                        This opinion will be unpublished and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
                                   A14-1372

                                 State of Minnesota,
                                      Appellant,

                                         vs.

                              Bradley James Schnickel,
                                    Respondent.

                                Filed May 11, 2015
                              Reversed and remanded
                                Rodenberg, Judge

                             Anoka County District Court
               File Nos. 02-CR-13-948, 02-CR-13-2653, 02-CR-13-3560

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

Anthony C. Palumbo, Anoka County Attorney, Robert D. Goodell, Assistant County
Attorney, Anoka, Minnesota (for appellant)

Frederic K. Bruno, Samantha Foertsch, Bruno Law, Minneapolis, Minnesota (for
respondent)

      Considered and decided by Rodenberg, Presiding Judge; Ross, Judge; and

Klaphake, Judge.*




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                        UNPUBLISHED OPINION

RODENBERG, Judge

       Appellant State of Minnesota challenges respondent Bradley James Schnickel’s

sentence, a downward durational departure from the Minnesota Sentencing Guidelines,

arguing that the departure was based on impermissible offender-related factors. We

reverse and remand.

                                         FACTS

       Starting in 2010 and continuing until 2013, respondent Bradley James Schnickel

used an alias to communicate with minor girls online. Respondent, a police officer in his

early thirties at the time of the offenses, represented himself online as a male bartender,

between 19 and 23 years old, who was sexually interested in younger girls. A police

investigation resulted in the seizure of some 9,000 pages of electronic evidence of online

conversations between respondent and hundreds of girls between 12 and 16 years old

who informed him that they were in junior high or high school.

       Respondent was charged in Anoka County by three separate complaints with 20

criminal counts including criminal sexual conduct, attempted criminal sexual conduct,

engaging in electronic communication involving sexual conduct with minors, and

furnishing alcohol to a minor. As part of a plea agreement, respondent pleaded guilty to

five criminal felony counts and the remaining 15 counts were dismissed. At his plea




                                            2
hearing, respondent testified to a factual basis supporting the five counts to which he was

pleading guilty, each count relating to a different victim.1

       Respondent pleaded guilty to attempted third-degree criminal sexual conduct

concerning Child L.2 Respondent met Child L in 2010 when she was in-line skating in

Anoka County.       Respondent stopped his car and engaged her in conversation.

Respondent told Child L that she was attractive to him, and they began communicating

over the internet through social media sites. Respondent and Child L met in person

several times when she was 15. They eventually had sexual intercourse when she was

16. Respondent sent Child L pictures of his genitals, described sexual things he wanted

to do to her, and asked her to perform sexual acts on him. Respondent agreed that this

was “grooming or beginning a process of trying to have sexual contact” with Child L.

       Respondent pleaded guilty to third-degree criminal sexual conduct concerning

Child A. Respondent began communicating with Child A online, telling her “who [he]

thought [they] knew in common.” Respondent told Child A that she was “hot” and

pursued a sexual relationship with her. Eventually, respondent and Child A met in

person. Respondent instructed Child A to sneak out of her house. He picked her up in

his car, provided her with alcohol, and drove her to a park in Anoka County. After Child

A consumed the alcohol, respondent began kissing “and having sexual contact” with her.

Respondent and Child A then had sexual intercourse in the front seat of respondent’s car.


1
  Appellant was also charged in Hennepin County for similar conduct and was sentenced
for those crimes prior to his sentencing in Anoka County.
2
  The child-victim designations are carried forward on appeal as they were designated in
the district court.

                                              3
Respondent also later asked Child A if she would have sex with him again when she was

not intoxicated. Child A was 14 years old.

       Respondent pleaded guilty to attempted second-degree criminal sexual conduct

concerning Child B.         Respondent began communicating with Child B online.

Respondent admitted using a “grooming technique” on Child B by telling her how

attractive she was and by stating that he could not believe that she did not have a

boyfriend. Respondent told Child B that having an older boyfriend had benefits. He told

her that he was “particularly attracted to girls about her age” and that he found the size of

her buttocks and breasts especially attractive. Respondent told Child B that he wanted to

have sexual intercourse with her, that he wanted her to touch him and give him oral sex,

and that he wanted to sexually touch her. Respondent agreed that he was in a position of

authority over Child B during this time “based on [his] age” and his status as a police

officer. Respondent communicated with Child B for “many, many months,” and he

repeatedly tried to meet Child B. Respondent and Child B met once in October of 2012.

Child B snuck out of her apartment complex and met respondent in his car. Once in the

car, respondent exposed his erect penis, took Child B’s hand and placed it on his penis.

Child B was 13 years old.

       Respondent pleaded guilty to engaging in electronic communication relating or

describing sexual conduct with a child concerning Child C.              Respondent began

communicating with Child C by connecting with her through mutual “friends” online.

