                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-1682

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                Thomas Wayne Eilertson,
                                      Appellant.

                                Filed September 2, 2014
                                Reversed and remanded
                                   Halbrooks, Judge


                              Ramsey County District Court
                                 File No. 62-CR-12-67

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Reilly, Judge.

                         UNPUBLISHED OPINION

HALBROOKS, Judge

       Appellant challenges the district court’s decision to assign a level-III severity

ranking to his 12 convictions of filing a fraudulent financing statement, an offense that is
unranked in the Minnesota Sentencing Guidelines. Because the district court failed to

make findings in support of its assignment of a severity level, we reverse and remand.

                                          FACTS

       Appellant Thomas Eilertson was charged in January 2012 with 46 counts of filing

a fraudulent financing statement in violation of Minn. Stat. § 609.7475 (2010), and one

count of filing a fraudulent instrument with the registrar of titles in violation of Minn.

Stat. § 508.80 (2010). The complaint states that Eilertson’s Minneapolis home was

foreclosed on and sold at a sheriff’s sale in 2009 and that around the same time, Eilertson

and his wife began filing Uniform Commercial Code liens against individuals related to

the foreclosure. Between 2009 and 2010, they filed more than $114 billion in liens

through the Minnesota Secretary of State’s Office, using the name “Blessings of Liberty”

according to the complaint. The complaint alleges that the Eilertsons filed the liens “as a

means to intimidate or seek revenge against people” and used “Blessings of Liberty” “to

evade criminal or civil liability for their actions.” The liens were filed against private

attorneys and their law firms or companies that were involved with the Eilertsons’

mortgage and foreclosure.      Also targeted were several Hennepin County officials,

including the sheriff, registrar of titles, examiner of titles, county attorney, assistant

county attorneys, district court administrator, and chief judge.

       The state offered Eilertson a plea agreement, under which he would plead guilty to

one count for each alleged victim (12 total), the offenses would be sentenced at severity

level III, and the state would agree to a downward dispositional departure if all liens were

removed before sentencing. Eilertson completed a plea petition and pleaded guilty to the


                                             2
12 counts. The prosecutor examined Eilertson about the facts underlying each count, and

the district court accepted Eilertson’s plea.

       At the sentencing hearing, the state argued that Eilertson had violated the plea

agreement by failing to cooperate with the presentence investigation and by failing to

remove the remaining liens.        The state recommended that the district court deem

Eilertson’s convictions to be level-III offenses because Eilertson agreed to that severity

level and because Eilertson’s offenses were similar in nature to level-III theft offenses.

The district court agreed with the state’s arguments, applied a level-III severity, and

imposed 12 concurrent sentences, the longest being 23 months. Eilertson challenges his

sentence.

                                      DECISION

       Although the Minnesota Sentencing Guidelines assign a severity level to most

offenses, certain offenses are not ranked. State v. Kenard, 606 N.W.2d 440, 442 (Minn.

2000); Minn. Sent. Guidelines II.A (2010).          “Offenses are generally left unranked

because prosecutions for these offenses are rarely initiated, because the offense covers a

wide range of underlying conduct, or because the offense is new and the severity of a

typical offense cannot yet be determined.” Minn. Sent. Guidelines cmt. II.A.04 (2010).

       When sentencing an unranked offense, the district court “shall exercise [its]

discretion by assigning an appropriate severity level for that offense and specify on the

record the reasons a particular level was assigned.” Minn. Sent. Guidelines II.A. Among

the factors the court may consider are:




                                                3
              the gravity of the specific conduct underlying the unranked
              offense; the severity level assigned to any ranked offense
              whose elements are similar to those of the unranked offense;
              the conduct of and severity level assigned to other offenders
              for the same unranked offense; and the severity level assigned
              to other offenders who engaged in similar conduct.

