                        This opinion will be unpublished and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
                                   A15-0309

                                 State of Minnesota,
                                      Appellant,

                                         vs.

                               Krystal Elizabeth Alwin,
                                     Respondent.

                               Filed August 31, 2015
                              Reversed and remanded
                                   Stauber, Judge

                            Ramsey County District Court
                               File No. 62CR142036

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant State
Public Defender, St. Paul, Minnesota (for respondent)

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

Stoneburner, Judge.




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                          UNPUBLISHED OPINION

STAUBER, Judge

       The state challenges the district court’s imposition of a gross-misdemeanor

sentence that was one day shorter than the presumptive felony sentence, arguing that this

constituted a durational departure that the district court did not justify with sufficient

offense-related findings. We agree, and we reverse and remand for resentencing.

                                           FACTS

       In November 2013, during a legal traffic stop, a state patrol officer detected a

marijuana odor emanating from respondent Krystal Elizabeth Alwin’s vehicle. When

questioned about the odor, Alwin handed the officer her purse, which contained

marijuana, hashish oil lollipops, and hashish oil candies. Alwin admitted the drugs were

hers and claimed she used them to control her pregnancy-related morning sickness.

Alwin was charged with one count of fifth-degree controlled-substance possession, a

felony.

       Alwin pleaded guilty and moved for a dispositional sentencing departure,

requesting that the presumptive year-and-a-day stayed felony sentence be reduced by one

day to a 365-day stayed gross-misdemeanor sentence. Alwin stated that she displayed a

“remorseful attitude,” had completed chemical-dependency treatment, and had provided

consistently negative drug-test results. She also claimed that a felony disposition would

cause her to lose her sober housing. The state opposed Alwin’s motion, arguing that she

was actually requesting a durational departure because she requested a shorter sentence,

and that a durational departure is unwarranted because her offense is not less serious than


                                               2
the typical offense. The district court concluded that Alwin’s request constituted a

dispositional departure because the requested sentence would result in a jail rather than a

prison sentence. The district court granted the 365-day stayed sentence based on Alwin’s

completion of treatment and her sober housing. This state appeal follows.

                                      DECISION

       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 (2012).

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

compelling circumstances” to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

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

abuse of discretion. State v. Robideau, 796 N.W.2d 147, 150 (Minn. 2011). But the

question of whether the district court relied on proper reasons to depart is a question of

law subject to de novo review. Dillon v. State, 781 N.W.2d 588, 595 (Minn. App. 2010),

review denied (Minn. July 20, 2010).

       The state first asserts that the district court erred by characterizing the sentence

imposed as a dispositional departure rather than a durational departure. In State v.

Bauerly, this court ruled that the imposition of a 365-day gross-misdemeanor sentence on

a felony conviction that carried a presumptive year-and-a-day sentence “is a durational

departure rather than a dispositional departure.” 520 N.W.2d 760, 762 (Minn. App.

1994), review denied (Minn. Oct. 27, 1994). Likewise, because Alwin’s imposed stayed

sentence was reduced by one day from the presumptive stayed sentence, it constitutes a

durational departure.


                                              3
       The district court may consider only offense-related factors—and not offender-

related factors—when granting durational departure. State v. Peter, 825 N.W.2d 126,

130 (Minn. App. 2012), review denied (Minn. Feb. 27, 2013). Essentially, for durational

departures, the court considers whether the offense was significantly less serious than the

typical conduct involved for that offense. Id.

       Here, the district court relied upon factors used to justify a dispositional departure,

including Alwin’s amenability to probation, the steps she had taken to correct her

behavior, and society’s best interests. See State v. Heywood, 338 N.W.2d 243, 244

(Minn. 1983) (holding that to justify a dispositional departure the district court “can focus

more on the defendant as an individual and on whether the presumptive sentence would

be best for [her] and for society”). But “[c]aselaw is settled that offender-related factors

do not support durational departures.” Peter, 825 N.W.2d at 130. Therefore, the district

court improperly relied upon offender-related factors when granting a durational

departure.

       However, even if the departure reasons relied upon by the district court are

improper or inadequate, we may affirm if “there is sufficient evidence in the record to

justify departure.” Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). Alwin argues

that her cooperation with law enforcement supports the downward durational departure.

Cooperation with law enforcement generally relates to whether a defendant is amenable

to probation, a factor used to justify a dispositional departure. State v. Trog, 323 N.W.2d

28, 31 (Minn. 1982). The record before us does not demonstrate that Alwin’s surrender

of the drugs mitigates the seriousness of possessing a controlled substance. Moreover,


                                              4
we do not observe other factors that make Alwin’s offense less serious than the typical

offense.1

       The state finally contends that we should not remand for resentencing, relying on

State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003). Geller states that “[a]bsent a

statement of the reasons for the sentencing departure placed on the record at the time of

sentencing, no departure will be allowed.” Id. But Geller involved an upward departure

where the record was devoid of reasoning for the departure. Here, although the district

court mischaracterized the downward durational departure as a dispositional departure,

the district court stated its reasoning at the time of sentencing. Therefore, we reverse and

remand for resentencing.

       Reversed and remanded.




1
 We note that the record does not reflect the weight of Alwin’s controlled substances, but
any amount of product containing marijuana or THC constitutes fifth-degree possession.
Minn. Stat. § 152.025, subd. 2(a)(1) (2012). While fifth-degree possession excludes a
“small amount of marijuana,” that definition specifically excludes the resinous form of
marijuana, also known as hashish. Minn. Stat. § 152.01, subd. 16 (2012); State v. Soutor,
316 N.W.2d 576, 576 (Minn. 1982). And Alwin possessed numerous individual hashish
oil products, therefore likely easily exceeding the felony threshold. Cf. Bauerly, 520
N.W.2d at 762 (affirming a downward durational departure in a theft case where the
dollar amount stolen “barely exceeded” the felony threshold).

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