                            This opinion will be unpublished and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
                                       A14-1130

                                      State of Minnesota,
                                           Appellant,

                                              vs.

                                   Leann Bobleter Sargent,
                                        Respondent.

                                  Filed February 17, 2015
                                  Reversed and remanded
                                       Hooten, Judge

                               Hennepin County District Court
                                  File No. 27-CR-13-3314

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

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for appellant)

Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for respondent)

         Considered and decided by Hooten, Presiding Judge; Rodenberg, Judge; and Kirk,

Judge.

                           UNPUBLISHED OPINION

HOOTEN, Judge

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

respondent a downward durational departure. Because the district court’s stated reasons
for the departure are improper and there is insufficient evidence in the record to justify

the departure, the district court abused its discretion. We therefore reverse and remand.

                                         FACTS

       These facts are based primarily on the complaint. Respondent Leann Bobleter

Sargent is the daughter of R.B. (decedent). From 2008 until decedent’s death in 2012,

Sargent held various fiduciary positions on behalf of decedent. She was the co-trustee of

decedent’s trust and held a power of attorney for decedent. Pursuant to the power of

attorney, Sargent was permitted to conduct transactions on decedent’s behalf involving

decedent’s real estate, personal property, bank accounts, and credit cards.

       Decedent suffered from chronic kidney disease. After a hospitalization in January

2010, he moved into Sargent’s home in Maple Grove and lived with her until his death in

March 2012 at the age of 84. In November 2010, Sargent and decedent executed a

personal care agreement and a room and board agreement, under which Sargent agreed to

provide decedent with room, board, transportation, and other basic living needs in

exchange for payment of a total of $2,000 per month. The total amount Sargent was

entitled to under these agreements for the entire period of her caregiving was $24,000.

       After decedent’s death, Sargent’s brother discovered that decedent’s bank

accounts were nearly empty. An investigation commenced which revealed that Sargent

had withdrawn significant amounts of money from decedent’s accounts beyond what was

allowed under her agreements with decedent, and that she had used those funds for her

own personal benefit, not for decedent’s. The complaint alleges that, between April 2011

and March 2012, Sargent withdrew from decedent’s checking account, and charged to his


                                             2
credit cards, approximately $73,348 in excess of the amount she was entitled to under the

agreements.

       Shortly before decedent’s death, Sargent used the power of attorney to orchestrate

a real-estate transaction regarding decedent’s cabin, which was unencumbered, and his

townhouse, which was encumbered by a mortgage. Under decedent’s will, the cabin was

to be divided equally between Sargent and her brother upon decedent’s death, while the

townhouse was to pass to Sargent alone. On February 29, 2012, Sargent took out a

$58,000 mortgage on the cabin. She used $38,836.37 from the new mortgage to satisfy

the outstanding mortgage on the townhouse, which she inherited shortly thereafter. After

decedent’s death, Sargent’s brother was forced to assume mortgage payments on the

cabin in the amount of $587.22 per month.

       In January 2013, Sargent was charged with one count of financial exploitation of a

vulnerable adult (over $35,000), in violation of Minn. Stat. §§ 609.2335, subd. 1(1)(ii),

.52, subd. 3(1) (2010). A pre-plea investigation report (PPI) indicated that Sargent’s

offense had a severity level of seven, her criminal history score was zero, and the

presumptive sentence under the Minnesota Sentencing Guidelines was a stayed sentence

of 36 months in prison. The PPI recommended a stay of imposition with a probationary

period of 20 years.

       A plea hearing was held in February 2014. At the commencement of the hearing,

the district court described an off-the-record discussion with the prosecutor and Sargent’s

defense counsel about the sentence that would be imposed if Sargent were to enter a plea.

The district court explained to Sargent that, during this off-the-record discussion, it had


                                            3
advised Sargent’s defense counsel that it would strongly consider imposing a stay of

imposition and that Sargent could withdraw her plea and proceed to trial if it decided to

sentence her “to anything other than a stay of imposition.”

       With this explanation, Sargent pleaded guilty to the sole count in the complaint,

noting that she planned to request a downward departure to a gross misdemeanor

sentence. Defense counsel and the prosecutor established a factual basis for the offense.

