State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0116

State of Minnesota,
Respondent,

vs.

Victor Arden Barnard,
Appellant.

Filed November 20, 2017
Reversed and remanded; motion denied
Larkin, Judge

Pine County District Court
File No. 58-CR-14-283

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Reese Frederickson, Pine County Attorney, Pine City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Schellhas, Judge; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant pleaded guilty to two counts of a complaint charging him with 59 counts
of criminal sexual conduct against two victims, which began when the victims were
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children and continued after they were adults . The district court sentenced appellant to
serve 180 mo nths on each count, which was an upward durational departure. Ap pellant
challenges his sentence , arguing that the district court failed to make findings to support
the departure. We reverse and remand for imposition of the presumptive sentence.
FACTS
Respondent State of Minnesota charged appellant Victor Arden Barnard with 59
counts of criminal sexual conduct. Barnard pleaded guilty to counts 42 and 52 , which
alleged sexual assaults against two different victims, and agreed to an upward durational
departure of 180 months for each offense, with his sentences to be served consecutively.
At the plea hearing, Barnard and his attorney acknowledged that the agreed -upon
sentence was an upward departure from the presumptive sentence of 144 months for each
offense. Barnard waived his right to a trial on the presence of aggravating sentencing
factors. Barnard’s attorney asked Barnard, “you are agreeing that those aggravating factors
existed and you are agreeing that the state does not have to prove them beyond a reasonable
doubt?” Barnard agreed. With regard to count s 42 and 52, Barnard’s attorney asked, “as
it relates to the aggravated factors, you agree that this act occurred multiple times over a
number of years?” Barnard stated that he agreed.
At Barnard’s sentencing hearing on October 28, 2016, the two victims read impac t
statements into the record. After which, the state’s attorney said, “there is really not much
I can add by way of the sentencing argument” and asked the court to impose the maximum
sentence of 30 years. Barnard’s attorney asked the court to honor the plea agreement by
ordering a 30 -year sentence. The district court stated that the maximum penalty for
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Barnard’s offense was 30 years’ imprisonment, sentenced Barnard to 180 months for each
offense, and designated the sentences as consecutive, for a total sentence of 360 months’
imprisonment.
The district court did not state that its sentence constituted a departure from the
presumptive sentence, and it did not provide any departure grounds on the record , either
orally or in writing. The district court filed a sentencing report on the day of sentencing
stating that the sentence imposed was not a departure. Barnard appealed his sentence on
January 24, 2017. Months after the appeal , the district court filed a sentencing departure
report for each offense, indicating that it departed from the presumptive sentence because
the victims were particularly vulnerable.
Barnard appeals his sentence and moves this court to strike the departur e reports
and any mention of them in the state’s responsive briefs.
D E C I S I O N
The statutes and sentencing provisions that govern in a case are those that were in
effect when the offense was committed. State v. Robinson, 480 N.W.2d 644, 645 (Minn.
1992). The conduct underlying Barnard’s convictions occurred in 2002. Barnard was
convicted under Minn. Stat. § 609.342 (2002), which provided that “the court shall presume
that an executed sentence of 144 months must be imposed on an offender convicted of
violating this section. Sentencing a person in a manner other than that described in this
paragraph is a departure from the sentencing guidelines.” Minn. Stat. § 609.342, subd.
2(b). It is undisputed that in 2002 , the sentencing guidelines directed imposition of the
statutory sentence of 144 months. Minn. Sent. Guidelines IV , n.2 (2002). The district
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court imposed a sentence of 180 months for each count, which constituted an upward
durational departure from the presumptive sentence.1
It is assumed that the presumptive sentence is appropriate. See State v. Kindem, 313
N.W.2d 6, 7 (Minn. 1981) (stating that it is a rare case where an appellate court will reverse
a district court’ s imposition of the presumptive sentence) . The district court may depa rt
from a presumptive sentence only if there are “substantial and compelling circumstances”
in the record to justify a departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).
“When departing from the presumptive sentence, a judge must provide writ ten reasons
which specify the substantial and compelling nature of the circumstances, and which
demonstrate why the sentence selected in the departure is more appropriate, reasonable, or
equitable than the presumptive sentence.” Minn. Sent. Guidelines II.D (2002). We review
the decision to depart for an abuse of discretion. Dillon v. State , 781 N.W.2d 588, 595
(Minn. App. 2010), review denied (Minn. July 20, 2010).
Barnard argues that the district court failed to make sufficient findings to support a
departure in this case. Barnard cites Williams v. State for the proposition that a departure
will not be allowed unless the reasons for departure are stated on the record at the time of
the hearing. 361 N.W.2d 840, 844 (Minn. 1985). Williams provides that:
In order to ensure future compliance, however, with the
sentencing guidelines requirements, we prospectively adopt,

1 The imposition of consecutive sentences was permissive and did not constitute a
departure. See Minn. Sent. Guidelines II.F (2002) (“[C]onsecutive sentences are
permissive (may be given without departure) only in the following cases: . . . (6) A current
felony conviction for . . . Criminal Sexual Conduct in the First through Fourth Degrees
with force or violence as defined in [Minn. Stat. §§ 609.342 through 609.345].”)
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effective the date this opinion is filed, the following general
rules:
1. If no reasons for departure are stated on the record
at the time of sentencing, no departure will be
allowed.
2. If reasons supporting the departure are stated, this
court will examine the record to determine if the
reasons given justify the departure.
3. If the reasons given justify the departure, the
departure will be allowed.
4. If the reasons given are improper or inadequate, but
there is sufficient evidence in the record to justify
departure, the departure will be affirmed.
5. If the reasons given are improper or inadequate and
there is insufficient evidence of record to justify the
departure, the departure will be reversed.

