State of Minnesota v. Jacob Miles Solberg , 882 N.W.2d 618 ( 2016 )

STATE OF MINNESOTA
IN SUPREME COURT
A15-0242
Court of Appeals Chutich, J.
Took no part, Hudson, J.
State of Minnesota,
Respondent,
vs. Filed: July 27, 2016
Office of Appellate Courts
Jacob Miles Solberg,
Appellant.
______________________
Lori Swanson, Minnesota Attorney General, Saint Paul, Minnesota; and
Gregory A. Widseth, Polk County Attorney, Scott A. Buhler, Assistant Polk County
Attorney, Crookston, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, Saint Paul, Minnesota, for appellant.
______________________
SYLLABUS
1. A single mitigating factor may provide a substantial and compelling reason
to impose a downward durational sentencing departure if the mitigating factor shows that
the defendant’s conduct in committing the offense of conviction is significantly less
serious than that typically involved in the commission of the offense in question.
1
2. When the defendant’s expressions of remorse did not diminish the
seriousness of his conduct in committing the offense of conviction, the district court erred
by imposing a downward durational departure based solely on the defendant’s remorse.
Affirmed.
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
1
A defendant may enter a Norgaard plea when he or she is unable to remember the
specific facts of the offense because of intoxication or amnesia but is persuaded that he or
she is likely to be convicted of the crime charged. State v. Ecker, 524 N.W.2d 712,
716-17 (Minn. 1994); State ex rel. Norgaard v. Tahash, 261 Minn. 106, 113-14, 110
N.W.2d 867, 872 (1961).
2
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
2
On May 4, 2016, we issued an order, with written opinion to follow, affirming the
court of appeals’ decision and remanding this case to the district court to impose an
executed sentence within the presumptive range.
3
Because Solberg entered his Norgaard plea after the prosecution presented its case
at trial, these facts are primarily from the victim’s sworn testimony.
3
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
4
At the time of the offense, Solberg weighed about 270 pounds and was 6 feet tall,
while the victim was much lighter and about 10 inches shorter.
4
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.
5
Solberg had a criminal history score of one when sentenced.
6
The presentence investigation report found, by contrast, that Solberg “took very
little responsibility for his actions.”
5
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.
6
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
7
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 mitigating
factors must relate to the seriousness of the offense—and not to the characteristics of the
offender—narrows the range of factors that may justify a durational departure.
The Minnesota Statutes and the sentencing guidelines provide a nonexclusive list
of aggravating and mitigating factors that may support departures of both types. Minn.
Stat. § 244.10, subd. 5a (2014); Minn. Sent. Guidelines 2.D.3. We have recognized
aggravating and mitigating factors not listed in the statutes or guidelines, see, e.g.,
Wright, 310 N.W.2d at 462 (holding that particular amenability to probation is a potential
mitigating factor justifying a dispositional departure even though particular amenability
to probation was not listed in the guidelines at the time), but the factor must still provide
an “identifiable, substantial, and compelling” reason to depart from the presumptive
sentence, Minn. Sent. Guidelines 2.D.1.
8
In this case, the court of appeals correctly held that three of the four mitigating
factors relied on by the district court are relevant only to a dispositional departure, not a
durational departure. Solberg, 869 N.W.2d at 69. Specifically, Solberg’s age, family
support, and cooperation with law enforcement are characteristics of the offender that
relate to whether Solberg should be placed in prison; they are not characteristics of the
offense that relate to whether Solberg should receive a shorter sentence. See Trog, 323
N.W.2d at 31. After the court of appeals properly rejected these three mitigating factors
as justification for a downward durational departure, the only remaining factor to
consider was Solberg’s remorse.
Solberg contends that a single factor—in this case, remorse—may support a
downward durational departure. The court of appeals rejected Solberg’s argument,
observing that the single-factor cases cited by Solberg involved aggravating factors, not
mitigating factors. Solberg, 869 N.W.2d at 69 n.3.