Sargent acknowledged that decedent was a vulnerable adult during the relevant time

period; she held a power of attorney for decedent; she intentionally took decedent’s

money for her own benefit and without his permission, in excess of $35,000; she had

access to decedent’s accounts and credit cards; she used decedent’s money to purchase a

number of items unrelated to decedent’s care; and she wrote herself a number of checks

from decedent’s account for her own benefit. The district court determined that there was

a sufficient factual basis to support a finding of guilt beyond a reasonable doubt.

However, the district court deferred accepting Sargent’s plea until sentencing, stating,

“As I have told you, if I don’t sentence you consistently with what I manifested to

[c]ounsel[,] I will allow you to withdraw your plea.”

       Prior to sentencing, Sargent moved for a downward departure to a gross

misdemeanor sentence.      The state had previously moved for an upward durational

departure, arguing that Sargent’s offense was a “major economic offense” under

Minnesota Sentencing Guidelines II.D.2.b(4) (2010).1          However, in its sentencing


1
  Although throughout this opinion we cite to the 2010 version of the Minnesota
Sentencing Guidelines, which was in effect at the time Sargent’s offense began, we note

                                            4
memorandum submitted after the plea hearing, the state instead argued that the district

court should impose the presumptive guidelines sentence, not a gross misdemeanor

sentence, because “the nature of her offense is more, not less serious, than the typical

charge of [f]inancial [e]xploitation of a [v]ulnerable [adult].” The state opposed a stay of

imposition, pointing to Sargent’s alleged history of similar financial misconduct, the

lengthy time period involved in this offense, Sargent’s abuse of her fiduciary position,

and the fact that her financial exploitation of decedent “involved many, many

transactions [and] a sum well over the statutory minimum of $35,000.” The state argued

that Sargent’s offense constituted a “major economic offense” and that gross-

misdemeanor sentencing was not appropriate.

       A sentencing hearing was held in April 2014. The prosecutor argued for the

guidelines sentence.    In responding to Sargent’s request for a gross misdemeanor

sentence, the prosecutor noted that “offender characteristics cannot be used under our law

as a basis for that type of departure”, and that the type of departure requested by Sargent

could only be based upon offense characteristics. Sargent made several arguments in

support of her motion for a downward departure: she had accepted responsibility for her

offense, she was amenable to probation, she had no prior criminal record, she was

significantly involved in her community, and she was elderly and in poor health. Sargent

also argued that, with a felony conviction on her record, “she [would] lose her job on the

[Maple Grove City Council],” she would lose her sales job, and she would lose her


that there were no substantive revisions to the applicable guidelines during the entire
period of her offense.

                                             5
housing. Sargent noted that financial exploitation was not a crime of violence, but was a

property crime. She also emphasized that she did “a lot of things for [decedent] that most

people wouldn’t do for their parents, . . . feeding him, taking him to all his appointments,

. . . [and] showering and cleaning him.” Finally, Sargent noted that she planned to object

to the anticipated amount of restitution, which was significantly higher than the statutory

minimum of $35,000. She argued that the actual “extent of the financial exploitation,”

determined at a restitution hearing, would “weigh in on the seriousness” of the offense.

       Before pronouncing its sentence, the district court acknowledged that, if it

imposed a felony sentence, then Sargent might lose her city council job, which would

impede her ability to pay restitution. Ultimately, the district court imposed a gross

misdemeanor sentence of 365 days, with a stayed execution of two years.2 The district

court seemed to base the downward departure on Sargent’s ability to pay restitution, her

lack of a criminal record, and her amenability to probation. It stated that the sentence

“constitutes what I see as a dispositional departure, while it’s simply durational[.] The

. . . specific reason[] for the departure [is] my finding of amenability to probation.” On

the departure report, the district court indicated that Sargent had received a dispositional

departure and checked only one box in support of the departure: “Amenable to

probation.”   The district court ordered Sargent to pay restitution of $107,348 to

decedent’s estate, $12,918.84 to her brother (for the mortgage payments he had already


2
  The district court orally imposed a probationary period of five years, but later corrected
it to two years, consistent with a gross misdemeanor sentence. See Minn. Stat. § 609.135,
subd. 2(c) (2010). Because we reverse and remand on other grounds, we do not need to
address the state’s argument that the district court’s oral sentence was illegal.

                                             6
made), and $587.22 per month (for future mortgage payments).             According to the

restitution order, Sargent had one year to pay the entire amount of restitution in full. She

entered into a payment agreement, in which she agreed to pay $78 per month. This

appeal followed.