Kenard, 606 N.W.2d at 443; see also Minn. Sent. Guidelines cmt. II.A.04. This list is not

exhaustive, and “[n]o single factor is controlling.” Kenard, 606 N.W.2d at 443; see also

Minn. Sent. Guidelines cmt. II.A.04.

       Eilertson was convicted of 12 counts of filing fraudulent financing statements in

violation of Minn. Stat. § 609.7475, subds. 2(2), 3(b)(1). Filing a fraudulent financing

statement is an unranked offense.1      The district court recognized this, and when

announcing Eilertson’s sentence, read the guidelines’ procedure for assigning a severity

level and cited Kenard. It stated:

                     The Court did review the statutes previously cited by
              [the prosecutor]. I also reviewed the plea petition that had
              been agreed to by Mr. Eilertson and note that Mr. Eilertson
              had agreed that these crimes would be sentenced at a severity
              level three. I do find that severity level three is the
              appropriate severity level for these offenses, and so I have
              assigned them a severity level three in my sentencing here
              today.

We review the district court’s severity level assignment for abuse of discretion. State v.

Bertsch, 707 N.W.2d 660, 666 (Minn. 2006).



1
 Section 609.7475 went into effect in 2006. 2006 Minn. Laws ch. 260, art. 7, § 13, at 95.
No cases involving this section were sentenced through 2012. Minn. Sent. Guidelines
Comm’n, Frequency and Severity of Unranked Offenses: Sentenced 1981-2012 5 (Nov.
2013),    available    at     http://mn.gov/sentencing-guidelines/images/2012Unranked
Offenses.pdf.

                                            4
       The state argued at sentencing that filing a fraudulent financing statement is

similar to three offenses with level-III severity: insurance fraud, defeating security on

realty, and defeating security on personalty. It is unclear from the record whether the

district court actually agreed with this argument because the district court said only that it

had “reviewed” the statutes presented by the state. The district court did not address how

the elements of the three offenses are similar to Eilertson’s.

       But even if the district court did agree with the state’s argument, we are not

convinced that the three offenses are sufficiently similar to justify a level-III severity

ranking for Eilertson’s offenses.     Insurance fraud, defeating security on realty, and

defeating security on personalty require significantly different mens rea than filing a

fraudulent financing statement.     Insurance fraud requires “intent to defraud for the

purpose of depriving another of property or for pecuniary gain.” Minn. Stat. § 609.611,

subd. 1 (2010). Defeating security on realty requires “intent to impair the value of the

property.” Minn. Stat. § 609.615 (2010). And defeating security on personalty requires

“intent to defraud.” Minn. Stat. § 609.62, subd. 2 (2010). The felony offense of filing a

fraudulent financing statement, on the other hand, requires “intent to influence or

otherwise tamper with a juror or a judicial proceeding or with intent to retaliate against”

an official related to a judicial proceeding. Minn. Stat. § 609.7475, subds. 2(2), 3(b)(1).

The penalties for insurance fraud and defeating security on realty are based on the cost of

the damage caused by the crimes, Minn. Stat. §§ 609.611, subd. 3, .615 (2010), and the

severity level of all three offenses relied on by the state depends on whether the victim’s

losses were more than $5,000. See Minn. Sent. Guidelines IV (2010). The penalty for


                                              5
filing a fraudulent financing statement is based solely on intent, with no dollar amount of

loss required. Minn. Stat. § 609.7475, subd. 3(b)(1).

       Filing a fraudulent financing statement is more similar to crimes such as stalking

and harassment. The Minnesota statutes characterize stalking, harassment, and filing a

fraudulent financing statement as “Public Misconduct or Nuisance” crimes. See Minn.

Stat. §§ 609.687-.7495 (2010).      Insurance fraud, defeating security on realty, and

defeating security on personalty are listed as “Damage or Trespass to Property” offenses.

See Minn. Stat. §§ 609.556-.621 (2010). Although these headnotes “are mere catchwords

to indicate the contents of the section or subdivision” and “not part of the statute,” Minn.

