State v. Frost, 81-422.

• Citation: 306 NW 2d 803
• Decision Date: 11 June 1981
• Docket Number: No. 81-422.,81-422.
• Parties: STATE of Minnesota, Respondent, v. Al G. FROST, Jr., Appellant.
• Court: Supreme Court of Minnesota (US)

306 N.W.2d 803 (1981)

STATE of Minnesota, Respondent, v. Al G. FROST, Jr., Appellant.

No. 81-422.

Supreme Court of Minnesota.

June 11, 1981.

Friedberg & Peterson, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., and Vernon E. Bergstrom, Chief, Appellate Section, Asst. County Atty., Minneapolis, for respondent.

Considered and decided by the court en banc without oral argument.

SHERAN, Chief Justice.

This is an appeal from a number of concurrent sentences for convictions of five charges of theft by swindle over $150 committed by defendant before the Sentencing Guidelines became effective. The trial court, proceeding under the Guidelines even though technically not required to do so, departed from the presumptive sentence — which would have been to place defendant, who is a "first offender," on probation — and sentenced him to five concurrent 40-month prison terms. Defendant, who seeks a remand for resentencing, contends that in deciding to depart, the trial court erred in relying in part upon the factual basis underlying two charges of which defendant was acquitted in his trial. We affirm.

Defendant was appointed admissions and financial aid officer at Minneapolis Community College in July 1975. In January 1980 someone reported suspected irregularities in the financial aid program at M.C.C. to the legislative auditor, and the resultant investigation disclosed evidence of large-scale fraud ($104,463 in improper payments) in the program.

The investigation showed that several students received aid to which they were not entitled and then made kickbacks to people in the aid office. Other students were invited to apply for aid under fictitious names and they then kicked back a large part of the money they received. Forgery of the names of at least two real students was also involved.

Defendant was charged with seven separate felony complaints: (1) theft by swindle over $150; (2) theft by swindle over $150; (3) theft by swindle over $150 and aggravated forgery uttering; (4) theft by swindle over $150 and aggravated forgery uttering; (5) theft by swindle over $150 and misconduct by public employee; (6) theft by swindle over $2,500; and (7) theft by swindle over $2,500. At his trial on all these charges, defendant was found guilty of the first five complaints and not guilty of the last two.

At the sentencing hearing the prosecutor argued that the proper basis for departure was that this was a major economic crime. Specifically, section II.D.2.b. of the Guidelines provides that the fact that an offense was a major economic crime is an aggravating factor if two or more of the following circumstances were present:

(a) the offense involved multiple victims or multiple incidents per victim.

(b) the offense involved an attempted or actual monetary loss substantially greater than the usual offense or substantially greater than the minimum loss specified in the statute.

(c) the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time;

(d) the defendant used his or her position or status to facilitate the commission of the offense, including positions of trust, confidence, or fiduciary relationships; or

(e) the defendant has been involved in other conduct similar to the current offense as evidenced by the findings of civil or administrative law proceedings or the imposition of professional sanctions.

The prosecutor, in seeking a sentence of 72 months in prison, argued that four of these factors — (a), (b), (c) and (d) — were present in this case. In arguing that there were multiple incidents, the prosecutor urged the court to consider the testimony underlying the charges of which defendant was acquitted because even though the state had not shown defendant's guilt of those charges beyond a reasonable doubt, it had shown defendant's involvement in those crimes by a preponderance of the evidence. In arguing that the monetary loss was substantial, the prosecutor pointed to the fact that at least $104,463 in losses were involved. In arguing that factor (c) was present, the prosecutor pointed to the evidence which the trial court had heard bearing on that, including evidence that defendant began the conduct shortly after he began his job. Finally, the prosecutor pointed to the fact that defendant used his position of trust to facilitate commission of the crime.

Defense counsel conceded that factors (c) and (d) were present but argued that factors (a) and (b), along with factor (e), were not present.

The trial court, in departing and sentencing defendant to 40 months in prison, stated that it believed aggravating factors were present and that a primary one was defendant's abuse of a position of trust. Most relevant to the matter, which is the subject of this appeal, are the following comments:

I am considering — and I\'m stating for the record that I am considering — that without your complicity, the other thefts which have taken place and which have resulted in the three guilty pleas to date by Hill,

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