                                     DECISION

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

an abuse of discretion. State v. Peter, 825 N.W.2d 126, 129 (Minn. App. 2012), review

denied (Minn. Feb. 27, 2013). A guidelines sentence is “presumed to be appropriate,”

and the district court “shall” impose it unless there are “identifiable, substantial, and

compelling circumstances” that support a different sentence. Minn. Sent. Guidelines II.D

(2010); see State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (“[A] sentencing court has

no discretion to depart from the sentencing guidelines unless aggravating or mitigating

factors are present.”). Identifiable, substantial, and compelling circumstances “are those

that make the case atypical.” Peter, 825 N.W.2d at 129.

       Sargent pleaded guilty to the felony-level offense of financial exploitation of a

vulnerable adult. The sentencing guidelines provided for a presumptive stayed prison

sentence of 36 months. See Minn. Sent. Guidelines IV–V (2010). This is a felony

sentence. See Minn. Stat. § 609.02, subd. 2 (2010) (“‘Felony’ means a crime for which a

sentence of imprisonment for more than one year may be imposed.”). The district court

sentenced Sargent to 365 days in jail, with a stayed execution of 245 days for a period of

two years. This is a gross misdemeanor sentence. See Minn. Stat. §§ 609.02, subds. 2–4

(2010) (defining a gross misdemeanor as a crime with a sentence between 91 and 365


                                             7
days in local jail), .135, subd. 2(c) (providing that a probationary stay for a gross

misdemeanor “shall be for not more than two years”); see also Minn. Stat § 609.13

(2010) (providing that, if a defendant is convicted of a felony but a gross misdemeanor

sentence is imposed, “the conviction is deemed to be for a . . . gross misdemeanor”).

Because the presumptive sentence was a stayed sentence, the district court

mischaracterized the departure as a downward dispositional departure, both on the record

and in the departure report. In fact, it is a downward durational departure because the

duration of Sargent’s sentence was reduced by two-thirds, while the disposition of a

stayed sentence was unchanged. See State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App.

1994) (holding that a year-long sentence for an offense that carried a presumptive

sentence of a year and a day is a downward durational departure), review denied (Minn.

Oct. 27, 1994).

      In 1985, the Minnesota Supreme Court prospectively adopted the following

general rules governing when a district court’s sentencing departure may be affirmed or

reversed:

             1.     If no reasons for departure are stated on the record at
                    the time of sentencing, no departure will be allowed.
             2.     If reasons supporting the departure are stated, [the
                    reviewing] court will examine the record to determine
                    if the reasons given justify the departure.
             3.     If the reasons given justify the departure, the departure
                    will be allowed.
             4.     If the reasons given are improper or inadequate, but
                    there is sufficient evidence in the record to justify [the]
                    departure, the departure will be affirmed.
             5.     If the reasons given are improper or inadequate and
                    there is insufficient evidence of record to justify the
                    departure, the departure will be reversed.


                                             8
Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

       Here, the district court gave reasons for its departure, both on the record and in the

departure report. At the sentencing hearing, the district court cited three offender-related

factors to justify the downward departure: facilitating Sargent’s ability to pay restitution

by ensuring that she could maintain her city council position, her lack of a criminal

record, and her amenability to probation. The district court also stated, “The . . . specific

reason[] for the departure [is] my finding of amenability to probation.” On the departure

report, the district court checked only one box as the reason for its departure: “Amenable

to probation.” The district court did not check the boxes, “Crime less onerous than

usual,” “Major economic offense,” or “Shows remorse/accepts responsibility.”

       While offender-related factors such as those cited by the district court may support

a dispositional departure, “[c]aselaw is settled that offender-related factors do not support

durational departures.”    Peter, 825 N.W.2d at 130.        Calling a durational departure

“dispositional” cannot overcome “this limitation.” Id. Instead, “[r]equests for durational

departures require the district court to consider whether the conduct involved in the

offense of conviction was significantly more or less serious than the typical conduct for

that crime.” Id. In other words, a district court must consider only offense-related

factors, rather than offender-related factors, when deciding a request for a durational

departure. Here, the district court erred by basing the downward durational departure

solely on offender-related factors, rather than offense-related factors.




