present.”

(quotation omitted)). Substantial and compelling circumstances exist if the defendant’s

conduct is “significantly more or less serious” than the conduct typically involved in the

commission of the crime in question. Hicks, 864 N.W.2d at 157 (quotation omitted).

“We review a district court’s decision to depart from the presumptive guidelines sentence

for an abuse of discretion.” Id. at 156.

       The presumptive punishment for Jaunich’s conviction of second-degree burglary

is a felony sentence. Minn. Stat. § 609.582, subd. 2(a) (2014) (permitting a sentence of

“not more than ten years”). A “felony” is defined as “a crime for which a sentence of



                                            4
imprisonment for more than one year may be imposed.” Minn. Stat. § 609.02, subd. 2

(2014). A “gross misdemeanor” is defined as “any crime which is not a felony or

misdemeanor.” Id., subd. 4 (2014). But the law permits the district court to impose a

gross-misdemeanor sentence on a felony offense and provides that, in such an event, “the

conviction is deemed to be for a . . . gross misdemeanor.” Minn. Stat. § 609.13, subd. 1

(2014).   The imposition of a gross-misdemeanor sentence for a felony conviction

constitutes a downward durational departure. State v. Peter, 825 N.W.2d 126, 130-31

(Minn. App. 2012), review denied (Minn. Feb. 27, 2013); see also State v. Bauerly, 520

N.W.2d 760, 762 (Minn. App. 1994) (ruling that imposition of a 365-day gross-

misdemeanor sentence on a felony theft conviction with a presumptive guidelines

sentence of 366 days constituted a downward durational departure), review denied (Minn.

Oct. 27, 1994).

                                            I.

       The district court justified the downward durational departure for Jaunich’s

sentence on three grounds: (1) his chemical-dependency issues; (2) mental illness; and

(3) amenability to probation. The state argues, and Jaunich concedes, that chemical

dependency and amenability to probation are impermissible justifications for a downward

durational departure. We agree. It is well-settled law that offender-related factors may

support a dispositional departure but may not be used to support a durational departure.

Peter, 825 N.W.2d at 130; see also Minn. Sent. Guidelines 2.D.3.a.(3) (2014) (noting that

the voluntary use of intoxicants (drugs or alcohol) does not qualify as a mitigating factor

for a departure); State v. Behl, 573 N.W.2d 711, 713 (Minn. App. 1998) (stating that a


                                            5
defendant’s amenability to probation does not support a durational departure), review

denied (Minn. Mar. 19, 1998). Only offense-related factors may support a durational

departure. Peter, 825 N.W.2d at 130. Thus, the district court abused its discretion by

imposing a downward durational departure based on chemical dependency and

amenability to probation, as they are impermissible offender-related factors.

       If the reasons provided by the district court are impermissible, this court may

nevertheless affirm a durational departure if the record contains “sufficient evidence . . .

to justify departure.” Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). But “[i]f the

reasons given are improper or inadequate and there is insufficient evidence of record to

justify the departure, the departure will be reversed.” Id. Thus, we must determine

whether mental illness or a separate independent reason in the record supports the

departure.

       The district court expressed concern that Jaunich’s bipolar disorder limited his

ability to make smart or reasonable choices at the time of the offense. The sentencing

guidelines provide that a district court may depart from a presumptive sentence if “[t]he

offender, because of physical or mental impairment, lacked substantial capacity for

judgment when the offense was committed.” Minn. Sent. Guidelines 2.D.3.a(3). The

supreme court has interpreted the sentencing guidelines to require that the mental illness

be extreme. State v. McLaughlin, 725 N.W.2d 703, 716 (Minn. 2007) (“As to mental

illness, we have held that in order to constitute a mitigating factor in sentencing, a

defendant’s impairment must be ‘extreme’ to the point that it deprives the defendant of

control over his actions.”).


                                             6
       Jaunich concedes that the district court failed to illustrate the connection “between

the mental impairment and the commission of the crime” but maintains that the record

nevertheless supports a finding of substantial diminished capacity. But there must be a

nexus between the mental illness and the incident that forms the basis of the conviction

because the sentencing guidelines require a finding that an offender “lacked substantial

capacity for judgment when the offense was committed.”            Minn. Sent. Guidelines

2.D.3.a(3) (emphasis added). Here, no such nexus exists.

       Relying on State v. Wall, 343 N.W.2d 22 (Minn. 1984), and State v. Martinson,

671 N.W.2d 887 (Minn. App. 2003), review denied (Minn. Jan. 20, 2004), Jaunich argues

that the mere diagnosis of bipolar disorder is sufficient to justify the downward departure

because the manifestations of his mental illness were focused exclusively on D.M. But

this fact alone is insufficient to form the nexus necessary to prove that the mental illness

caused him to lack substantial capacity for judgment on the night of the event.

       In Wall, the defendant was charged with first-degree murder after he strangled his

wife to death. 343 N.W.2d at 23. At his plea hearing, Wall indicated that he had no

recollection of the strangling and pleaded guilty to second-degree felony murder because

he felt that a jury would reject a defense of mental illness. Id. at 24. Wall not only had a

nearly 20-year documented history of extreme mental illness that included hospitalization

and civil commitment, but he raised the issue of mental illness at his plea hearing. Id.

Here, Jaunich entered a straight guilty plea to the crime without raising the defense of




                                             7
mental illness or mentioning how it affected him during the incident. The record contains

only a brief description of Jaunich’s self-reported symptoms of his mental illness.1

       In Martinson, the defendant’s longtime extreme mental illness was chronicled in

detail. 671 N.W.2d at 891. Additionally, “[t]he expert psychological evidence [was]

uncontroverted that, at all relevant times, Martinson suffered from the psychosis of

paranoid schizophrenia.”    Id. at 892.   Thus, the district court found that Martinson

suffered from a mental illness “before, during, and after the incident, and that his illness

impaired him socially and psychologically, both before the act and to the present.” Id.