Respondent told Child C that she was “hot,” that his last girlfriends were about her age,

and that he was particularly attracted to girls her age. Respondent expressed his sexual


                                             4
attraction to Child C and electronically sent her pictures of his genitals. He asked her to

send him nude pictures of her.3 Respondent also discussed his desire to perform sexual

acts with Child C in online chats, including sexual intercourse and oral sex. Child C was

13 years old when respondent first began communicating with her.

       Respondent pleaded guilty to engaging in electronic communication relating to or

describing sexual conduct with a child concerning Child D.              Respondent began

communicating with Child D online through mutual Facebook contacts. Respondent told

Child D that he liked girls her age, and he communicated the sexual acts he wanted to do

with Child D, including sexual intercourse. Child D was 14 years old.

       The plea agreement allowed respondent to seek a dispositional and/or durational

departure with the understanding that the state would seek commitment to prison for a

maximum of 142 months. The state also agreed not to seek consecutive sentences.

Respondent sought both dispositional and durational departures from the district court.

At the sentencing hearing, respondent called three witnesses, and both he and his wife

read statements to the district court. The state called no witnesses, but asked the pre-

sentence investigation report (PSI) author to clarify her recommendations and read victim

impact statements from one victim and from another victim’s parents.

       The district court denied respondent’s motion for a dispositional departure but

granted his motion for a durational departure, sentencing respondent to 30 months’

imprisonment to run concurrently for each count, plus a lifetime conditional-release

3
  Respondent had particular difficulty remembering specific statements he made to Child
C, admitting “I don’t remember specifics. Like [the prosecutor] said, there were a lot of
them.”

                                            5
term.4 The district court stated that the sentences requested by the state and respondent

were “in stark contrast to each other, and neither satisfies my sense of what is fair and

what is just.” In denying respondent’s motion for a dispositional departure, the district

court explained that a dispositional departure “would be insufficient because it would

minimize the seriousness of these offenses.” The district court rejected the state’s 142-

month sentence request as “insufficient because [it] does not take into account the work

that this defendant has done to try to control these destructive urges and behaviors.”

       The district court explained its reasoning for departing durationally by stating:

“I’ve given you a durational departure from the Sentencing Guidelines because I do

believe that you have demonstrated some amenability to treatment, and so for that reason

I’m willing not to send you to prison for a hundred forty-two months.” In the later-filed

departure report, the district court identified “amenable to probation,” “amenable to

treatment: sex offender” and “shows remorse/accepts responsibility” as its reasons for

departure. These factors are all listed under the departure form’s heading “Related to

Individual Offender.” There are no other factors indicated on the form as being the basis

of the district court’s durational departure.

       This appeal by the state followed.

                                      DECISION

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

an abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). This

4
 This sentence constitutes a durational departure for four of the five counts. The parties
agree that the count concerning Child L, attempted third-degree criminal sexual conduct
with a criminal history score of two, has a presumptive sentence of 30 months.

                                                6
reviewing standard, “while deferential, is not a limitless grant of power to the trial court.”

State v. Soto, 855 N.W.2d 303, 312 (Minn. 2014) (quotation omitted). A district court

abuses its discretion when basing its decision on “an erroneous view of the law.” Riley v.

State, 792 N.W.2d 831, 833 (Minn. 2011).

       The district court may depart from the sentencing guidelines only if there are

substantial and compelling reasons to support departure. Minn. Sent. Guidelines 2.D

(2013). Substantial and compelling reasons are those that make a case atypical. Taylor v.

State, 670 N.W.2d 584, 587 (Minn. 2003). We may affirm a departure even if the

reasons given are “improper or inadequate” when departure is sufficiently supported by

evidence in the record. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985); see also

State v. Carter, 424 N.W.2d 821, 823 (Minn. App. 1988) (stating that we can examine the

record to determine whether the evidence supports departure even when the reasons

provided do not justify departure).

       The primary issue in this appeal is whether the district court’s durational departure

is supported by proper factors.       Offender-related factors may justify a dispositional

departure, but may not be used to support a durational departure. State v. Chaklos, 528

N.W.2d 225, 228 (Minn. 1995).           Offense-related factors may support a durational

departure. Id. In considering a motion for a durational departure, a district court must

examine “whether the defendant’s conduct was significantly more or less serious than

that typically involved in the commission of the crime in question.” State v. Cox, 343

N.W.2d 641, 643 (Minn. 1984).




                                              7
       Here, the district court found that respondent “demonstrated some amenability to

treatment” and identified this reason as supporting a durational departure. In its departure

report, the district court found that respondent’s amenability to probation and

remorse/acceptance of responsibility also supported the durational departure.

       A defendant’s amenability to treatment and amenability to probation are offender-

related factors that the district court “must not focus on” to support a durational

departure. State v. Behl, 573 N.W.2d 711, 713 (Minn. App. 1998) review denied (Minn.