                                              9
       In fact, we note that all of the district court’s stated reasons for the departure are

improper or inadequate even for a dispositional departure. First, “ensur[ing] payment of

restitution” is not a valid reason for a departure. State v. Vahabi, 529 N.W.2d 359, 361

(Minn. App. 1995); see State v. Staten, 390 N.W.2d 914, 916 (Minn. App. 1986) (holding

that employment factors should not be used as reasons for departure); see also Minn.

Sent. Guidelines cmt. II.D.101 (2010) (stating that potential impact on employment

cannot support a departure from a guidelines sentence because employment is “highly

correlated with sex, race, or income levels”). We also note that, by imposing a gross

misdemeanor sentence with a probationary period of two years, and signing a restitution

order that required Sargent to pay restitution of only $78 per month, the district court

sabotaged its own goal of ensuring Sargent’s payment of restitution in an amount

exceeding $120,000.

       Second, a defendant’s lack of a criminal record is irrelevant to a departure because

that fact is already taken into account in determining the guidelines sentence. Bauerly,

520 N.W.2d at 762; see Minn. Sent. Guidelines IV. Sargent’s criminal history score of

zero is what made this a presumptively stayed sentence in the first place. Third, the

Minnesota Supreme Court has “never said that merely being amenable to probation—as

opposed to being particularly amenable to probation—can justify staying a

presumptively executed sentence.” State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014).

“By requiring a defendant to be particularly amenable to probation, . . . we ensure that

the defendant’s amenability to probation distinguishes the defendant from most others

and truly presents the substantial . . . and compelling circumstances that are necessary to


                                             10
justify a departure.” Id. at 309 (quotation omitted). There was no finding by the district

court that Sargent was particularly amenable to probation and that such amenability

constituted a substantial and compelling circumstance justifying the departure.

      “If the reasons given are improper or inadequate, but there is sufficient evidence in

the record to justify [the] departure, the departure will be affirmed.” Williams, 361

N.W.2d at 844. We will affirm the district court’s downward durational departure only if

there is sufficient evidence in the record demonstrating that Sargent’s conduct in

committing her offense “was significantly . . . less serious than the typical conduct for

that crime.” See Peter, 825 N.W.2d at 130.

      At the sentencing hearing, Sargent made several arguments on behalf of her

requested downward departure, a self-described “laundry list” of offender-related factors:

             1.      acceptance of responsibility;
             2.      amenability to probation;
             3.      lack of a criminal record;
             4.      significant community involvement;
             5.      “because of this felony she will lose her job on the
                     council,” she will lose her sales job, and she will lose
                     her housing;
             6.      old age; and
             7.      poor health.

None of these offender-related factors justify the district court’s downward durational

departure. See id.

      On appeal, Sargent also argues that she is “extremely remorseful for her actions”

and that, under Bauerly, remorse coupled with other factors can sometimes support a

downward durational departure. “As a general rule, a defendant’s remorse bears only on

a decision whether or not to depart dispositionally, not on a decision to depart


                                             11
durationally . . . .” State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). “However, there

may be cases in which the defendant’s lack of remorse 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). In other words, remorse or lack of remorse is only relevant to a durational

departure to the extent it sheds light on the seriousness of the defendant’s conduct in

committing the crime. See Bauerly, 520 N.W.2d at 762–63 (affirming a “minimal”

downward durational departure based on the defendant’s remorse and the fact that the

defendant’s theft offense was “significantly less serious than the typical offense”

(quotation omitted)).

       Sargent’s argument fails for four reasons.       First, the district court did not

specifically find—either at the sentencing hearing or in the departure report—that

Sargent showed remorse. Second, there is no indication that Sargent’s alleged remorse

relates back to the severity of her offense. We fail to see how her alleged remorse at the

time of sentencing—after she had been charged and had pleaded guilty—renders her

conduct at the time of the offense any less serious. Third, this court has never held that

remorse alone is sufficient to support a downward durational departure, see id., and

Sargent has not demonstrated that any other substantial and compelling factors justify the

departure. Fourth, unlike in Bauerly, the district court’s downward durational departure

in this case could hardly be called “minimal.” See id. at 763.

