                        This opinion will be unpublished and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
                                   A14-1983

                                 State of Minnesota,
                                      Appellant,

                                         vs.

                               Shannon Marie Kiesner,
                                    Respondent.

                                Filed May 18, 2015
                              Reversed and remanded
                                 Peterson, Judge

                            Ramsey County District Court
                              File No. 62-CR-14-2413

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

John J. Choi, Ramsey County Attorney, Laura S. Rosenthal, Assistant County Attorney,
St. Paul, Minnesota (for appellant)

Mark D. Nyvold, Fridley, Minnesota (for respondent)

      Considered and decided by Worke, Presiding Judge; Peterson, Judge; and

Connolly, Judge.

                       UNPUBLISHED OPINION

PETERSON, Judge

      In this sentencing appeal, the state argues that the district court abused its

discretion when it imposed a downward durational departure from the presumptive

sentence without making offense-related findings that respondent’s conduct was
significantly less serious than the typical first-degree criminal-damage-to-property

offense. We reverse and remand.

                                        FACTS

      E.G. was at home with her three young children when she heard a noise and went

to investigate. A woman whom E.G. had never seen before, later identified as respondent

Shannon Marie Kiesner, was standing outside E.G.’s back door. E.G. told respondent to

leave, but respondent, who was screaming and appeared to be very angry, began breaking

a window to enter the home. When respondent began breaking the window, E.G. hid in a

bathroom with her youngest child and called 911.

      Respondent entered the home and went into the basement where E.G.’s nine-year-

old daughter was sleeping. Respondent grabbed the girl around the neck and screamed at

her. Respondent also grabbed a lamp and hit the wall and smashed things with it.

      Police arrived and arrested respondent. Respondent stated that she had quarreled

with her boyfriend and admitted that she had been drinking. She stated that she had not

intended to harm the family and that she had very little recollection of the incident.

During the incident, respondent broke a door and window, causing about $2,800 in

damage.

      Respondent was charged with one count of first-degree criminal damage to

property in violation of Minn. Stat. § 609.595, subd. 1(3) (2012) (intentionally damaging

another person’s property if damage reduces property’s value by more than $1,000 as

measured by cost of repair and replacement). Appellant pleaded guilty to the charge and

moved for a downward sentencing departure. At the sentencing hearing, defense counsel


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stated that the offense occurred when respondent had a relapse following treatment for

alcohol abuse, that respondent had not consumed any alcohol since the offense, that she

was currently attending alcoholics anonymous two or three times a week as well as

participating in other support groups, and that she had signed up for a relapse-prevention

program at Hazelden.      Defense counsel requested a gross-misdemeanor disposition,

noting that during plea negotiations, he and the prosecutor had discussed treating the

offense as a gross misdemeanor if respondent paid restitution up front, which she did.

The state requested a stay of imposition of sentence with a five-year probationary period.

       The presumptive sentence for respondent’s offense was a stayed term of one year

and one day in prison. Minn. Sent. Guidelines IV-V (2012). The district court sentenced

respondent to a stayed term of 364 days in jail and placed her on probation for two years.

The court stated:

              [T]he record should reflect, first of all, that you [pleaded]
              guilty at the first opportunity. You [pleaded] guilty early, you
              saved the State and the victims the difficulty of going through
              a trial. You have exhibited remorse. And this is the kind of
              case that would typically be handled in a diversionary
              disposition. Typically, a Criminal Damage to Property
              charge where there is no prior felony level activity, typically
              these matters would be referred to diversion. I am not sure
              why in this case that wasn’t considered. But if there was
              diversion granted you would have potentially ended up with
              no conviction on your record.            The plea agreement
              recommendation is for a stay of imposition which ultimately
              would give you only a misdemeanor on your record, and with
              the gross misdemeanor disposition that’s going to be on your
              record for the rest of your life.

                     And, so, the court believes that under the
              circumstances of this case, particularly since you did have
              potentially a defense of intoxication in this matter, but you


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             have still taken responsibility for your actions, the court is
             granting a departure from the guidelines.[1]

This appeal followed.2

                                   DECISION

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

an abuse of discretion. State v. Peter, 825 N.W.2d 126, 129 (Minn. App. 2012), review

denied (Minn. Feb. 27, 2013). “Departures from the presumptive sentence are justified

only when substantial and compelling circumstances are present in the record.” State v.

Jackson, 749 N.W.2d 353, 360 (Minn. 2008) (emphasis in original). Offender-related

factors are relevant to a dispositional departure, but a durational departure must be

supported by offense-related factors. State v. Chaklos, 528 N.W.2d 225, 228 (Minn.

