                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-0242

                                   State of Minnesota,
                                        Appellant,

                                           vs.

                                  Jacob Miles Solberg,
                                      Respondent.

                                Filed August 24, 2015
                               Reversed and remanded
                                    Hudson, Judge

                               Polk County District Court
                                File No. 60-CR-13-1128

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

Gregory Widseth, Polk County Attorney, Scott Buhler, Assistant County Attorney,
Crookston, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for respondent)

      Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Willis,

Judge.

                                    SYLLABUS

      Remorse that does not relate to the seriousness of the crime, standing alone, is an

insufficient basis to support a downward durational departure.




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

HUDSON, Judge

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

discretion when it granted respondent a downward durational departure based on factors

typically used to justify a dispositional departure. Because the district court improperly

based the durational departure on offender-related factors, instead of the required offense-

related factors, we reverse and remand.

                                          FACTS

       In June 2013, B.W. went to a small-town street dance. In the early morning hours,

B.W. connected with respondent Jacob Miles Solberg, a coworker, who invited her to his

house, ostensibly to spend time with him and some of his friends. Respondent appeared

intoxicated to B.W. at the time of the invitation. He drove B.W. to his rural home where

no others were present. Respondent cooked food and later began rubbing B.W.’s back

and legs while they were seated on the living-room couch. She told him to stop. B.W.

testified that respondent “beg[ged]” B.W. to have sex with him, and she refused.

Respondent subsequently pushed B.W. onto the couch and held her down, despite her

telling “him to stop and get off [her]” multiple times. Respondent penetrated B.W.

vaginally and anally. He then took her back to her vehicle. B.W. reported the rape to law

enforcement and underwent a sexual-assault examination.

       B.W. confronted respondent the evening after the assault by text message.

Respondent asked B.W. via text what she was talking about and claimed he did not

remember anything from the previous night because of his alcohol consumption.


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       Respondent was charged with third-degree criminal sexual conduct. During the

jury trial, after the testimony of B.W., two Polk County deputy sheriffs, an emergency

department nurse, and an investigator at the sheriff’s office, respondent entered a

Norgaard guilty plea.1 In exchange, the state agreed to recommend limiting the sentence

to the bottom of the presumptive guidelines sentencing range, with respondent being free

to argue for a departure and any other conditions.      Respondent admitted to having

intercourse with B.W., but stated that due to intoxication he could not recall the exact

details of the encounter.

       At sentencing, respondent moved for a downward durational and/or dispositional

departure, arguing that he was particularly amenable to probation, he was remorseful, and

his offense was less serious than the typical third-degree criminal-sexual-conduct case.

The district court granted respondent a downward durational departure because of his

age, shown remorse, cooperation with law enforcement, and limited criminal history.

The low end of the presumptive sentencing guidelines range was 53 months executed

with a ten-year conditional-release period; the district court sentenced respondent to an

executed 30-month sentence with a ten-year conditional-release period.2         The state

appeals.



1
  See Williams v. State, 760 N.W.2d 8, 12 (Minn. App. 2009) (“A plea constitutes a
Norgaard plea if the defendant asserts an absence of memory on the essential elements of
the offense but pleads guilty because the record establishes, and the defendant reasonably
believes, that the state has sufficient evidence to obtain a conviction.”), review denied
(Minn. Apr. 21, 2009).
2
  The plea agreement also resolved a first-degree criminal-damage-to-property charge, a
gross-misdemeanor DWI, and a misdemeanor-DWI probation violation.

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                                          ISSUE

         Did the district court err when it granted respondent a downward durational

departure based on respondent’s remorse?

                                        ANALYSIS

         The Minnesota Sentencing Guidelines set forth sentence ranges “presumed to be

appropriate for the crimes to which they apply.” Minn. Sent. Guidelines 2.D.1. The

district court must impose the presumptive sentence unless there are “substantial and

compelling circumstances” that warrant departure. State v. Kindem, 313 N.W.2d 6, 7

(Minn. 1981). The Minnesota Sentencing Guidelines set forth a nonexclusive list of

aggravating and mitigating factors used to justify departures. Minn. Sent. Guidelines

2.D.3.

         We generally review a sentencing-guidelines departure for an abuse of discretion.

State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003). But the question of whether the

court relied on proper reasons to depart is a question of law. Dillon v. State, 781 N.W.2d

588, 595 (Minn. App. 2010), review denied (Minn. July 20, 2010).

