Opinion
No. A03-345.
Filed October 21, 2003.
Appeal from the Hennepin County District Court, File No. 02044459.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Benjamin Butler, Assistant State Public Defender, (for appellant)
Considered and decided by Minge, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Rachel L. Hass appeals from her sentence for eight counts of theft by swindle, alleging that the district court abused its discretion by failing to consider mitigating factors in sentencing and by ordering her to make restitution in an amount unsupported by the record. Because the record supports the district court's decision to make an upward durational departure, we affirm appellant's sentence. But because a portion of the court-ordered restitution is not supported by competent evidence, we modify the amount of restitution.
DECISION 1. Sentencing Departure
Sentencing departures are reviewed under an abuse of discretion standard. State v. Woelfel, 621 N.W.2d 767, 774 (Minn.App. 2001), review denied (Minn. Mar. 27, 2001). An upward durational departure is permissible where substantial and compelling aggravating circumstances exist. State v. Esler, 553 N.W.2d 61, 63 (Minn.App. 1996), review denied (Minn. Oct. 15, 1996). Generally, this involves a finding that a defendant's conduct was significantly more serious than the conduct typically involved in commission of the same crime. State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984).
Although a guidelines sentence is presumed appropriate, a court may depart so that a sentence is "proportional to the severity of the offense of conviction." Minn. Sent. Guidelines II.D. The guidelines set forth a nonexclusive list of factors that can be used when departing, including aggravating factors where the offense is a "major economic offense," which is defined as a "series of illegal acts committed by other than physical means and by concealment or guile to obtain money." Minn. Sent. Guidelines II.D.2.b.(4). A major economic offense can be considered an aggravating factor if two or more of the following circumstances are present: (a) the offense involved multiple incidents per victim; (b) the loss is substantially greater than the usual loss or statutory minimum; (c) the offense involved a high degree of sophistication or planning; (d) the defendant exploited a position of trust; or (e) the defendant was involved elsewhere in similar conduct, as evidenced by other civil or administrative law proceedings. Id.
The district court imposed an upward durational departure on three counts of the complaint, noting that as to each of these three counts all five of the circumstances required for a major economic offense were present. Each count involved multiple incidents per victim, each loss was substantially greater than the statutory minimum, and each involved sophistication and planning in their execution. In addition, appellant was a trusted, 17-year employee of the victim. Finally, appellant had been involved in a similar theft at her prior employment. Appellant does not deny the existence of any of these circumstances.
Appellant argues that the district court failed to consider her remorse and cooperation, as well as her mental health, which are two mitigating factors. The district court, however, stated that it had considered certain mitigating factors, including letters from supporters, appellant's remorse, and her willingness to make restitution. In recognition of these mitigating factors, the district court determined that it would impose a sentence less than the double durational departure it had intended to impose. A district court is not obligated to make a downward departure solely because a mitigating factor is present. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). The reviewing court will generally defer to the district court's assessment of "the sincerity and depth of the remorse and what weight it should receive in the sentencing decision." Woelfel, 621 N.W.2d at 775 (quotation omitted).
The district court here gave a comprehensive explanation of its reasons for the upward durational departure. Its reasoning is supported by the record and appellant has not disputed the existence of the aggravating factors. We therefore conclude that the court's decision to depart was not an abuse of discretion.
2. Restitution
Restitution must be based on competent evidence. Minn. Stat. § 611A.04, subd. 1(a) (2002). In State v. Keehn, 554 N.W.2d 405, 408 (Minn.App. 1996), review denied (Minn. Dec. 17, 1996), this court remanded a restitution order that was based on a request for $541.97 for "miscellaneous cash receipts from setting up a new household." This court concluded that this generalized description lacked the specificity required by statute. Id. Likewise, this court determined that the statutory rights were not met by an order for restitution for two years of foster care that lacked sufficient detail as to the length of time or amount. State v. Hanninen, 533 N.W.2d 660, 662 (Minn.App. 1995), review denied (Minn. Sept. 28, 1995).
Here, the victim submitted no affidavits or other evidence to support a claim of restitution. Although the complaint sets forth the basis for the amounts for which appellant was convicted, it merely makes general allegations that appellant stole an additional $194,000 between 1993 and 1997. No further details about this $194,000 are contained in the complaint, plea transcript, sentencing transcript, presentence investigation report or anywhere else in the district court record. The $194,000 figure appears based solely on the general allegations in the complaint, which merely describes the sum as approximate. Because this figure is not supported by competent evidence, as required by Minn. Stat. § 611A.04, subd. 1(a), it cannot be included in the restitution order.
In addition, the state concedes that the district court made an error when reciting into the record the amount of the loss on count one. Thus, the proper amount of restitution should be $400,476.12 ($594,476.12 minus $194,000), less the sum of $76,205.70, which appellant has already paid. The balance of restitution owed totals $324,270.42.
The district court's order for restitution is therefore modified as set out above.