State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1352

State of Minnesota,
Respondent,

vs.

Aretina Tiaira Williams,
Appellant.

Filed June 29, 2020
Affirmed
Bryan, Judge

Hennepin County District Court
File No. 27-CR-17-17217

Keith Ellison, Attorney General, Kristi Nielsen, Assistant Attorney General, St . Paul,
Minnesota; and

Michael O . Freeman, Hennepin County Attorney, Minneapolis, Minnesota (for
respondent)

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

Considered and decided by Bryan, Presiding Judge; Florey, 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
BRYAN, Judge
Appellant challenges the sentences imposed by the district court for three reasons.
First, appellant argues that the district court erred when it treated several of the convictions
as separate offenses instead of part of the same behavioral incident. Second, appellant
challenges her primary sentence as excessive given the conduct at issue in this case. Third,
appellant argues that the district court erred when it denied her motion for a downward
departure. We affirm the district court because we conclude that the challenged
convictions did not arise out of the same behavioral incident, that the district court did not
abuse its discretion when it imposed the sentence s in this case, and that the district court
acted within its discretion when it denied appellant’s downward departure motion.
FACTS
Respondent State of Minnesota charged appellant Aretina Tiaira Williams with one
count of attempted theft of public funds by swindle and ten counts of aiding and abetting
theft by false representation. The state alleged that Williams and her mother overbilled the
Department of Human Services (DHS) for Personal Care Assistant (PCA) services not
actually provided, and gave kickbacks to the purported recipients of these services .
Williams maintained her innocence, but entered an Alford plea1 to the one theft-by-swindle
count and to five of the theft-by-false-representation counts.

1 An Alford plea allows the defendant to enter a guilty plea, while maintaining a claim of
innocence. State v. Goulette, 258 N.W.2d 758, 761 (Minn. 1977) (adopting North Carolina
v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970)).

3
The parties do not dispute the facts underlying the offense and signed a written
stipulation regarding the factual basis for the plea. The parties agreed that the state would
prove the following facts beyond a reasonable doubt at trial . W illiams worked as a
manager, administrator, and the designated biller for her mother’s business, Your Way
Home Care (YWHC). YWHC was a personal care provider organizati on (PCPO) that
contracted with Personal Care Assistants (PCAs) to provide services to Medicaid recipients
at the recipient’s home. As a PCPO, YWHC would pay its PCAs based on the hours
reflected in the PCAs’ timesheets. YWHC would then submit claims to D HS for
reimbursement of these payments. Williams received training from the DHS on how to
bill for a PCPO. Williams was taught not to submit any claims that lacked proper
documentation. On over 1,200 2 occasions, however, Williams submitted claims to DHS
for amounts that did not match the PCAs’ timesheets. In addition, Williams instructed
YWHC’s PCAs to pay kickbacks to the Medicaid recipients that YWHC served. The state
attached an exhibit to the stipulation that included the specific dates of YWHC’s c laims
and that summarized the dollar amounts of fraudulent charges for each of th e ten charged
counts of aiding and abetting theft by false representation. The combined losses of the ten
charged counts totaled $1,139,945.67. After DHS suspended YWHC from the Medicaid
program, Williams worked with her father to gain approval for a new PCPO called DOTS

2 At times, both the state and the district court refer to “12,000 claims,” but the factual
stipulation states that “On over 1 ,200 occasions, the total time reported on the timesheet
did not match the claim submitted to the DHS.”

4
Home Health Care. This conduct formed the basis for the charges against Williams in
count 1 for attempted theft by swindle.
In the presentencing investigation report (PSI), Williams told the probation officer
that she used the billing practices her mother taught her, even though she received training
from the state. She expressed that she attempted to change how YWHC operated, but her
ideas were rejected , and she acquiesced to her mother’s practices . She denied that she
“intentionally recorded PCA hours which were not worked, encouraged others to
participate in fraudulent activity, or personally benefited financially from over billing the
State.” She disagreed that her reason for attempting to open a second PCPO was to commit
further acts of fraud. The author of the PSI concluded that Williams “portrayed herself as
a passive participant in the offense.”
Williams requested a do wnward dispositional departure from the presumptive
guidelines sentence for the following offender-related reasons: (1) she cares for two young
children, her mother, and her sister; (2) she was employed and just a few months away
from finishing her bachelo r’s degree; (3) she had a difficult childhood, whi ch included a
history of trauma and sexual assault; (4) she did not benefit from the fraud; and (5) she
expressed remorse for her actions. The state requested that that the district court calculate
Williams’s criminal-history scores by using the Hernandez method3 and argued that the

3 In State v. Hernandez, the Minnesota Supreme Court set forth a process for district courts
to follow when sentencing an offender on the same day for multiple convictions, instructing
courts to increase an offender’s criminal-history score with each successive sentence. 311
N.W.2d 478, 481 (Minn. 1981).