Mar. 19, 1998); see also Chaklos, 528 N.W.2d at 228, State v. Peter, 825 N.W.2d 126,

130 (Minn. App. 2012) (“Caselaw is settled that offender-related factors do not support

durational departures.”). Because the law is clear that offender-related factors cannot

support a durational departure, the district court erred in sentencing respondent to a

downward durational departure on these grounds.

       The district court also determined that respondent “shows remorse/accepts

responsibility” and that this supported respondent’s 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 durationally.” State v. Back, 341 N.W.2d 273,

275 (Minn. 1983).

       Respondent argues that remorse/acceptance of responsibility can be appropriately

considered an offense-related factor, citing State v. Bauerly, 520 N.W.2d 760, 762 (Minn.

App. 1994), review denied (Minn. Oct. 27, 1994). In Bauerly, we quoted State v. McGee,

347 N.W.2d 802, 806 n.1 (Minn. 1984), stating that “lack of remorse could relate back

and be considered as evidence bearing on a determination of the cruelty or seriousness of


                                             8
the conduct on which the conviction is based,” 520 N.W.2d at 762.            Bauerly was

convicted of a property offense, and the district court considered her remorse, among

other factors, in granting her motion for a downward dispositional departure. Id. at 761-

62.   We concluded that remorse was “properly considered” by the district court in

“relating back to the seriousness of her offense, and helping to support the downward

durational departure.” Id. at 763 (emphasis added).

       Bauerly does not stand for the proposition that a defendant’s remorse or

acceptance of responsibility, standing alone, supports a durational departure.         The

durational departure in Bauerly was supported by another offense-related factor and her

remorse was specifically considered in the context of her offense. Id. Assuming, without

deciding, that the record supported the district court’s finding that respondent

demonstrated remorse and accepted responsibility, there is no authority for the

proposition that remorse or acceptance of responsibility, standing alone, can justify a

downward durational departure.5

       Respondent proffers several other factors as supporting a downward durational

departure. He argues that his “mental impairment” at the time of the offenses supports a

downward durational departure. See Minn. Sent. Guidelines, 2.D.3.a(3) (2013) (“The

offender, because of physical or mental impairment, lacked substantial capacity for

5
  Bauerly indicates that remorse/acceptance of responsibility may be relevant as it relates
“back to the seriousness of [the] offense.” 520 N.W.2d at 763. There is evidence in the
record both supporting and negating respondent’s remorse and acceptance of
responsibility. For example, the PSI indicates that respondent “admitted he was driven
[to commit the crimes] by his own needs and desires and gave no thought to the victims”
when the offenses were committed and that “his main focus appears to be on what he has
lost due to his offending behavior.”

                                            9
judgment when the offense was committed”). First, the district court did not find a

mental impairment and respondent cites no case law to support his argument that his

“compulsive” behavior was a mental impairment as defined by the guidelines.             See

Ganguli v. University of Minnesota, 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (stating

that this court declines to address allegations unsupported by legal analysis or citation).

Second, respondent relies in part on the PSI, which includes information from

respondent’s counselor.     The PSI states that respondent “suffers from significant

insecurity, stemming from his childhood, which led him to believe minor females were

safer to approach.”    These, among other factors, “coupled with [respondent’s] self-

centeredness [and] attitude of self-entitlement,” were “important factors in his offending

cycle.”   Respondent fails to identify any record evidence connecting his predatory

behavior to a lack of capacity or a diagnosed mental impairment. The district court did

not find this argument convincing, nor do we.

       Respondent also argues that the absence of force, weapons, or physical injuries to

the victims is a mitigating factor. Respondent did not present this argument to the district

court and we therefore do not consider it. Roby v. State, 547 N.W.2d 354, 357 (Minn.

1996) (“This court generally will not decide issues which were not raised before the

district court”).

       Lastly, respondent argues that downward durational departures are not atypical

because a 2012 report from the Minnesota Sentencing Guidelines Commission identifies

19% of individuals sentenced for criminal sexual conduct offenses in 2012 as having

received downward durational departures. Assuming, without deciding, that the report


                                            10
provides accurate information that downward durational departures were granted in 19%

of cases during 2012, that information is irrelevant to the legal issues on appeal. The

report only identifies the frequency of actual durational departures. It says nothing about

offense-related factors specific to respondent’s offenses. See Soto, 855 N.W.2d at 308

(stating that sentences outside of the presumptive range must “distinguish a case and

overcome the presumption in favor of the guidelines sentence”). As discussed above, the

district court found no substantial and compelling offense-related factors here.

       Because we conclude that the district court improperly relied exclusively on

offender-related factors to support its downward durational departure, and respondent’s

alternative arguments are unpersuasive, we reverse and remand for resentencing.

       Reversed and remanded.




                                            11