1995); Peter, 825 N.W.2d at 130. “[A] downward durational departure is justified if the

defendant’s conduct is significantly less serious than that typically involved in the

commission of the offense.” State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985). “If

the district court’s reasons for departure are improper or inadequate and there is

insufficient evidence in the record to justify the departure, the departure will be

reversed.” Jackson, 749 N.W.2d at 357 (quotation omitted).

      The presumptive sentence for respondent’s offense is a felony sentence, but the

sentence imposed by the district court is a gross-misdemeanor sentence. See Minn. Stat.

§ 609.02, subds. 2-4 (2012) (defining “felony” as “a crime for which a sentence of


1
 Respondent’s sentence was later amended but only as to a probation condition.
2
  Respondent moved to dismiss the appeal based on the state’s failure to follow the
proper procedure for ordering a transcript; this court denied the motion.

                                           4
imprisonment for more than one year may be imposed” and gross misdemeanor as a

crime with a sentence between 91 and 365 days); see also Minn. Stat. §§ 609.135, subd.

2(c) (stating that a probationary stay for a gross misdemeanor “shall be for not more than

two years”), .13, subd. 1 (2012) (stating that if a defendant is convicted of a felony but a

gross misdemeanor sentence is imposed, “the conviction is deemed to be for a . . . gross

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

is a downward durational departure. State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App.

1994) (stating that even though gross-misdemeanor sentence imposed was only one day

less than presumptive felony sentence, imposed sentence was downward durational

departure), review denied (Minn. Oct. 27, 1994).

       The district court cited respondent’s remorse as a factor supporting departure. “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). “However, 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.” State v.

McGee, 347 N.W.2d 802, 806 n.1 (Minn. 1984). Although McGee refers to a lack of

remorse, this court has upheld the district court’s consideration of a defendant’s remorse

as relating back to the seriousness of the offense and helping to support a downward

durational departure. Bauerly, 520 N.W.2d. at 763. But respondent does not explain how

her remorse relates back to the commission of her offense, and the record does not show

that respondent’s remorse made her conduct less serious than that typically involved in


                                             5
the commission of first-degree criminal damage to property. Consequently, the district

court erred in relying on respondent’s remorse as a factor supporting a downward

durational departure.

       The district court also listed early resolution of the case, which saved the state and

the victims from the difficulty of trial. Because early resolution of a case occurs after

commission of the offense, it is not an offense-related factor.

       The district court also cited the fact that respondent took responsibility for her

actions despite having a potential intoxication defense.          Because respondent took

responsibility for her actions after commission of the offense, it is not an offense-related

factor. And the sentencing guidelines specifically exclude voluntary intoxication as a

mitigating factor. Minn. Sent. Guidelines 2.D.3(a)(3) (2012); see also State v. Cizl, 304

N.W.2d 632, 634 (Minn. 1981) (stating that a defendant's voluntary intoxication at the

time of the offense may not be relied upon as a mitigating factor to justify a downward

departure); State v. Dick, 638 N.W.2d 486, 493 (Minn. App. 2002) (rejecting defendant’s

argument that his extreme intoxication at the time of the offenses mitigated their

seriousness), review denied (Minn. Apr. 16, 2002).

       Finally, the district court noted that respondent’s offense was the type that would

typically be handled by diversion and that the state’s recommendation for a stay of

imposition would have resulted in respondent having only a misdemeanor on her record

if she successfully completed probation, while the sentence imposed will result in

respondent have a gross misdemeanor on her record. In Cizl, the district court imposed a

gross-misdemeanor sentence for a felony offense and stated as a reason supporting


                                             6
departure the court’s belief that it was not in the public interest or in the defendant’s

interest to burden the defendant with a felony record. 304 N.W.3d at 634. The supreme

court concluded that this was not a proper mitigating factor. Id. The court explained:

                     The purpose of the [district court’s] departure, which
              was to avoid burdening the defendant with a felony criminal
              record, could be substantially accomplished by staying the
              imposition of sentence rather than by staying execution of
              sentence. If the court were to use this approach and if
              defendant successfully completed probation, then (a) under
              Minn. Stat. § 609.13, subd. 1 (1980) the conviction, although
              for a felony, would be deemed to be for a misdemeanor, and
              (b) under Section II.B.1.d and Comment II.B.105 of the
              Guidelines the offense would be counted as a felony for
              purpose of computing defendant’s criminal history score only
              for 5 years from the date of discharge or expiration of stay,
              after which it would be deemed a misdemeanor.

Id. (footnote omitted).

       Because the reasons stated by the district court for the departure were improper

and the record evidence does not justify a downward durational departure, we reverse

respondent’s sentence and remand for resentencing.

       Reversed and remanded.




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