                        This opinion will be unpublished and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
                                   A16-0561


                                 State of Minnesota,
                                      Appellant,

                                         vs.

                                 Abigail Rae Trulson,
                                    Respondent.


                               Filed August 22, 2016
                              Reversed and remanded
                                 Bjorkman, Judge


                            Dakota County District Court
                            File No. 19HA-CR-15-2460

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

James C. Backstrom, Dakota County Attorney, Jackie Warner, Assistant County Attorney,
Hastings, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for respondent)

      Considered and decided by Bjorkman, Presiding Judge; Kirk, Judge; and

Kalitowski, Judge.




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                         UNPUBLISHED OPINION

BJORKMAN, Judge

       Appellant State of Minnesota challenges the district court’s grant of a downward

durational departure arguing that there are no substantial and compelling reasons to justify

the departure. We reverse and remand for imposition of a presumptive sentence.

                                          FACTS

       Between April 1, 2015, and May 10, 2015, respondent Abigail Rae Trulson

provided in-home personal-care services for a boy in Eagan and a woman in Burnsville.

During that time, Trulson stole numerous items from the boy, including gift certificates,

DVDs, and video games. Trulson stole three rings and two necklaces from the woman.

The aggregate value of the stolen items was $2,080.

       The state charged Trulson with felony theft of property with an aggregate value

greater than $1,000 but less than $5,000. Trulson pleaded guilty to the charged offense,

acknowledging that there was no agreement regarding her sentence. The presumptive

sentence is a stayed prison term of one year and one day—a felony disposition.

       At sentencing, Trulson moved for a downward durational departure. The state

opposed the motion, arguing there are no offense-specific mitigating factors. The district

court granted the motion, imposing a stayed 365-day sentence, and placing Trulson on

probation for two years. The district court stated that the departure was warranted because

the thefts were motivated by Trulson’s drug addiction and she is amenable to probation.

The district court noted that this was Trulson’s first adult offense and that she was only 20

years old. The state appeals.


                                             2
                                       DECISION

I.     The district court abused its discretion by granting a downward durational
       departure.

       The Minnesota Sentencing Guidelines establish sentencing ranges that are

presumed to be appropriate. State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). The district

court must impose a sentence within the applicable range unless substantial and compelling

circumstances distinguish the offender or the offense and “overcome the presumption in

favor of the guidelines sentence.” Id.

       We generally review a district court’s decision whether to depart from a

presumptive sentence for an abuse of discretion. Dillon v. State, 781 N.W.2d 588, 595

(Minn. App. 2010), review denied (Minn. July 20, 2010). But “the question of whether the

district court’s reason for the departure is ‘proper’ is treated as a legal issue” that we review

de novo. Id. The district court must state its reasons for departing in writing or on the

record at the time of sentencing. State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003). If

the stated reasons are legally sound and supported by the record, we will affirm. Id.

       The presumptive sentence in this case is a stayed sentence of one year and one day.

Minn. Sent. Guidelines 4.A (2014). The district court stayed execution of a 365-day

sentence—a gross misdemeanor disposition. Such a sentence is a downward durational

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

imposition of a 365-day gross-misdemeanor sentence on a felony conviction is a downward

durational departure), review denied (Minn. Oct. 27, 1994). Only offense-related factors

can support a durational departure. State v. Peter, 825 N.W.2d 126, 130 (Minn. App. 2012)



                                               3
(“Caselaw is settled that offender-related factors do not support durational departures.”),

review denied (Minn. Feb. 27, 2013). In other words, “[a] downward durational departure

is justified only if the defendant’s conduct was significantly less serious than that typically

involved in the commission of the offense.” State v. Solberg, __ N.W.2d __, __, 2016 WL

4051620, at *4 (Minn. July 27, 2016) (quotation omitted).

       Stated Reasons for Departure

       At sentencing, the district court stated that it was departing durationally because

Trulson is only 20 years old, this is her first adult offense, and she is amenable to probation.

And the district court noted that Trulson’s actions were motivated by her drug addiction,

which “affect[ed] the nature of the offense.” The state argues that these offender-related

factors do not support a downward durational departure. We agree.

       Three of the district court’s sentencing bases—Trulson’s age, criminal history, and

amenability to probation—are clearly personal characteristics that are in no way related to

the nature of the offense. State v. Behl, 573 N.W.2d 711, 713 (Minn. App. 1998) (stating

that a defendant’s amenability to probation does not support a durational departure), review

denied (Minn. Mar. 19, 1998); Bauerly, 520 N.W.2d at 762 (holding that age and lack of

felony record are not valid grounds for durational departures).1 Because offender-related

factors cannot support the district court’s durational departure, we must determine whether

Trulson’s drug addiction is an offense or an offender-related factor.


1
  We recognize that personal characteristics may support a dispositional departure, but
Trulson received a durational departure. See State v. Trog, 323 N.W.2d 28, 31 (Minn.
1982) (stating that offender-related factors, such as amenability to treatment or probation,
age, and cooperation, may be considered when imposing a dispositional departure).

                                               4
       The district court stated, without explanation, that Trulson’s drug addiction affected

the nature of the offense. Likewise, Trulson fails to explain how her addiction renders her

conduct less serious than conduct associated with a typical felony theft offense. Minn.

Sent. Guidelines 2.D.3.a.(5) (2014) (stating that a departure may be supported by

circumstances that mitigate an offender’s culpability). We are not persuaded that Trulson’s

specific motive for stealing from her victims distinguishes her crime from other theft

offenses. Individuals who commit theft presumably do so for many different reasons that

are specific to them. This demonstrates why a person’s motivation to steal is an offender-

related factor. Moreover, as the state points out, chemical dependency is generally not an

appropriate factor to consider when deciding whether to depart durationally. State v.