Here, the district court failed to make such findings. Unlike in Martinson, the record

before us does not connect Jaunich’s general diagnosis to the acts that formed the basis

for his conviction; rather, the substantive basis of reported ideations and fixations on

D.M. derive from Jaunich’s self-reporting, not from a documented medical history.

       Because the record does not support a finding that Jaunich lacked substantial

capacity for judgment when he committed the offense, the district court abused its

discretion by imposing a downward durational departure based upon mental illness.

                                            II.

       As noted in Williams, this court may affirm the departure if an independent review

of the record supports one. 361 N.W.2d at 844. For several reasons, we conclude that

the record before us does not support a downward durational departure. First, Jaunich

engaged in a pattern of behavior aimed at harassing D.M. While the case before us


1
  Jaunich did note on his guilty-plea petition that he has been diagnosed as bipolar, but he
indicated both that he had “not been ill recently” and had been taking his medication.

                                             8
involves events on January 10, 2015, the documented pattern of disturbing behavior

toward D.M. illustrates that, particularly in the absence of any asserted mental-illness

defense at the guilty-plea stage, Jaunich was not unaware of his actions. Over the course

of nearly two years, Jaunich repeatedly called, texted, or otherwise harassed D.M. He

broke into her home several times. D.M. reported that Jaunich followed her in his car at

high speeds on more than one occasion. These facts indicate that Jaunich was engaged in

a pattern of behavior over an extended period of time, which undercuts a theory that he

was suffering from the type of extreme mental illness on the night he was arrested that

would justify a downward departure.

       Second, Jaunich was arrested on June 1, 2015 as a result of violating an order for

protection issued against him after his January arrest. On January 14, 2015, the district

court advised Jaunich that “no contact means no contact as in as broad a sense as you can

imagine. So obviously you can’t show up and talk to her, can’t text her, can’t refer to her

or contact her through Facebook or any of the other types of social media that are in

existence today.” Jaunich violated that order when he sent D.M. a text containing a

“shadowed image of a baseball player with a bat and with the message ‘hi.’” There is

nothing in the sentencing transcript to indicate that the district court considered this

violation when it imposed a downward departure.

       Third, the pre-plea investigation report found no substantial and compelling

reasons to depart from the presumptive guidelines sentence. Instead, the report noted that

(1) “there is indication that the current offense is not the first time [Jaunich] has engaged

in criminal behavior”; (2) Jaunich had a shotgun and ammunition in his possession on the


                                             9
night of the offense, a fact that the author urged the district court to take very seriously;

(3) D.M. has expressed ongoing concern for her safety; (4) Jaunich self-reported a history

of stopping mental-health treatment when he feels it no longer necessary; and (5) he has a

lengthy history of substance abuse. The report recommended that the district court

consider the ongoing psychological impact on D.M. as an aggravating factor during

sentencing. At the sentencing hearing, the state joined the recommendations of the pre-

plea report. While a district court is not obligated to adopt a guidelines sentence, it is

“presumed to be appropriate,” and the district court “must” impose it unless there are

“identifiable, substantial, and compelling circumstances” that support a different

sentence. Minn. Sent. Guidelines 2.D.1. We have not found that such circumstances

exist in this case.

           Finally, Jaunich was ordered to pay $4,353.05 in restitution because he took some

items from D.M.’s home and destroyed others. The state noted during sentencing that the

initial request for restitution exceeded $5,000 but was lowered to account for some of

D.M.’s items that were recovered after officers executed a search warrant. “The severity

of the sanction should increase in direct proportion to an increase in offense severity

. . . .”    Minn. Sent. Guidelines 1.A.2 (2016).      A gross-misdemeanor conviction is

appropriate for a theft of property with a value of more than $500 but less than $1,000.

Minn. Stat. § 609.52, subd. 3(4) (2014). But “if the value of the property . . . stolen

exceeds $5,000,” the proportionate sentence is “imprisonment for not more than ten years

or to payment of a fine of not more than $20,000, or both.” Minn. Stat. § 609.52, subd.

3(2) (2014). This is consistent with the felony to which Jaunich pleaded guilty, which


                                              10
carries a recommended sentence of “imprisonment for not more than ten years or . . .

payment of a fine of not more than $20,000, or both.” Minn. Stat. § 609.582, subd. 2(a).

       Although the district court enjoys broad discretion over sentencing matters, “[t]his

court will modify a departure if it has a strong feeling the sentence is inappropriate to the

case.” State v. Law, 620 N.W.2d 562, 564 (Minn. App. 2000), review denied (Minn. Dec.

20, 2000). We are unable to find support in the record for the district court’s decision to

depart from the penalty that is consistent with the value of property taken from D.M.

       The evidence establishes that Jaunich’s offense was not significantly less serious

than the typical second-degree burglary.          Arguably, Jaunich’s actions designed to

terrorize D.M. by breaking into her home, destroying her property, and leaving blood in

the kitchen constitute an offense that is more serious than typical second-degree burglary.

And, as discussed, the record does not contain evidence that Jaunich, due to mental

impairment, lacked substantial capacity for judgment when the offense was committed,

nor does it otherwise support a downward departure. Because we conclude that the

district court abused its discretion by imposing a downward durational departure, we

reverse and remand to the district court for imposition of the presumptive sentence.

       Reversed and remanded.




                                             11
