                          This opinion will be unpublished and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
                                     A15-0529

                                   State of Minnesota,
                                        Appellant,

                                           vs.

                                    Alonzo Crowder,
                                      Respondent

                                Filed August 31, 2015
                   Affirmed in part, reversed in part, and remanded
                                    Chutich, Judge

                              Dakota County District Court
                              File No. 19HA-CR-14-2853

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

James C. Backstrom, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant State
Public Defender, St. Paul, Minnesota (for respondent)

         Considered and decided by Larkin, Presiding Judge; Chutich, Judge; and Smith,

Judge.

                         UNPUBLISHED OPINION

CHUTICH, Judge

         The state appeals the district court’s downward durational departure for

respondent Alonzo Crowder, who pleaded guilty to felony-level identify theft. In a
related appeal, Crowder argues that the identity theft statute, which imposes a statutory

minimum restitution payment of $1,000 for every direct victim, is unconstitutional.

Because the district court’s stated reasons for a durational departure are improper and the

record is insufficient to justify one, the district court abused its discretion in granting the

downward durational departure.          Because Crowder did not properly raise his

constitutional argument in district court, we do not reach its merits. Accordingly, we

affirm the restitution ordered but reverse the durational departure and remand for

resentencing.

                                           FACTS

       Respondent Alonzo Crowder worked at an assisted-living residence as an

overnight aid, security aid, and janitor. Crowder’s position gave him access to residents’

personal information, and he obtained a resident’s credit card and used it to buy jewelry.

While police were investigating the unauthorized jewelry purchase, they searched

Crowder’s apartment and discovered personal information for 15 people, all of whom

were current or prior residents of the assisted-living residence where Crowder worked.

Crowder admitted using the personal information of at least five residents to open an

account at Kohl’s and to purchase items he later sold to pay bills and to buy drugs.

       The state charged Crowder with one count of felony identity theft involving eight

or more victims and one count of felony attempted financial transaction card fraud. See

Minn. Stat. §§ 609.527, subds. 2, 3(5) (offense committed against more than eight

victims), 609.821, subd. 2(1) (using card without consent) (2014). Crowder pleaded

guilty to the charge of felony identity theft, and the other charge was dismissed.


                                              2
       Crowder’s offense was a severity level eight under the sentencing guidelines.

Minn. Sent. Guidelines 5.A (2014).            With his criminal history score of zero, the

presumptive range for his offense was 41 to 57 months, and the presumptive sentence

was 48 months. Minn. Sent. Guidelines 4.A (2014). The presentence investigation report

recommended that Crowder receive a 48-month sentence, pay restitution, and have no

contact with the victims or their families.

       Crowder requested a dispositional departure.             The district court granted a

durational departure, sentencing Crowder to a gross misdemeanor with 365 days in jail,

credit for 132 days served, and the remaining 233 days stayed. The district court also

required him to undergo a mental-health evaluation and to pay each victim $1,000 in

restitution. See Minn. Stat. § 609.527, subd. 4(b) (2014) (stating that the district court

shall order a person convicted of identity theft to pay restitution of not less than $1,000 to

each direct victim of the offense).

       At the sentencing hearing, the district court stated the following reasons to justify

the departure: (1) Crowder would not be able to pay restitution if he were incarcerated,

(2) he had suffered a stroke and head injury, (3) he expressed remorse, and (4) he

accepted responsibility. The district court also noted that Crowder would not be going to

prison had the number of victims not been aggregated into one count or had he been

charged with a general theft crime instead of identity theft.

       On the written departure report, the district court checked the following boxes for

offender-related mitigating factors: amenable to probation, amenable to treatment,

impose restitution/ensure financial penalties paid, and shows remorse/accepts


                                                3
responsibility.   The district court did not check any boxes relating to a durational

departure.

       The state appealed Crowder’s downward durational departure. Crowder then filed

a notice of related appeal, challenging the constitutionality of his court-ordered restitution

payments. We questioned whether we had jurisdiction to hear the related appeal, but,

after briefing by the parties, we construed Crowder’s related appeal as a notice of appeal

from the final judgment and accepted jurisdiction.