       While Sargent’s arguments at the sentencing hearing focused mostly on offender-

related factors, she did touch on offense-related factors. Her arguments are unpersuasive,


                                            12
however, because nothing in the record indicates that her conduct was significantly less

serious than the typical conduct involved in the felony-level offense of financial

exploitation of a vulnerable adult. First, the nature of the offense as a property crime says

nothing about the seriousness of Sargent’s conduct because every crime of this type is a

property crime.    Next, Sargent’s argument that the extent of her personal care and

assistance to her father should somehow mitigate the gravity of her lengthy and well-

planned financial exploitation rings hollow. Nonetheless, she repeats this same argument

on appeal and expands upon it:

              It is not disputed that [Sargent] was the sole caregiver for her
              ailing father during the final year of his life and that she had
              to put her life on hold for him, which made it very difficult
              for her to continue in her real estate career. Additionally,
              [Sargent] acknowledged that she felt entitled to some of the
              monies as compensation for her time in caring for him, and
              she also contended that her father did give permission to her
              use of some of the monies even though she did not have any
              proof.

These rationales simply do not mitigate Sargent’s culpability. As her father’s live-in

caregiver, she was contractually entitled to $2,000 per month for her care, and she

received this money. She was entitled to nothing more.

       Finally, Sargent points to the extent of the restitution in this case, and she is

correct that the amount of loss is relevant to the seriousness of her offense. See id. at 763

(noting that, in a felony-theft case, “[t]he value of the property [the defendant] stole is a

relevant factor to consider in a durational departure”). However, in this case, the district

court ordered restitution in an amount over $120,000, in addition to the monthly

mortgage payment. This represents almost three-and-a-half times the minimum offense


                                             13
amount of $35,000. See Minn. Stat. § 609.52, subd. 3(1). Given the substantial amount

of restitution ordered in this case, we cannot conclude that Sargent’s conduct was

significantly less serious than the typical conduct for this offense, as is required for a

downward durational departure. See Peter, 825 N.W.2d at 130.

       In fact, throughout this case, the state has argued that Sargent’s conduct was more

serious than in the typical case.    The state summarizes these arguments on appeal:

“[Sargent] exploited her father’s vulnerability and used a position of trust to steal money

from his estate for her personal gain. . . . [H]er crime was not a momentary impulse. It

was a well-planned, deliberate assault on her father’s financial legacy.” The state also

argues that a gross misdemeanor sentence “is in no way proportionate to the severity of

[Sargent’s] crime” because she stole over 100 times the statutory limit for a gross

misdemeanor offense. See Minn. Stat. § 609.52, subd. 3(4) (defining gross misdemeanor

theft as stealing between $501 and $1000). We find the state’s arguments persuasive.

Sargent’s argument that “[t]he district court’s sentence severely punishes [her] for her

actions” is unpersuasive.

       The district court strongly suggested that it found Sargent’s conduct was not

significantly less serious for this type of crime. At the sentencing hearing, the district

court acknowledged the seriousness of her conduct: “If I [order a felony sentence], I’d be

accomplishing one goal, which is an accounting of the type of offense that was




                                            14
perpetrated here, an offense that took a long time to commit, an offense that required

scienter, a mental disposition, a planning, an orchestration.”3 (Emphasis added.)

       The record demonstrates that Sargent’s conduct was not significantly less serious

than the conduct involved in the typical felony-level offense of financial exploitation of a

vulnerable adult.     Because there are no identifiable, substantial, and compelling

circumstances that justify a downward durational departure in this case, the district court

abused its discretion in granting the departure. We reverse Sargent’s gross misdemeanor

sentence and remand for resentencing consistent with this decision.4

       Reversed and remanded.




3
  Despite this acknowledgement, the district court seemed very concerned about the
potential job ramifications of ordering a felony sentence. After pronouncing the gross
misdemeanor sentence, the district court acknowledged that allowing Sargent to keep her
job on the city council, which would facilitate her ability to pay restitution, was part of its
sentencing rationale. The state argues on appeal that, while “[t]he district court’s
decision was likely well intended,” the downward departure “creates the impression that
public officials who engage in criminal behavior get special treatment in the justice
system.” We agree with the state’s concern and are mindful of the need for the
appearance of fairness in the criminal justice system. Cf. Offutt v. United States, 348
U.S. 11, 14, 75 S. Ct. 11, 13 (1954) (“[J]ustice must satisfy the appearance of justice.”).
4
  We note that, if on remand the district court orders a stay of imposition, this would not
be a sentencing departure. See Minn. Sent. Guidelines cmt. III.A.101 (2010).

                                              15
