State v. Solberg, A15–0242.

• Decision Date: 27 July 2016
• Docket Number: No. A15–0242.,A15–0242.
• Citation: 882 N.W.2d 618
• Parties: STATE of Minnesota, Respondent, v. Jacob Miles SOLBERG, Appellant.
• Court: Minnesota Supreme Court

882 N.W.2d 618

STATE of Minnesota, Respondent,

v.Jacob Miles SOLBERG, Appellant.

No. A15–0242.

Supreme Court of Minnesota.

July 27, 2016.

Lori Swanson, Minnesota Attorney General, Saint Paul, MN; and Gregory A. Widseth, Polk County Attorney, Scott A. Buhler, Assistant Polk County Attorney, Crookston, MN, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public Defender, Saint Paul, MN, for appellant.

OPINION

CHUTICH

, Justice.

Appellant Jacob Miles Solberg entered a Norgaard plea¹ to third-degree criminal sexual conduct, Minn.Stat. § 609.344, subd. 1(c) (2014)

, claiming that his memory was affected by his state of intoxication when the offense occurred. The district court imposed a downward durational departure from the presumptive sentence, in part because Solberg expressed remorse for his actions. The State appealed, and the court of appeals reversed the district court's decision to impose a downward durational sentencing departure.

Solberg petitioned for review, arguing that a single mitigating factor—here, remorse—is sufficient to support a downward durational sentencing departure. We agree that a single mitigating factor may support a downward durational departure. But Solberg's expressions of remorse did not diminish the seriousness of his offense. Accordingly, we affirm the court of appeals' decision reversing Solberg's sentence.²

I.

In early June 2013, Solberg met the victim, a friend, at a street dance.³ When the victim arrived, Solberg was heavily intoxicated, and he consumed at least two more drinks while at the dance. After about an hour and a half, Solberg told the victim that some of his friends were coming to his home and asked if she would accompany him there. She agreed, and Solberg drove her to his rural home. When they arrived, no one else was present, and they watched television on the living room couch. Solberg started rubbing the victim's back and legs, and she asked him to stop. He kept begging the victim to have sex with him even though she said no many times. When Solberg refused to stop rubbing her body, the victim stood up and asked Solberg to drive her back to her truck.

Solberg instead pushed the victim back onto the couch, put her hands over her head, and held her down. He pulled down her pants and penetrated her while she continued telling him to stop, and she began to cry. Because Solberg was much larger in physical size than the victim,⁴ she was unable to push him off. Solberg told her “it's ok” because “my doctor said I can't have kids” and “[i]t's not cheating if [our significant others] don't find out.” According to the victim, Solberg was still intoxicated when he sexually assaulted her.

The victim reported the assault and underwent a sexual assault examination later that day. Law enforcement contacted Solberg, who gave a recorded statement. Solberg said that his memory was a “blur” because he had been intoxicated at the time of the alleged assault. He recalled having sexual intercourse, but he claimed that the sex was consensual and that he did not remember the victim crying. Solberg admitted that he “might've pressured her into it” but thought that she was playing “hard to get.” He also said, “It wasn't my intention to hurt her like that emotionally. And I know she's probably scared.”

Solberg was charged with third-degree criminal sexual conduct involving the “use[ ] of force or coercion to accomplish [sexual] penetration.” Minn.Stat. § 609.344, subd. 1(c)

. He pleaded not guilty. During a jury trial, the State presented the testimony of the victim, her boyfriend, the nurse who conducted the sexual assault examination, and the police officers involved in the investigation. The State also played recorded statements given by the victim and Solberg during the investigation. After the State finished presenting its case, Solberg entered a Norgaard plea, claiming that (1) he could not admit the elements of the charged offense due to a loss of memory through intoxication and (2) he believed he was likely to be convicted of the crime charged. See

State v. Ecker, 524 N.W.2d 712, 716–17 (Minn.1994) (describing Norgaard pleas).

Under the Minnesota Sentencing Guidelines, the presumptive sentencing range for Solberg's offense is imprisonment for 53 to 74 months.⁵ Minn. Sent. Guidelines 4.B. Under the plea agreement, the State capped its sentencing recommendation at 53 months, the bottom of the presumptive sentencing range. Solberg later moved for a downward dispositional departure or, alternatively, a downward durational departure. He contended that a dispositional departure was justified by his young age, cooperation with law enforcement, low criminal history, and remorse. To demonstrate his remorse, he cited a psychosexual assessment, which reported that Solberg “acknowledged experiencing feelings [of] guilt at a clinically significant level.”⁶ Solberg also expressed remorse at the sentencing hearing, stating, “I know what I've done was wrong and it's been on me every single day. If there was anything I could do to make it better, I would.... I just wish I could go back in time and change what happened. I didn't mean for anything like that to happen.”

