STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0242
State of Minnesota,
Appellant,
vs.
Jacob Miles Solberg,
Respondent.
Filed August 24, 2015
Reversed and remanded
Hudson, Judge
Polk County District Court
File No. 60-CR-13-1128
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Gregory Widseth, Polk County Attorney, Scott Buhler, Assistant County Attorney,
Crookston, Minnesota (for appellant)
Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for respondent)
Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Willis,
Judge.
SYLLABUS
Remorse that does not relate to the seriousness of the crime, standing alone, is an
insufficient basis to support a downward durational departure.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
OPINION
HUDSON, Judge
In this sentencing challenge, the state argues that the district court abused its
discretion when it granted respondent a downward durational departure based on factors
typically used to justify a dispositional departure. Because the district court improperly
based the durational departure on offender-related factors, instead of the required offense-
related factors, we reverse and remand.
FACTS
In June 2013, B.W. went to a small-town street dance. In the early morning hours,
B.W. connected with respondent Jacob Miles Solberg, a coworker, who invited her to his
house, ostensibly to spend time with him and some of his friends. Respondent appeared
intoxicated to B.W. at the time of the invitation. He drove B.W. to his rural home where
no others were present. Respondent cooked food and later began rubbing B.W.’s back
and legs while they were seated on the living-room couch. She told him to stop. B.W.
testified that respondent “beg[ged]” B.W. to have sex with him, and she refused.
Respondent subsequently pushed B.W. onto the couch and held her down, despite her
telling “him to stop and get off [her]” multiple times. Respondent penetrated B.W.
vaginally and anally. He then took her back to her vehicle. B.W. reported the rape to law
enforcement and underwent a sexual-assault examination.
B.W. confronted respondent the evening after the assault by text message.
Respondent asked B.W. via text what she was talking about and claimed he did not
remember anything from the previous night because of his alcohol consumption.
2
Respondent was charged with third-degree criminal sexual conduct. During the
jury trial, after the testimony of B.W., two Polk County deputy sheriffs, an emergency
department nurse, and an investigator at the sheriff’s office, respondent entered a
Norgaard guilty plea.1 In exchange, the state agreed to recommend limiting the sentence
to the bottom of the presumptive guidelines sentencing range, with respondent being free
to argue for a departure and any other conditions. Respondent admitted to having
intercourse with B.W., but stated that due to intoxication he could not recall the exact
details of the encounter.
At sentencing, respondent moved for a downward durational and/or dispositional
departure, arguing that he was particularly amenable to probation, he was remorseful, and
his offense was less serious than the typical third-degree criminal-sexual-conduct case.
The district court granted respondent a downward durational departure because of his
age, shown remorse, cooperation with law enforcement, and limited criminal history.
The low end of the presumptive sentencing guidelines range was 53 months executed
with a ten-year conditional-release period; the district court sentenced respondent to an
executed 30-month sentence with a ten-year conditional-release period.2 The state
appeals.
1
See Williams v. State, 760 N.W.2d 8, 12 (Minn. App. 2009) (“A plea constitutes a
Norgaard plea if the defendant asserts an absence of memory on the essential elements of
the offense but pleads guilty because the record establishes, and the defendant reasonably
believes, that the state has sufficient evidence to obtain a conviction.”), review denied
(Minn. Apr. 21, 2009).
2
The plea agreement also resolved a first-degree criminal-damage-to-property charge, a
gross-misdemeanor DWI, and a misdemeanor-DWI probation violation.
3
ISSUE
Did the district court err when it granted respondent a downward durational
departure based on respondent’s remorse?
ANALYSIS
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. The
district court must impose the presumptive sentence unless there are “substantial and
compelling circumstances” that warrant departure. State v. Kindem, 313 N.W.2d 6, 7
(Minn. 1981). The Minnesota Sentencing Guidelines set forth a nonexclusive list of
aggravating and mitigating factors used to justify departures. Minn. Sent. Guidelines
2.D.3.
We generally review a sentencing-guidelines departure for an abuse of discretion.
State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003). But the question of whether the
court relied on proper reasons to depart is a question of law. Dillon v. State, 781 N.W.2d
588, 595 (Minn. App. 2010), review denied (Minn. July 20, 2010).
There are two types of departures: dispositional and durational. Minn. Sent.
