                            This opinion will be unpublished and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
                                       A14-0340

                                      State of Minnesota,
                                           Appellant,

                                              vs.

                                   David Edward Westgard,
                                         Respondent.

                                  Filed September 8, 2014
                                  Reversed and remanded
                                     Halbrooks, Judge


                                 Dakota County District Court
                                 File No. 19HA-CR-12-4014

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, Veronica Surges Shacka,
Assistant Public Defender, St. Paul, Minnesota (for respondent)

         Considered and decided by Halbrooks, Presiding Judge; Ross, Judge; and Chutich,

Judge.

                           UNPUBLISHED OPINION

HALBROOKS, Judge

         In this appeal, the state challenges the district court’s sentencing decision to grant

respondent a downward durational departure. Because three of the district court’s four
reasons for departing do not justify imposing a shorter sentence and because the fourth

reason is not supported by the record, we reverse and remand.

                                        FACTS

      In December 2011, the American Postal Workers Local 65 noticed some

“irregularities” in its finances. The union investigated the matter and discovered that

during the previous five months, its treasurer, respondent David Westgard, had

embezzled $22,719 via unauthorized transactions with the union’s credit card and

unauthorized transfers of money from the union’s bank account. Westgard admitted

taking the money to support his gambling habit and pleaded guilty to theft in violation of

Minn. Stat. § 609.52, subds. 2(a)(5)(i), 3(2), 3(5) (2010). Based on the severity level of

Westgard’s offense and his criminal history, the sentencing guidelines provided a

presumptive stayed sentence of one year and one day.             Community corrections

recommended that Westgard be granted a stay of imposition of sentence and placed on

probation for seven years.

      Union president Todd Elkerton filed a victim-impact statement with the district

court. Elkerton stated that Westgard had violated the members’ trust in the union and

jeopardized the union’s credibility. He stated that Westgard ultimately paid back all the

money he stole, but added that on three separate occasions Westgard presented a sum of

money that Westgard falsely characterized as full reimbursement only to have additional

embezzlement discovered later by the union. Elkerton also said that Westgard’s actions

required the union “to spend significant amounts of time and money to internally




                                            2
investigate and seek legal consultation.” As a result, the union requested $4,241.53 in

restitution to cover its audit expenses and attorney fees.

       Westgard moved the district court for a downward dispositional departure, arguing

that he is amenable to probation and unlikely to reoffend. At the sentencing hearing,

Westgard’s attorney noted that Westgard confessed when confronted about the theft,

assisted with the union’s internal audit, and repaid all missing funds. The attorney also

emphasized that Westgard is 47 years old and served as union treasurer for eight years,

handling hundreds of thousands of dollars.          The attorney said, “[Westgard] was

overseeing a lot more money than the amount that he illegally used to gamble with,” and

later stated, “[Westgard] didn’t take a bunch of money and take some trips and, you

know, buy his girlfriend or whoever a fancy piece of jewelry, which we often see people

commit these crimes just out of pure greed. He didn’t do that. He took it to gamble with

it.” The attorney requested that the district court sentence Westgard’s offense as a gross

misdemeanor, not a felony, or, in the alternative, to impose a probation term shorter than

the PSI recommendation.

       The state supported the PSI’s recommended probation term but opposed

Westgard’s request for a gross-misdemeanor disposition. The prosecutor noted that the

guidelines sentence is probation and stated that “[n]obody is asking for [Westgard] to go

to prison.” She stated that by seeking a gross-misdemeanor disposition, Westgard was

requesting a durational departure, not a dispositional departure as his motion indicated.

She argued that there are no substantial and compelling reasons to support a durational

departure in Westgard’s case.


                                              3
       Westgard addressed the district court himself. He stated that his actions were

wrong, that he feels terrible about what he did, and that he “deeply regret[s] and [is]

shameful about that period of time.” He said that he is in a better place now, that his life

is progressing positively, and that he has “no doubt that this will not happen again.”

       The district court, after discussing Elkerton’s statement, asked Westgard to

convince him that he is remorseful and knew that he was committing a crime. Westgard

responded that he feels bad every day about what he did and feels terrible for letting

Elkerton down. He added, “I’m very ashamed. I didn’t want people to show up because

I’m shameful of what happened. I didn’t want them to know because I’m ashamed.” The

district court stated, “Being ashamed or afraid of how others are perceiving you is

different than being sorry for what took place. That’s what I look at.”           Westgard

responded, “I’m very sorry for what took place. I believe [Elkerton] knows that.”