The district court declined to impose a dispositional departure from the presumptive sentence of imprisonment, stating that Solberg “should go to prison like the guidelines say.” The district court also concluded that Solberg's voluntary intoxication was not a mitigating factor that can support a sentencing departure. See Minn. Sent. Guidelines 2.D.3.a.(3) (stating that “[t]he voluntary use of intoxicants” is not a factor that can be used to support a departure). But the court concluded that Solberg's young age, family support, cooperation with law enforcement, and remorse provided substantial reasons to depart from the presumptive sentence length. Thus, the court imposed a 30–month executed sentence, a downward durational departure from the presumptive range of 53 to 74 months.

The court of appeals reversed the downward durational departure. State v. Solberg, 869 N.W.2d 66 (Minn.App.2015)

.

First, the court of appeals concluded that all of the factors relied on by the district court, except for remorse, were relevant only to a dispositional departure, not a durational departure. Id. at 69

. Second, the court of appeals held that Solberg's remorse did not support a durational departure because his remorse did “not ‘relate back’ to the offense or make [Solberg's] conduct less serious than the typical offense.” Id. at 70. The court of appeals further concluded that, even if Solberg's remorse were a mitigating factor, existing case law did not allow a downward durational departure based on one mitigating factor alone. See

id. at 69 n. 3, 70. Solberg petitioned for review, contending that his remorse alone is sufficient to support the district court's decision to impose a downward durational sentencing departure.

II.

We review a district court's decision to depart from the presumptive guidelines sentence for an abuse of discretion. Taylor v. State, 670 N.W.2d 584, 588 (Minn.2003)

. A district court abuses its discretion when its reasons for departure are legally impermissible and insufficient evidence in the record justifies the departure. See

State v. Edwards, 774 N.W.2d 596, 601 (Minn.2009). When the district court gives improper or inadequate reasons for a downward departure, we may scrutinize the record to determine whether alternative grounds support the departure. See

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

State v. Jones, 745 N.W.2d 845, 851 (Minn.2008) (stating that a defendant has a right to fact-finding by a jury on aggravating factors that may support an upward departure).

The Minnesota Sentencing Guidelines establish presumptive sentences for felony offenses. Minn.Stat. § 244.09, subd. 5 (2014)

. The sentencing guidelines seek to “maintain uniformity, proportionality, rationality, and predictability in sentencing” of felony crimes. Id. Consequently, departures from the guidelines are discouraged and are intended to apply to a small number of cases. State v. Misquadace, 644 N.W.2d 65, 68 (Minn.2002) ; see also Minn. Sent. Guidelines cmt. 2.D.301. A court may depart from the presumptive sentence only when there are “identifiable, substantial, and compelling circumstances to support a departure.” Minn. Sent. Guidelines 2.D.1.

The Minnesota Sentencing Guidelines define two types of sentencing departures: dispositional and durational. A dispositional departure places the offender in a different setting than that called for by the presumptive guidelines sentence. Id. at 1.B.5.a. For example, a downward dispositional departure occurs when the presumptive guidelines sentence calls for imprisonment but the district court instead stays execution or imposition of the sentence. Id. at 1.B.5.a.(2). A dispositional departure typically focuses on characteristics of the defendant that show whether the defendant is “particularly suitable for individualized treatment in a probationary setting.” State v. Wright, 310 N.W.2d 461, 462 (Minn.1981)

; see also

State v. Trog, 323 N.W.2d 28, 31 (Minn.1982) (citing the “defendant's age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family” as relevant factors that may justify a dispositional departure).

By contrast, a durational departure is a sentence that departs in length from the presumptive guidelines range. Minn. Sent. Guidelines 1.B.5.b. A durational departure must be based on factors that reflect the seriousness of the offense, not the characteristics of the offender. State v. Chaklos,

528 N.W.2d 225, 228 (Minn.1995). A downward durational departure is justified only if the defendant's conduct was “significantly less serious than that typically involved in the commission of the offense.” State v. Mattson, 376 N.W.2d 413, 415 (Minn.1985). The requirement that aggravating or...