                                      DECISION

I.     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. See Hicks, 864 N.W.2d at 157.

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

sentence for an abuse of discretion. Id. at 156. If the district court’s reasons for the

departure are legally permissible and supported by the record, the departure will be


                                              4
affirmed. Id. If the district court’s reasons are improper or inadequate, the departure will

be reversed. Id.

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

departure.   “Requests for durational departures require the district court to consider

whether the conduct involved in the offense of conviction was significantly more or less

serious than the typical conduct for that crime.” State v. Peter, 825 N.W.2d 126, 130

(Minn. App. 2012), review denied (Minn. Feb. 27, 2013). “[O]ffender-related factors do

not support durational departures.” Id.

       In Williams v. State, the supreme court prospectively established the following

framework for reviewing sentencing departures:

              1. If no reasons for departure are stated on the record at the
                 time of sentencing, no departure will be allowed.
              2. If reasons supporting the departure are stated, this court
                 will examine the record to determine if the reasons given
                 justify the departure.
              3. If the reasons given justify the departure, the departure will
                 be allowed.
              4. If the reasons given are improper or inadequate, but there is
                 sufficient evidence in the record to justify departure, the
                 departure will be affirmed.
              5. If the reasons given are improper or inadequate and there is
                 insufficient evidence of record to justify the departure, the
                 departure will be reversed.

361 N.W.2d 840, 844 (Minn. 1985).1


1
  The supreme court has questioned the continuing validity of the Williams framework for
upward durational departures. See State v. Jones, 745 N.W.2d 845, 851 (Minn. 2008)
(stating that post-Blakely, absent a waiver by a defendant, the fact-finder must determine
facts that would justify an upward departure). But this examination technique still
applies to downward durational departures. See State v. Nieznanski, No. A14-2055, 2015
WL 2185319, at *2 n.3 (Minn. App. May 11, 2015) (“[T]here is nothing to suggest that

                                             5
       During the sentencing hearing, the district court stated several reasons to justify

the departure. The state argues that these reasons cannot justify a durational departure,

and we agree.

       First, the district court noted that Crowder would not be able to pay restitution if

he were incarcerated. The inability to pay restitution while incarcerated, however, is not

a proper factor for a durational departure. See State v. Vahabi, 529 N.W.2d 359, 361

(Minn. App. 1995) (“The trial court’s stated reason for [the durational] departure, to

ensure payment of restitution, is inadequate.”); see also Minn. Sent. Guidelines cmt.

2.D.201 (2014) (“[S]entencing should be neutral with respect to an offender’s . . . income

level.”).

       The district court also found that Crowder showed remorse. “As a general rule, a

defendant’s remorse bears only on a decision whether or not to depart dispositionally, not

on a decision to depart durationally . . . .” State v. Back, 341 N.W.2d 273, 275 (Minn.

1983); see also State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). In State v. Bauerly, we

affirmed the district court’s use of remorse to help support a downward durational

departure based on the seriousness of the offense. 520 N.W.2d 760, 762-63 (Minn. App.

1994), review denied (Minn. Oct. 27, 1994). But unlike Bauerly, the seriousness of the

offense does not justify a downward durational departure here. Furthermore, remorse,




the framework adopted in [Williams and Geller] does not continue to apply when we
review downward durational departures.”).

                                            6
standing alone, is an insufficient basis to justify a downward durational departure. State

v. Solberg, ___ N.W. 2d ___, ___ (Minn. App. Aug. 25, 2015).

      The district court also acknowledged that Crowder had suffered a stroke and head

injury. Mental impairment can support a durational departure if it is extreme. See Minn.

Sent. Guidelines 2.D.3.a(3) (2014) (“The offender, because of physical or mental

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

While the district court recognized that Crowder suffered a stroke and traumatic head

injury, it made no findings as to whether these past medical conditions caused Crowder to

lack “substantial capacity for judgment” when Crowder took information from fifteen

elderly people and used some of the information for his personal gain.

      Moreover, compared to the rare cases in which a downward durational departure

has been justified on the basis of mental impairment, the record does not show that

Crowder’s impairment rises to the same “extreme” level of severity. See, e.g., State v.