       The district court then presented Westgard with two options, stating:

                     I’m going to offer you Door A or Door B. Okay?
              Door A would be sentenced exactly per the PSI
              recommendations. Door B would be that I would give him a
              gross misdemeanor disposition, but that 20 days would
              become 20 days in custody. So he can have a gross
              mis[demeanor] disposition for 20 days in jail.
                     Feeling ashamed isn’t enough of a penalty for what
              you did here, not by any stretch of the imagination. This is
              big dollars. And [if] [the prosecutor] wanted to go appeal on
              what I’m doing, she would probably be successful at it. But
              you did one day and some community work service. That
              doesn’t fly. And I’ll give you the gross mis[demeanor]
              dispo[sition] if you go serve 20 days in jail. 21 days, credit
              one, and then you get a third off. You have work release, so
              you have your job as long as you have a license and can get
              back and forth.



                                             4
       After a brief recess, Westgard chose “Door B,” the gross-misdemeanor disposition

and jail time. The district court sentenced him to 365 days in the Dakota County Jail,

staying 345 days and allowing him to serve the remaining 20 on work release if eligible.

It also placed him on supervised probation for two years and required him to pay the

requested restitution amount. The state appeals.

                                     DECISION

       The sentencing guidelines provide for a sentence of one year and one day for

Westgard’s conviction based on the severity of his offense and his criminal history. This

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

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

different sentence. Minn. Sent. Guidelines 2.D.1 (2012); see also State v. Spain, 590

N.W.2d 85, 88 (Minn. 1999) (stating that the sentencing court has no discretion to depart

“unless aggravating or mitigating factors are present”).

       The district court sentenced Westgard to 365 days, one day less than the

presumptive duration, and correctly identified this sentence as a downward durational

departure. See State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (holding that

pronouncing a year-long sentence for an offense that carried a presumptive sentence of a

year and a day is a durational departure), review denied (Minn. Oct. 27, 1994). Although

the court provided no reasons for the departure at the sentencing hearing, it marked four

in its departure report: “Crime less onerous than usual,” “Amenable to probation,”

“Amenable to treatment,” and “Impose restitution/ensure financial penalties paid.”




                                             5
       When the district court states its reasons for a departure, we must “examine the

record to determine if the reasons given justify the departure.” State v. McIntosh, 641

N.W.2d 3, 8 (Minn. 2002). Whether a stated reason for departure is “proper” is a legal

question. Dillon v. State, 781 N.W.2d 588, 595 (Minn. App. 2010), review denied (Minn.

July 20, 2010). “Once we determine as a matter of law that the district court has

identified proper grounds justifying a challenged departure, we review its decision

whether to depart for an abuse of discretion.” Id.

       Three of the district court’s reasons for making a durational departure are

improper because they concern Westgard as an offender as opposed to his offense. See

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

2013) (“Caselaw is settled that offender-related factors do not support durational

departures.”). Instead, amenability to probation and treatment are factors related to the

individual that may support a dispositional departure. State v. Herrmann, 479 N.W.2d

724, 728 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). Likewise, ensuring

payment of restitution can justify a dispositional, but not a durational, departure. State v.

Dillener, 336 N.W.2d 268, 269 (Minn. 1983).

       The only potentially appropriate factor for a downward durational departure

indicated by the district court is the severity of the offense. See State v. Cox, 343 N.W.2d

641, 643 (Minn. 1984) (“The general issue that faces a sentencing court in deciding

whether to depart durationally is whether the defendant’s conduct was significantly more

or less serious than that typically involved in the commission of the crime in question.”).

But while the district court marked that Westgard’s crime was “less onerous than usual,”


                                             6
it made no record explaining why. In fact, a statement from the sentencing hearing

suggests that the district court felt the opposite. The district court said to Westgard,

“Feeling ashamed isn’t enough of a penalty for what you did here, not by any stretch of

the imagination. This is big dollars.” And Westgard acknowledges in his brief that the

district court “made it very clear [that his] offense was serious.” Without any explanation

as to why Westgard’s offense is less serious than other similar offenses, this basis is

inadequate to justify the departure.

