State of Minnesota, Appellant,

This opinion will be unpublished and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
A18-0180

State of Minnesota,
Appellant,

vs.

Anthony Charles Resemius,
Respondent.

Filed September 24, 2018
Reversed and remanded
Smith, John, Judge*

Pine County District Court
File No. 58-CR-17-464

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

Reese Frederickson, Pine County Attorney, Lauren R. Dwyer, Assistant County Attorney,
Pine City, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for respondent)

Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Smith,
John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We reverse respondent’s sentence because the district court erroneously relied on
offender-related factors to impose a d ownward durational departure and the record
discloses no other valid ground for depart ure. We remand to t he district court for
resentencing within the presumptive guidelines range.
FACTS
During a traffic stop on May 11, 2017 , a state trooper pat -searched respondent
Anthony Charles Resemius and discovered over 170 grams of methamphetamine on his
person. Resemius was charged with a first-degree controlled -substance offense
(possession) and giving false information to a peace officer, a gross misdemeanor.
Consistent with a plea agreement, Resemius pleaded guilty to the controlled
substance offense in exchange for dismissal of the other charge and the right to argue for a
downward durational departure to the mandatory minimum sentence of 48 months. The
presumptive sentencing range for Resemius, who has a criminal history score of four, was
90-126 months. Minn. Sent. Guidelines 4.C (2016). The corrections agent who prepared
the presentence investigation report note d Resemius’s difficult family life and troubled
youth, but also noted that he wa s placed “on probation many times in the past ,” and had
violated probation after he received a downward dispositional departure on another first-
degree controlled substance conviction. Ultimately, the agent recommended that Resemius
receive a 48-month prison sentence.

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At Resemius’s sentencing hearing, the state argued that the offense was more
serious than the typical offense because of the substantial amount of methamphetamine
found in his possession and that Resemius improperly relied on his own ch aracteristics,
rather than the seriousness of the offense, in seeking a durational departure. Defense
counsel elicited testimony about Resemius’s positive progress in treatment and argued that
he demonstrated remorse through treatment participation. B efore being sentenced,
Resemius apologized for his conduct, stating that he “had a problem with drugs and alcohol
my entire life” and admitting that in the past he had sold drugs to support his “habit ,” but
that his current treatment was “probably the greates t thing that ever happened to me aside
from my children.” The district court imposed a 48 -month executed sentence, a
downward durational departure , taking into account how quickly Resemius took
responsibility for the offense and pleaded guilty, adhered t o his release conditions, and
remained law-abiding. The district court concluded that those factors “reduce[d] the severe
nature of the original offense and justify the departure.”
D E C I S I O N
A district court’s decision to depart from the presumpt ive guidelines sentence is
discretionary. State v. Stempfley, 900 N.W.2d 412, 417-18 (Minn. 2017). A dispositional
departure “places the offender in a different setting than that called for by the presumptive
guidelines sentence,” and is based on offende r-related factors that show whether the
defendant is particularly suited to probation, which, in turn, is shown by a “defendant’s
age, his prior record, his remorse, his cooperation, his attitude while in court,” and other
relevant factors. State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (quotation omitted).

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A durational departure alters the length of a sentence and “must be based on factors that
reflect the seriousness of the offense, not the characteristics of the offender.” Id. (emphasis
omitted). Generally, remorse is not a proper factor to consider in deciding whether to
depart durationally, unless it “ relate[s] back and [provides] evidence of remediation that
makes the conduct significantly less serious than the typical conduct underlying the offense
of conviction.” Id. at 625-26. Even a single factor such as remorse may provide adequate
evidence of a substantial and compelling reason to depart from a presumptive sentence. Id.
at 627.
In Solberg, the defendant expressed remorse for committin g third-degree criminal
sexual conduct, but the supreme court rejected the defendant’s argument that remorse
“made his conduct significantly less serious than the typical conduct underlying the offense
of conviction.” Id. at 626. Instead, the supreme court stated that “Solberg’s statements of
regret during the investigation and the district court proceedings” did not justify a
downward durational departure, holding “that remorse is not relevant to a downward
durational departure unless the remorse somehow diminishes the seriousness of the
offense.” Id. at 627.
Here, Resemius apologized for his crime, but like Solberg, that remorse did not
make his crime any less serious than the typical first -degree controlled-substance offense.
Resemius was convicte d of two prior controlled -substance crimes in the two years
preceding the current offense, violated probation for failure to complete chemical -
dependency treatment for one of those offenses, and was on probation for one of the
offenses when he committed the current offense. When stopped by the state patrol, he lied

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about his identity and about the contents of the baggies found on his person that contained
methamphetamine. He took a new tack only at sentencing, apologizing to the district court,
explaining his unfortunate childhood circumstances, disclosing his current participation in
chemical-dependency treatment, and admitting that he had been selling and using
controlled substances at the time of the current offense. This is not a district court record
that differs significantly from Solberg or suggests that Resemius’s crime was less serious
than the typical offense. Rather, these facts are more like State v. Rund, 896 N.W.2d 527,
535 (M inn. 2017), where the supreme court ruled that the defendant’s expression of
remorse was inadequate to lessen the seriousness of his conduct, discounting the
defendant’s confession that “was made after he was already in custody.”
Resemius also argues that the totality of circumstances otherwise support s the
departure, particularly because “[t]his case is . . . a ‘situational offense ’ unlikely to
reoccur.” See State v. Heath , 685 N.W.2d 48, 65 (Minn. App. 2004) (establishing that if
stated reasons for sentencing departure are inadequate, the appellate “court must examine
the record to determine whether there is sufficient evidence to affirm the district court’s
departure”), review denied (Minn. Nov. 16, 2004); State v. Bendzula, 675 N.W.2d 920, 924
(Minn. App. 2004) (affirming a downward durational departure on a controlled substance
offense when the defendant was “prompted” to sell drugs by police even though the
defendant refused to become an informant, which the district court found mitigated the
defendant’s conduct). We disagree. Given his significant criminal history of similar
offenses, Resemius cannot effectively argue that his current offense was “situational,” and
the record does not disclose any other offense-related factor that would support a durational

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departure. See State v. Geller , 665 N.W.2d 514, 516 (Minn. 2003 ) (quotation omitted)
(stating that when “the reasons given [for a departure] are improper or inadequate and there
is insufficient evidence of record to justify the departure, the departure will be reversed”).
Reversed and remanded.