It is true that we have affirmed upward durational departures that were based on a
single aggravating factor. See, e.g., State v. Hicks, 864 N.W.2d 153, 159 (Minn. 2015)
(holding that concealment of a homicide victim’s body, by itself, may support an upward
durational departure); State v. Lomax, 437 N.W.2d 409, 410 (Minn. 1989) (holding that
the repeat-offender aggravating factor, by itself, may support up to a double upward
durational departure). That a single aggravating factor may, by itself, justify an upward
durational departure is supported by the statute governing aggravated sentencing
departures. The relevant subdivision specifically provides that “the court may order an
aggravated sentence beyond the range specified in the sentencing guidelines grid based
9
on any aggravating factor arising from the same course of conduct.” Minn. Stat.
§ 244.10, subd. 5a(b) (emphasis added). The singular form of the word “factor,”
combined with the word “any,” confirms that a single factor may support a departure.
See The American Heritage Dictionary of the English Language 81 (5th ed. 2011)
(defining “any” in relevant part as “[o]ne, some, every, or all without specification”).
Because nothing in the guidelines or our case law suggests that a district court
should apply different standards when determining the appropriateness of an upward or
downward departure, we hold that a single mitigating factor, standing alone, may justify a
downward durational departure. See Minn. Sent. Guidelines 2.D.3 (stating that the
following mitigating and aggravating factors are “a nonexclusive list of factors that may
be used as reasons for departure”); Trog, 323 N.W.2d at 31 (“[J]ust as a defendant’s
particular unamenability to probation will justify departure in the form of an execution of
a presumptively stayed sentence, a defendant’s particular amenability to individualized
treatment in a probationary setting will justify departure in the form of a stay of execution
of a presumptively executed sentence.”).
As in all cases, however, the district court must find that the relevant single
mitigating factor provides a substantial and compelling reason to depart from the
presumptive guidelines sentence. Because the guidelines’ goal is to create uniformity in
sentencing, departures are justified only in exceptional cases.
III.
Having decided that a single mitigating factor may support a downward
sentencing departure, we next consider whether Solberg’s remorse alone supports a
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downward durational departure in the present case. For the reasons discussed below, we
conclude that it does not.
We have consistently treated remorse as a factor that may support a downward
dispositional departure. State v. Soto, 855 N.W.2d 303, 311 (Minn. 2014). A primary
justification for considering remorse in sentencing is that a defendant’s remorse bears on
his or her ability to be rehabilitated. See Heather Strang & Lawrence W. Sherman,
Repairing the Harm: Victims and Restorative Justice, 2003 Utah L. Rev. 15, 28 (“[I]t
appears that the expression of remorse and a genuine desire for reconciliation on the part
of the offender is a significant predictor of offenders’ desistance from future offending.”).
Thus, considering remorse in the context of dispositional departures is consistent with the
principle that a district court may consider factors related to the offender—such as
particular amenability to probation—when deciding whether to stay or to execute a
sentence. See Trog, 323 N.W.2d at 31.
But, as discussed above, durational departures differ from dispositional departures.
Durational departures must be based on the nature of the offense, not the individual
characteristics of the offender. Chaklos, 528 N.W.2d at 228. Thus, a defendant’s
remorse generally does not bear on a decision to reduce the length of a sentence. State v.
Back, 341 N.W.2d 273, 275 (Minn. 1983) (“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 . . . .”).
To be sure, our past decisions do not entirely foreclose consideration of remorse in
the context of durational departures. For example, in State v. McGee, the defendant
11
struck a pedestrian with his van and kept driving even after eyewitnesses tried to stop
him. 347 N.W.2d 802, 804 (Minn. 1989). The pedestrian died at the scene. Id.
Observing that the trial court imposed an upward durational sentencing departure, in part
due to the defendant’s lack of remorse, we explained that “[g]enerally, lack of remorse
should not be a factor justifying a durational departure or one with respect to consecutive
sentencing.” Id. at 806 n.1. We acknowledged, however, that “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.” Id. The logical inverse of such an acknowledgement is the
possibility that cases may exist in which the defendant’s remorse could relate back and be
considered as evidence of remediation that makes the conduct significantly less serious
than the typical conduct underlying the offense of conviction.
But we have suggested that showing the relevance of remorse to a durational
departure will not be an easy task: a durational departure may be granted only if a
defendant’s remorse—or lack of remorse—bears on a determination of the cruelty or
seriousness of the conduct on which the conviction was based. See id. In other words,
unless a defendant can show that his demonstrated remorse is directly related to the
criminal conduct at issue and made that conduct significantly less serious than the typical
conduct underlying the offense of conviction, remorse cannot justify a downward
durational departure.