McLaughlin, 725 N.W.2d 703, 716 (Minn. 2007) (“[T]o 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.”); State v. Martinson, 671 N.W.2d 887, 891-92

(Minn. App. 2003) (affirming a downward durational departure for a defendant who

suffered from paranoid schizophrenia and concluding that his mental impairment was

sufficiently extreme to be a substantial and compelling circumstance that justified the

departure), review denied (Minn. Jan. 20, 2004).

      Finally, the district court also noted that Crowder was amenable to probation and

to treatment. But amenability to probation and treatment are factors that support a


                                            7
dispositional departure. State v. Herrmann, 479 N.W.2d 724, 728 (Minn. App. 1992)

(“The defendant’s amenability to probation or treatment is a relevant factor in

determining whether a dispositional departure is warranted, but does not appear to bear

on the issue of the appropriate duration of a sanction.”), review denied (Minn. Mar. 19,

1992).

         Crowder counters that the downward durational departure was justified because—

although not a reason cited by the district court—his crime was less onerous than the

typical identity theft case contemplated under Minnesota Statutes section 609.527,

subdivision 3(5). This section applies if (1) the offense involves eight or more direct

victims; (2) the direct and indirect victims suffered a combined loss of more than

$35,000; or (3) the offense is related to the possession or distribution of pornographic

work involving minors. Minn. Stat. § 609.527, subd. 3(5). Crowder argues that his crime

is less severe under this statute because he stole a relatively small amount compared to

$35,000 and because his crime did not involve child pornography.

         We recognize that Crowder’s offense involved nowhere near $35,000 in damages

or child pornography. But within this section of the identity theft statute, the legislature

created a separate category for thefts involving eight or more identities. See id. When

the “[l]egislature’s intent is clear from the statute’s plain and unambiguous language,” as

it is here, “we interpret the statute according to its plain meaning.” Meeker v. IDS Prop.

Cas. Ins. Co., 862 N.W.2d 43, 46 (Minn. 2015).

         Furthermore, the record here shows that Crowder possessed the personal

identification information of at least fifteen people. The victim impact statements show


                                             8
that these victims were particularly vulnerable because of advanced age, illness and

reduced capacities, and that Crowder’s actions caused many of them to feel frightened

and betrayed. Given the number and nature of his vulnerable victims, Crowder’s offense

cannot be viewed as somehow less serious than the typical identity theft crime.

Accordingly, this record does not show that a durational departure was justified because

Crowder’s crime was less onerous than the typical identity theft case.

       In sum, because the offender-related reasons stated by the district court were

improper to support a downward durational departure and because sufficient evidence in

the record does not show that this offense was less onerous than the typical identity theft

case, we reverse and remand for resentencing. Although the state opposed a dispositional

departure at the sentencing hearing, we note that, upon appeal, it did not contend that a

dispositional departure would be inappropriate under the circumstances present here.

II.    Constitutionality of Mandatory Minimum Restitution Statute

       We next turn to Crowder’s appeal regarding the constitutionality of the mandatory

minimum restitution statute.     See Minn. Stat. § 609.527, subd. 4(b).      To challenge

restitution, an offender must request a hearing “within 30 days of receiving written

notification of the amount of restitution requested, or within 30 days of sentencing,

whichever is later.” Minn. Stat. § 611A.045, subd. 3(b) (2014). The hearing request

must also be “in writing and filed with the court administrator.” Id. A defendant cannot

challenge restitution after the 30-day period has passed. Id.

       Crowder argues that the mandatory minimum restitution statute is unconstitutional

because it forces a person convicted of identity theft to pay a mandatory minimum


                                             9
restitution of $1,000 to every direct victim of the offense without regard to the victim’s

actual loss or the offender’s ability to pay. The state contends that Crowder waived his

right to challenge the restitution payments because he did not request a hearing within the

requisite 30-day deadline. Caselaw shows, however, that this time bar does not apply to

challenges to the district court’s legal authority to order restitution.