Gardner, 328 N.W.2d 159, 162 (Minn. 1983) (“Defendant’s chemical dependency problem

and his dangerousness are not the sort of factors which can be relied upon as justifying a

durational departure.”).

       Trulson also argues that her conduct was less culpable because she lacked

substantial capacity for judgment due to her drug addiction. Minn. Sent. Guidelines

2.D.3.a.(3) (2014). But she fails to point to anything in the record that indicates she lacked

capacity for judgment when she committed the thefts. And the guidelines provision that

Trulson relies on specifically states, “[t]he voluntary use of intoxicants (drugs or alcohol)

does not fall within the purview of this factor.” Id. On this record, we conclude that

Trulson’s age, criminal history, amenability to probation, and drug addiction are not valid

bases for a downward durational departure.




                                              5
       Other Evidence in the Record

       Although the district court’s stated reasons for the departure are not proper, we

examine the record to determine if it contains sufficient evidence to justify a durational

departure. Geller, 665 N.W.2d at 516 (“If the reasons given are improper or inadequate

and there is insufficient evidence of record to justify the departure, the departure will be

reversed.” (quotation omitted)). Trulson argues that the departure is valid because of her

remorse and the relatively low value of the items she stole. We disagree.

       “[A] defendant’s remorse generally does not bear on a decision to reduce the length

of a sentence.” Solberg, 2016 WL 4051620, at *5. Remorse may only be considered in

this context when it “bears on a determination of the cruelty or seriousness of the conduct

on which the conviction was based.” Id. at *6 (stating that linking remorse back to the

offense itself “will not be an easy task”); see also Bauerly, 520 N.W.2d at 763 (noting that

remorse is relevant to durational departures when it relates back to the seriousness of the

offense). While Trulson may feel genuine remorse for her actions, nothing in the record

relates her remorse back to the offense or reflects any effort to lessen the impact of her

crime. Trulson acted alone and on her own behalf each time she stole from the victims.

We cannot discern how her subsequent remorse has any bearing on the seriousness or

cruelty of her offense.

       Trulson cites Bauerly for the proposition that a durational departure is proper when

the dollar value of stolen property is closer to the low end of the statutory-offense range.

In Bauerly, we held that Bauerly’s remorse—which related back to the seriousness of the

offense—and the “significantly lower amount of property involved” in the theft supported


                                             6
a downward durational departure. 520 N.W.2d at 763. We are not persuaded that Bauerly

supports the district court’s departure in this case.

       Unlike in Bauerly, Trulson stole property with an aggregate value of more than

twice the minimum amount required for conviction of the charged offense. Bauerly stole

property worth between $671 and $854, and was convicted of theft of property with a value

of $500 to $2,500. Id. at 761, 763 (citing Minn. Stat. § 609.52, subds. 2(1), 3(3)(a) (1992)).

Trulson stole property valued at $2,080 and was convicted of theft of property with a value

of $1,000 to $5,000.      Minn. Stat. § 609.52, subds. 2(a)(1), 3(3)(a) (2014).         More

importantly, Bauerly did not involve aggravating facts that are present here. Indeed, the

evidence supports a finding that Trulson’s conduct was more—not less—serious than that

associated with a typical theft. Trulson’s victims were vulnerable due to their age and

physical condition. Minn. Sent. Guidelines 2.D.3.b.(1) (2014). Both victims relied on

Trulson to care for them; she used her position of trust to commit the offense. Minn. Sent.

Guidelines 2.D.3.b.(4) (2014). And Trulson committed the thefts in the victims’ homes,

where they had a unique expectation of privacy. Minn. Sent. Guidelines 2.D.3.b.(14)

(2014). In sum, the evidence establishes that Trulson’s offense was not substantially less

serious than the typical theft.2 Accordingly, we reverse the sentencing departure and

remand to the district court for imposition of a guidelines sentence.


2
  We acknowledge the district court’s motivation to give Trulson a chance to rehabilitate
and restore the community without facing the consequences of a felony conviction. See
Minn. Stat. § 609.13, subd. 1(1) (2014) (providing that a felony conviction is deemed to be
a gross misdemeanor conviction if the sentence imposed is within the statutory limits for
gross misdemeanors). But the law provides that offender-related characteristics cannot
support a downward durational departure. Peter, 825 N.W.2d at 130.

                                               7
II.    Trulson received the benefit of her plea agreement.

       Trulson argues that if we reverse her sentence she is entitled to withdraw her guilty

plea because she did not receive the benefit of her plea agreement. Stated another way,

Trulson contends that her ability to argue for a durational departure was a condition of her

plea. We disagree.

       To determine whether a plea agreement was violated, we look to what the parties

reasonably understood to be the terms of the agreement. State v. Brown, 606 N.W.2d 670,

674 (Minn. 2000). Determining what the parties agreed to is a question of fact, but

interpreting and enforcing plea agreements are questions of law that we review de novo.

Id.

       It is undisputed that the parties’ plea agreement did not include an agreed-upon

sentence. Trulson acknowledged in her plea petition that she was pleading guilty to felony

theft and would argue for a gross misdemeanor disposition. The plea petition also indicates

that the state would argue for the guidelines felony sentence. At the plea hearing, Trulson

acknowledged these terms and stated that she understood there were no promises or

guarantees regarding her sentence. And at sentencing, each party argued for the disposition

that was noted in the plea petition. Because both parties fulfilled the agreement, we

conclude that Trulson received the benefit of her plea agreement.

       Reversed and remanded.




                                             8