In this case, the court of appeals expressed doubt that Solberg’s remorse was
genuine. See Solberg, 869 N.W.2d at 70 (stating that Solberg’s assertion of remorse “is
12
not fully supported by the record” because he claimed to have no memory of the offense
and he did not enter a plea until trial was well underway). But a district court “sits with a
unique perspective on all stages of a case, including sentencing, and . . . is in the best
position to evaluate the offender’s conduct.” State v. Hough, 585 N.W.2d 393, 397
(Minn. 1998). Accordingly, a district court is properly tasked with deciding whether a
defendant’s actions express genuine remorse and how much weight to give to that
remorse. See Soto, 855 N.W.2d at 311 (“[W]hether Sotos’ apology was genuine or
should be given much weight were matters for the district court to decide.”).
Even crediting Solberg’s expressions of regret as genuine, however, the district
court did not find, and our independent review of the record does not show, that
Solberg’s demonstrated remorse made his conduct significantly less serious than the
typical conduct underlying the offense of conviction.7 Solberg did not engage in any
remorse-driven conduct that lessened the impact of the crime on the victim or made his
crime any less serious than other third-degree criminal sexual assaults accomplished by
coercion. Solberg’s statements of regret during the investigation and the district court
7
The State implies that Solberg’s conduct was more serious than the typical offense
because the victim testified that Solberg penetrated her both vaginally and anally.
Subjecting a victim to different forms of penetration is an aggravating factor that can
support an upward durational departure. State v. Dietz, 344 N.W.2d 386, 389
(Minn. 1984). But Solberg did not admit to multiple types of penetration or waive his
right to a hearing on aggravating factors. See Jones, 745 N.W.2d at 851 (stating that a
defendant is entitled to a jury determination of facts relevant to an aggravated sentence).
13
proceedings simply do not amount to “substantial and compelling circumstances”
justifying a downward durational departure.8
Solberg also contends that his offense is less serious than the typical crime of
third-degree criminal sexual conduct because he used coercion, not violence, to
accomplish sexual penetration. Solberg is incorrect. While it is true that third-degree
criminal sexual conduct covers a range of wrongful acts, including the use of threats or
the infliction of bodily harm, a person also commits third-degree criminal sexual conduct
when he “uses force or coercion to accomplish the penetration.” Minn. Stat. § 609.344,
subd. 1(c) (emphasis added). Solberg’s use of his overwhelming physical size and
strength to cause the victim to submit to penetration against her will fits squarely within
the statute’s prohibition of sexual assault by coercion. See Minn. Stat. § 609.341,
subd. 14 (2014) (“ ‘Coercion’ means the use by the actor of . . . superior size or strength,
against the complainant that causes the complainant to submit to sexual penetration . . .
against the complainant’s will.”).
8
At oral argument, the parties agreed that we could remand the case to the district
court to consider a dispositional departure in lieu of a durational departure. But Solberg
did not cross-appeal the separate issue of whether the district court should have imposed
a dispositional departure. Because the court of appeals did not address the issue of
whether a dispositional departure is warranted, we decline to reach it. See In re
Minnegasco, 565 N.W.2d 706, 713 (Minn. 1997) (declining to address an issue that had
not been raised before the court of appeals). Moreover, the parties did not address the
issue in their briefs to this court. See City of Duluth v. Cerveny, 218 Minn. 511, 524, 16
N.W.2d 779, 786 (1944) (stating that we ordinarily do not consider issues not raised in
briefing).
14
IV.
In conclusion, we hold that a single mitigating factor may provide a substantial
and compelling reason to impose a downward durational sentencing departure if it shows
that the defendant’s conduct in committing the offense of conviction was significantly
less serious than that typically involved in the commission of the offense in question. We
further hold that remorse is not relevant to a downward durational departure unless the
remorse somehow diminishes the seriousness of the offense. In the present case, a
downward durational departure was not warranted because the record establishes that
Solberg’s remorse did not make the third-degree criminal sexual conduct less serious than
the typical offense of third-degree criminal sexual conduct accomplished by coercion.
Affirmed.
HUDSON, J., took no part in the consideration or decision of this case.
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