Guidelines 2.D.1.a. The district court may consider only offense-related factors—and not
offender-related factors—when granting a downward durational departure. State v.
Peter, 825 N.W.2d 126, 130 (Minn. App. 2012), review denied (Minn. Feb. 27, 2013).
Essentially, when considering whether to grant a downward durational departure, the
court determines whether the offense was significantly less serious than the typical
conduct involved in that offense. Id.
4
Here, the district court improperly relied on several offender-related factors in
granting respondent a downward durational departure, including his age and cooperation
with law enforcement. See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (concluding
that age and cooperation relate to whether a defendant is amenable to probation, a
dispositional-departure consideration). The district court also noted respondent’s limited
criminal history. But his criminal history was already considered in determining the
presumptive sentence. See Minn. Sent. Guidelines 1.A (stating that the guidelines are
proportional to the severity of the offense and the offender’s criminal history). In
addition, the district court specifically rejected respondent’s argument that the conduct
underlying his conviction was less serious than the typical offense of criminal sexual
conduct in the third degree. On the record, the district court found that no one could say
that this is “a less culpable kind of crime than the normal crime.”
Even when the district court’s given reasons are “improper or inadequate,” an
appellate court may affirm a durational departure when the record contains sufficient,
appropriate reasons that justify the departure. Williams v. State, 361 N.W.2d 840, 844
(Minn. 1985). Respondent asserts that his remorse was a proper, sufficient factor to
justify a downward durational departure.3 Generally, “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). But remorse can be
3
Respondent argues that a court need rely only on a single factor to grant a departure.
But he cites caselaw holding that a single aggravating factor may justify an upward
departure. See Dillon v. State, 781 N.W.2d at 599. He does not cite, nor could we find,
any caselaw holding that a single factor is sufficient to justify a downward durational
departure.
5
considered in durational departures where remorse, or the lack thereof, bears on the
seriousness of the conduct of the underlying offense. State v. Bauerly, 520 N.W.2d 760,
762 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994); see also State v. McGee,
347 N.W.2d 802, 806 n.1 (Minn. 1984) (“[T]here may be cases in which the defendant’s
lack of remorse could . . . be considered as evidence bearing on a determination of the
cruelty or seriousness of the conduct on which the conviction was based.”).
In Bauerly, the district court granted the defendant a downward durational
departure from her sentence for stealing from her employer. Bauerly, 520 N.W.2d at
762. The district court based its decision partly on the defendant’s remorse and partly on
the fact that the theft “barely exceeded” the felony threshold. Id. The state appealed,
arguing that the district court considered improper factors and that the amount stolen did
not make the offense significantly less serious. Id. This court held that the district
court’s finding that the defendant’s remorse reflected on the seriousness of offense,
coupled with the amount stolen, justified the one-day downward durational departure. Id.
at 763.
Here, there is no indication that respondent’s remorse diminishes the seriousness
of the offense. Although respondent claims that “[h]e was so overcome by remorse that
he agreed to enter into an open guilty plea in the middle of trial,” this assertion is not
fully supported by the record. The victim had previously confronted respondent about
the offense, and he claimed to have no memory of it. Respondent did not enter a plea
until trial was well underway; this was after numerous witnesses had testified and the
district court had ruled on the permissibility of a rebuttal witness. These facts do not
6
support respondent’s claim that he was remorseful once he realized what he had done.
Instead, it seems that he showed remorse once he realized a conviction was likely.
Bauerly is also distinguishable from this matter because the Bauerly court relied
on two factors: the defendant’s remorse and the fact that the amount stolen was
minimally over the felony threshold. Id. In contrast, respondent’s violent sexual assault
clearly satisfied the statutory elements of the felony to which he pleaded guilty. And the
downward departure in Bauerly was one day; here the departure was 23 months.
In sum, respondent has not provided, nor did we find, any authority to support
respondent’s argument that remorse alone can support a downward durational departure
when the purported remorse does not “relate back” to the offense or make his conduct
less serious than the typical offense.
DECISION
The district court improperly relied on offender-related factors to support its
downward durational departure, and respondent’s remorse, which does not diminish the
seriousness of the crime, is an insufficient factor standing alone to support a durational
departure. Therefore, we reverse and remand for resentencing consistent with this
opinion.
Reversed and remanded.
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State of Minnesota v. Jacob Miles Solberg
Combined Opinion