Id. (emphasis added).
Barnard also relies on State v. Misquadace , which requires district courts to
“articulate substantial and compelling circumstances other than a plea agreement when
departing from the guidelines.” 644 N.W.2d 65, 72 (Minn. 2002).
The state counters that , “[A] departure is not prohibited where ‘the record clearly
indicates that the trial court originally intended to depart’ even if the court did not make
verbal findings,” relying on State v. Garrett, 479 N.W.2d 745, 749 (Minn. App. 1992). In
Garrett this court held that “[t]here can be no sentencing departure unless the trial court
makes findings to support a departure. Where the failure to make findings appears to be a
mere oversight, however, the trial court may depart on remand provided it makes the
requisite findings.” 479 N.W.2d at 746. We reasoned that “ [u]nder Williams, this court
must reverse the sentence becaus e the trial court failed to make the proper findings. This
does not mean, however, that the trial court is required to impose the presumptive sentence
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on remand.” Id. at 749. We went on to say, “[R]ule one in Williams does not prohibit the
trial court from departing upon remand where the record clearly indicates that the trial court
originally intended to depart.” Id.
The state’s reliance on Garrett is misplaced because in State v. Geller , the
Minnesota Supreme Court reaffirmed the rule it announced in Williams, stating , “[N]o
departure from the presumptive guidelines sentence is permitted absent a statement of the
reasons for a sentencing departure placed on the record by the court at the time of
sentencing.” 665 N.W.2d 514, 514 -15 (Minn. 2003). In d oing so, the supreme court
recognized two conflicting lines of cases from this court.
In one line of cases, the court of appeals has given the
sentencing judge an opportunity to provide reasons for a
departure on remand when the judge fails to give reasons on
the record at the time of sentencing. In the other line of cases,
it has not permitted departure. The state . . . contends that
because this court denied review of Garrett we implicitly
ratified the court of appeals’ holding in Garrett.

Id. at 517 (internal citations omitted).
In Geller, t he state asked the supreme court to “more clearly mandate that
defendants be informed of the reasons for departure at the time of sentencing” and to “warn
district courts that failure to comply in the future will r esult in imposition of a guidelines
sentence.” Id. The supreme court responded that:
Today we re -affirm Williams. The McAdory, Garrett,
Sundstrom, Pieri line of cases notwithstanding, we conclude
that the first rule we set out in Williams is clear: absent a
statement of the reasons for the sentencing departure placed on
the record at the time of sentencing, no departure will be
allowed. As we discussed in Williams, this rule is consistent
with the requirements of the sentencing guidelines and
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necessary to ensure compliance with them. 361 N.W.2d at
843-44.

Id. Because “the [Geller] sentencing court did not state the reasons for departure on the
record at the time of sentencing,” the supreme court remanded to the district court for
imposition of the presumptive guidelines sentence. Id.
Later, in State v. Rannow , this court explained that under Geller, “[I]f the district
court does not state reasons for [a] departure at the time of sentencing, the departure is not
allowed.” 703 N.W.2d 575, 579 (Minn. App. 2005). Because the district court in Rannow
“did not provide orally or in writing any reason for the sentencing departure” and instead
merely sentenced in accordance with the terms of the parties’ plea agreement, we followed
Geller and remanded for imposition of the presumptive sentence. Id. at 579-80.
The state argues that the first Williams rule “merely requires that the reasons for the
departure appear somewhere on the record, whether through a judge, the attorneys, or other
means.” The state notes that the factual bases for the guilty plea s in this case included
Barnard’s acknowledgment of reasons for departure. The supreme court expressly rejected
this argument in Garrett, stating:
On appeal, the state argues that the reasons for departure
were made sufficiently clear in the prosecutor’s departure
memorandum and in the ensuing argument before the court.
This is not persuasive. See State v. Garcia, 302 N.W.2d 643,
647 (Minn. 1981) (the parties themselves have no authority to
determine the appropriate sentence). The court must make its
own findings.

479 N.W.2d at 749.
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In sum, the caselaw on this issue is clear: when a district court fails to provide
reasons for a sentencing departure on the record at the time of sentencing, no departure will
be allowed. Although we have no doubt that permissible departure grounds exist in this
case, because the district court did not provide any departure grounds on the record at the
time of sentencing, caselaw compels us to remand for imposi tion of the presumptive
sentence. We are obligated to follow the law.
Given our conclusion that the district court’s upward durational departure must be
reversed and remanded for imposition of the presumptive sentence, we do not address
Barnard’s alternative argument that “Barnard’s waiver was additionally deficient because
the conduct charged in dismissed counts cannot form the basis for an aggravated sentence.”
We similarly deny as moot Barnard’s motion to strike all references to the June 9, 2017 ,
post-appeal departure reports . We nonetheless note this court’s previous holding that ,
“[N]o departure is allowed when the trial court fails to provide reasons justifying departure
on the record at the time of sentencing and instead files a departure report over four months
later,” after the defendant has filed an appellate brief challenging the departure. State v.
Pendzimas, 379 N.W.2d 247, 249 (Minn. App. 1986).
Reversed and remanded; motion denied.