       When the district court gives improper or inadequate reasons for a departure, we

must determine whether there is sufficient evidence in the record to justify the departure.

McIntosh, 641 N.W.2d at 8. Westgard argues that his “remorse and reparation” justifies

his durational departure. Specifically, he emphasizes that he (1) “displayed open and

genuine remorse throughout the entire process, including resigning his position with the

Union before he was charged . . . and seeking out gambling treatment before being

sentenced,” (2) “only stole money because he had a gambling addiction,” and (3) “had

already made the victim whole by paying restitution to the Union before he was caught

and charged.”

       As we have previously stated, whether a defendant’s remorse is an appropriate

factor when considering a departure “has received somewhat conflicting treatment in the

caselaw.” Dillon, 781 N.W.2d at 599 (addressing lack of remorse as a basis for an

upward departure). “Remorse, or lack of remorse, generally bears on the defendant’s

amenability to probation, and is relevant to a dispositional departure.” Bauerly, 520

N.W.2d at 762. “However, there may be cases in which the defendant’s lack of remorse


                                            7
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).

       The majority of cases considering remorsefulness as a basis for departing

durationally have involved a lack of remorse—justifying a longer sentence. See, e.g.,

State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998) (holding that defendant’s “entire

lack of remorse” was a sufficient reason to grant upward durational departure); State v.

VanZee, 547 N.W.2d 387, 392-93 (Minn. App. 1996) (holding that “overwhelming

evidence” of defendant’s lack of remorse “was properly considered as an aggravating

factor justifying an upward durational departure”), review denied (Minn. July 10, 1996).

While Westgard relies on Bauerly to argue that his remorse justifies a shorter sentence,

that case is distinguishable.

       In Bauerly, we did not hold that the defendant’s remorse alone supported his

downward durational departure. See 520 N.W.2d at 763. We instead ruled that the

district court did not err by considering remorse and that the departure was also supported

by the “significantly lower amount of property involved.” Id. That is not the case here.

First, the district court made no finding that Westgard is remorseful. It could have

selected “Shows remorse/accepts responsibility” as a reason for departing on the

departure report, but it did not.    Further, the amount Westgard stole—$22,719—is

significantly more than that required for felony theft, and his conduct could have justified

an upward departure under Minn. Sent. Guidelines 2.D.3.b. As the union treasurer,

Westgard had a fiduciary relationship with the union and its members. He emphasizes


                                             8
that he “made the victim whole” by repaying the funds he stole, but he was not

forthcoming about the total amount of his theft. He waited for it to be uncovered by the

union. And the repercussions from Westgard’s theft cost the union more than $4,000

beyond the misappropriated funds, not to mention the non-financial harm concerning

members’ trust and the union’s reputation. All these factors demonstrate that Westgard’s

offense was not less serious than an ordinary theft.

       Because there are no substantial and compelling reasons to justify a downward

durational departure in Westgard’s case, we reverse and remand to the district court for

imposition of the presumptive felony sentence of one year and one day. See McIntosh,

641 N.W.2d at 8 (“If the reasons given are improper or inadequate and there is

insufficient evidence of record to justify the departure, the departure will be reversed.”).

       The state also argues that the district court, by allowing Westgard to choose

between two sentences, abused its discretion, violated separation of powers, and

undermined the sentencing guidelines’ purpose of uniformity. Because we reverse and

remand based on the lack of justification for Westgard’s sentence, we do not decide this

issue. But we note our concern that the district court, which has “broad discretion to

determine the appropriate sentence,” State v. Aleshire, 451 N.W.2d 66, 67 (Minn. App.

1990), review denied (Minn. Apr. 13, 1990), abandoned its sentencing role by essentially

transferring its discretion to Westgard and allowing him to choose his own sentence. See

State v. Olson, 325 N.W.2d 13, 18 (Minn. 1982) (stating that imposing a sentence within

legislative limits is “purely a judicial function”). In doing so, the district court failed to

exercise its discretion, which further supports remanding this case. See State v. Mendoza,


                                              9
638 N.W.2d 480, 484 (Minn. App. 2002) (remanding case in which “an exercise of

discretion may not have occurred”), review denied (Minn. Apr. 16, 2002).

      Reversed and remanded.




                                          10