         There are two types of departures: dispositional and durational.    Minn. Sent.

Guidelines 2.D.1.a. The district court may consider only offense-related factors—and not

offender-related factors—when granting a downward durational departure.           State v.

Peter, 825 N.W.2d 126, 130 (Minn. App. 2012), review denied (Minn. Feb. 27, 2013).

Essentially, when considering whether to grant a downward durational departure, the

court determines whether the offense was significantly less serious than the typical

conduct involved in that offense. Id.


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       Here, the district court improperly relied on several offender-related factors in

granting respondent a downward durational departure, including his age and cooperation

with law enforcement. See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (concluding

that age and cooperation relate to whether a defendant is amenable to probation, a

dispositional-departure consideration). The district court also noted respondent’s limited

criminal history. But his criminal history was already considered in determining the

presumptive sentence. See Minn. Sent. Guidelines 1.A (stating that the guidelines are

proportional to the severity of the offense and the offender’s criminal history).      In

addition, the district court specifically rejected respondent’s argument that the conduct

underlying his conviction was less serious than the typical offense of criminal sexual

conduct in the third degree. On the record, the district court found that no one could say

that this is “a less culpable kind of crime than the normal crime.”

       Even when the district court’s given reasons are “improper or inadequate,” an

appellate court may affirm a durational departure when the record contains sufficient,

appropriate reasons that justify the departure. Williams v. State, 361 N.W.2d 840, 844

(Minn. 1985). Respondent asserts that his remorse was a proper, sufficient factor to

justify a downward durational departure.3 Generally, “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). But remorse can be

3
 Respondent argues that a court need rely only on a single factor to grant a departure.
But he cites caselaw holding that a single aggravating factor may justify an upward
departure. See Dillon v. State, 781 N.W.2d at 599. He does not cite, nor could we find,
any caselaw holding that a single factor is sufficient to justify a downward durational
departure.

                                             5
considered in durational departures where remorse, or the lack thereof, bears on the

seriousness of the conduct of the underlying offense. State v. Bauerly, 520 N.W.2d 760,

762 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994); see also State v. McGee,

347 N.W.2d 802, 806 n.1 (Minn. 1984) (“[T]here may be cases in which the defendant’s

lack of remorse could . . . be considered as evidence bearing on a determination of the

cruelty or seriousness of the conduct on which the conviction was based.”).

          In Bauerly, the district court granted the defendant a downward durational

departure from her sentence for stealing from her employer. Bauerly, 520 N.W.2d at

762. The district court based its decision partly on the defendant’s remorse and partly on

the fact that the theft “barely exceeded” the felony threshold. Id. The state appealed,

arguing that the district court considered improper factors and that the amount stolen did

not make the offense significantly less serious. Id. This court held that the district

court’s finding that the defendant’s remorse reflected on the seriousness of offense,

coupled with the amount stolen, justified the one-day downward durational departure. Id.

at 763.

          Here, there is no indication that respondent’s remorse diminishes the seriousness

of the offense. Although respondent claims that “[h]e was so overcome by remorse that

he agreed to enter into an open guilty plea in the middle of trial,” this assertion is not

fully supported by the record. The victim had previously confronted respondent about

the offense, and he claimed to have no memory of it. Respondent did not enter a plea

until trial was well underway; this was after numerous witnesses had testified and the

district court had ruled on the permissibility of a rebuttal witness. These facts do not


                                              6
support respondent’s claim that he was remorseful once he realized what he had done.

Instead, it seems that he showed remorse once he realized a conviction was likely.

       Bauerly is also distinguishable from this matter because the Bauerly court relied

on two factors: the defendant’s remorse and the fact that the amount stolen was

minimally over the felony threshold. Id. In contrast, respondent’s violent sexual assault

clearly satisfied the statutory elements of the felony to which he pleaded guilty. And the

downward departure in Bauerly was one day; here the departure was 23 months.

       In sum, respondent has not provided, nor did we find, any authority to support

respondent’s argument that remorse alone can support a downward durational departure

when the purported remorse does not “relate back” to the offense or make his conduct

less serious than the typical offense.

                                         DECISION

       The district court improperly relied on offender-related factors to support its

downward durational departure, and respondent’s remorse, which does not diminish the

seriousness of the crime, is an insufficient factor standing alone to support a durational

departure.   Therefore, we reverse and remand for resentencing consistent with this

opinion.

       Reversed and remanded.




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