Stat. § 645.49 (2010), they can aid courts’ analysis. See, e.g., State v. Hodges, 386

N.W.2d 709, 711 (Minn. 1986) (considering the offense’s classification under “Damage

or Trespass to Property” heading); Thompson v. Comm’r of Pub. Safety, 567 N.W.2d 280,

283 (Minn. App. 1997) (discussing the development of the headings of a particular

statutory subdivision to decipher legislative intent), review denied (Minn. Sept. 25, 1997).

Further, the mens rea requirement for felony filing a fraudulent financing statement is the

same as that for felony aggravated stalking, Minn. Stat. § 609.749, subd. 3(a)(4), and

felony violation of a harassment restraining order, Minn. Stat. § 609.748, subd. 6(d)(5).

And, as with filing a fraudulent financing statement, that intent is what determines the

severity of the crimes and the penalties. See Minn. Stat. §§ 609.748, subd. 6(d)(5), .749,

subd. 3(a)(4).

       In addition to reviewing the offenses raised by the state, the district court noted

that Eilertson “had agreed that [his] crimes would be sentenced at a severity level three.”


                                             6
We have not reviewed a case in which the parties, as part of a plea agreement, stipulated

to the severity level of an unranked offense. But in State v. Misquadace, the Minnesota

Supreme Court considered “whether . . . a plea agreement, without more, can be the basis

for a departure from the sentencing guidelines.” 644 N.W.2d 65, 70 (Minn. 2002). The

supreme court held that it cannot and explained as follows:

                      We believe that the overriding principle in all
              sentencing is rationality, predictability, and consistency, and
              plea agreements can exist within the framework of the
              sentencing guidelines. Therefore, in order to abide by the
              guidelines’ overriding principles, we conclude that negotiated
              plea agreements that include a sentencing departure are
              justified under the guidelines in cases where substantial and
              compelling circumstances exist. A plea agreement standing
              alone, however, does not create such circumstances in its own
              right. Rather, when reviewing a plea agreement that includes
              a sentencing departure, the court must determine whether the
              offense of conviction reflects any aggravating or mitigating
              circumstances that warrant a departure.

Id. at 71. The supreme court also stated that “[i]t is for the legislature . . . to make the

policy decision that sentencing pursuant to plea agreements alone does not seriously

threaten the goal of rational and consistent sentencing.” Id. at 71-72. The same analysis

applies to assigning severity levels to unranked offenses.

       The district court is required to specify on the record its reasons for selecting a

particular severity level, much like it must identify “substantial[] and compelling

circumstances” before departing from the sentencing guidelines. Minn. Sent. Guidelines

II.A, II.D. The parties can agree to a severity level and stipulate to facts that they believe

support that level, but their agreement cannot be the reason for a particular sentence. See

State v. Rourke, 773 N.W.2d 913, 919-21 (Minn. 2009) (distinguishing between facts that


                                              7
must be proven beyond a reasonable doubt by the state and reasons that explain why the

district court found substantial and compelling circumstances); see also Spann v. State,

704 N.W.2d 486, 494 (Minn. 2005) (concluding that “allowing a defendant to waive [via

plea agreement] his right to appeal after trial conviction and sentencing is inconsistent

with the court’s role as an objective supervisor whose purpose includes maintaining the

integrity of the judicial system”). To allow otherwise would circumvent the district

court’s role in deciding appropriate sentences and hamper the guidelines’ goals.

       By relying on Eilertson’s plea agreement with the state to decide the severity level,

the district court substituted the parties’ discretion for its own. The plea agreement did

not present any justification for a level-III ranking and therefore could not support the

district court’s decision. Because of this and our previous conclusion that the statutes

presented by the state are distinguishable from filing a fraudulent financing statement, the

record does not contain any rationale supporting Eilertson’s sentence. We therefore

reverse and remand for resentencing so that the district court may make the necessary

findings to assign a severity level to Eilertson’s unranked offenses.

       Reversed and remanded.




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