       Generally, a defendant cannot challenge the amount of restitution ordered if the

defendant has not submitted a written request for a hearing within 30 days of receiving

notification of the restitution requested or within 30 days of sentencing, whichever is

later. See id. But in State v. Gaiovnik, the supreme court concluded that the 30-day

deadline and written requirement in section 611A.045, subdivision 3(b) will not bar an

appellant’s claim when the appellant challenges the district court’s legal authority to

award restitution. 794 N.W.2d 643, 647 (Minn. 2011). Because Crowder challenged the

constitutionality of the mandatory minimum restitution statute and because this challenge

was to the court’s legal authority as Gaiovnik allows, his claim is preserved.

       Even though section 611A.045 does not bar Crowder’s constitutional claim, we

decline to consider the claim here because it was not properly raised in the district court.

At the very end of the sentencing hearing, the following exchange took place between the

district court and Crowder’s attorney:

              [Defense Attorney]: And, Judge, it’s our request that you
              order a restitution study so that we may respond to both the
              dollar determination and to the appropriateness or
              constitutionality of the arbitrary thousand dollar limit.
              THE COURT: 611A, you’ll be given a notice, and I think you
              can tee it up right then. It’s not an award until it comes back



                                               10
              and this is the result and you’re given notice in accordance
              with that particular Minnesota law.

Crowder’s statement to the district court, at most, put the district court on notice of his

intent to argue some aspect of the constitutionality of the restitution payments. But

Crowder did not actually raise his specific constitutional challenge during any proceeding

at the district court, and, as Crowder’s counsel admitted on appeal, the claim was not

litigated below or decided by the district court.

       “We ordinarily do not consider issues raised for the first time on appeal, even

when those issues are . . . challenges to the constitutionality of a statute.”     State v.

Williams, 794 N.W.2d 867, 874 (Minn. 2011). We may, however, address even newly

raised constitutional issues if justice so requires. See Minn. R. Civ. App. P. 103.04; see

also Minn. R. Crim. P. 28.02, subd. 11 (“On appeal from a judgment, the court may

review any order or ruling of the district court or any other matter, as the interests of

justice may require.”).       We have applied this interests-of-justice exception to

constitutional issues “when the parties have had adequate time to brief such issues, and

when such issues are implied in the lower court.” Tischendorf v. Tischendorf, 321

N.W.2d 405, 410 (Minn. 1982). Of course, issues of constitutionality are not to be taken

lightly, and the challenger bears a “very heavy burden of demonstrating beyond a

reasonable doubt that the statute is unconstitutional.” State v. Merrill, 450 N.W.2d 318,

321 (Minn. 1990).

       Applying these principles here, we decline to address Crowder’s constitutional

claim because the briefing is insufficient to address the key constitutional issue raised by



                                             11
the mandatory minimum restitution statute: substantive due process. Crowder’s brief

focuses almost exclusively on procedural due process, arguing that section 609.527,

subdivision 4(b), is unconstitutional and punitive because it forces a person convicted of

identity theft to pay mandatory minimum restitution of $1,000 to every direct victim. But

Crowder does not complain that this statute deprives him of notice or opportunity to be

heard; instead, he contends that the statute itself is unfair because it levies an automatic

fine after notice and a hearing. Thus, the constitutional issue that Crowder seeks to raise

is a substantive due process issue. See State v. Wiseman, 816 N.W.2d 689, 692 (Minn.

App. 2012) (“Procedural due process requires notice and an opportunity to be heard”

whereas “substantive due process protects individuals from certain arbitrary, wrongful

government actions regardless of the fairness of the procedures used to implement them.”

(quotations omitted)), review denied (Minn. Sept. 25, 2012), and abrogated on other

grounds by Missouri v. McNeely, 133 S. Ct. 1552 (2013).

       While Crowder’s brief addresses substantive due process in passing, it is an

incomplete analysis at best.      Moreover, we have concerns about the fairness of

considering the issue when the state’s supplemental reply brief does not address

substantive due process at all. See State Dep’t of Labor & Indus. v. Wintz Parcel Drivers,

Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to reach a constitutional issue in the

absence of adequate briefing).       Because the constitutionality of section 609.527,

subdivision 4(b), was not raised or considered in district court and because the briefing is




                                             12
inadequate to decide this issue, we will not apply the interests-of-justice exception to

reach the merits of Crowder’s constitutional claim.

      Affirmed in part, reversed in part, and remanded.




                                           13