5
district court should deny Williams’s request for a downward dispositional departure and
impose the guidelines sentence for each separate conviction.
The district court denied Williams’s dispositional departure motion based on the
following offender-related conclusions: (1) Williams could have run a legitimate business,
but chose not to ; (2) Williams was not particularly amenable to probation because she
minimized her role in the offense and did not take full r esponsibility for her actions ;
(3) Williams’s childhood trauma does not support a departure because Williams
subsequently worked with the very people who traumatized her to commit these offenses;
and ( 4) although Williams cares for her children and others, “people can’ t evade
responsibility for criminal acts based on their status as a parent.” In addition, the district
court denied the motion based on the following offense -related factors: (1) the nature of
the offenses was “particularly egregious” because the offenses involved taking advantage
of persons with disabilities; (2) the charged offenses included a very large number of claims
totaling over a million dollars in theft of public funds; and (3) Williams continued with the
fraudulent conduct even after the state suspended YHWC.
The district court concluded that th e six offenses did not arise fro m a single
behavioral incident because the offenses were committed at different times and were not
committed to achieve the same, specific criminal objective. The district court Hernandized
the offenses, starting with count seven, and working backward to count one, the most recent
offense. Williams received concurrent sentences for these six offenses, as follows (listed
in the order that the offenses occurred):

6
a) an executed sentence of 21 months for aiding and
abetting theft of over $35,000 by false representation in
count seven, which occurred from July 2013 through
December 2013;
b) an executed sentence of 27 months for aiding and
abetting theft of over $35,000 by false representation in
count six, which occurred from January 2014 through
June 2014;
c) an executed sentence of 39 months for aiding and
abetting theft of over $35,000 by false representation in
count five, which occurred from July 2014 through
December 2014;
d) an executed sentence of 45 months for aiding and
abetting theft of over $35,000 by false representation in
count four, which occurred from January 2015 to June
2015;
e) an executed sentence of 57 months for aiding and
abetting theft of over $35,000 by false representation in
count three, which occurred from July 2015 to
December 2015;4 and
f) an executed sentence of one year and one day for
attempted theft by swindle in count one, which occurred
December 2016 through August 2017.

This appeal followed.

4 Initially, the district court imposed a stay of execution for counts seven, six, and one.
Given that the executed sentences would run concurrent with the stayed sentences, the
district court asked whether Williams would prefer to execute these presumptively stayed
sentences. Williams requested execution, and the district court imposed an upward
dispositional departure for counts one, six, and seven. Williams does not challenge this
decision.

7
D E C I S I O N
I. Multiple Behavioral Incidents

Williams argues that the five counts of aiding and abetting theft by false
representation arose out of a single behavioral incident , and the district court erred by
Hernandizing these convictions and imposing multiple sentences . We conclude that the
district court properly treated each conviction as a separate incident.
The Minnesota Se ntencing Guidelines Commission has promulgated sentencing
guidelines to be used by a district court. See Minn. Stat. § 244.09 (2018). The guidelines
set forth, among other things, the procedures by which the distri ct court calculates a n
offender’s cri minal-history score. See Minn. Sent. Guidelines 2.B (2012). When an
offender is sentenced for multiple convictions on the same day, district courts include the
first conviction in calculating the criminal-history score for the next offense, repeating the
process for each successive sentence. State v . Williams, 771 N.W.2d 514, 521 (Minn.
2009); State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981). Generally, however, a
district court cannot impose multiple sentences for separate convictions arising from a
single behavioral incident . Minn. Stat. § 609.035 , subd. 1 (2018); State v. Kebaso , 713
N.W.2d 317, 322 (Minn. 2006) (“ [A] defendant will be punished for the most serious of
the offenses arising out of a single behavioral incident . . . .” (quotation omitted)). District
courts follow a similar practice for calculating criminal-history scores: “when a defendant
is sentenced for multiple convictions based on a single behavioral incident . . . the district
court is prohibited from using the Hernandez method to calculate the defendant’s criminal-
history score.” Williams, 771 N.W.2d at 522; see also, e.g. , Minn. Sent. Guidelines

8
2.B.1.e.(1), (2) (prohibiting courts from using the Hernandez method when convictions
arise from a single course of conduct).
“[W]e determine whether the crimes were part of a single behavioral incident by
considering (1) whether the offenses occurred at substantially the same time and place, and
(2) whether the conduct was motivated by an effort to obtain a single criminal objec tive.”
State v. Bakken, 883 N.W.2d 264, 270 ( Minn. 2016) (citations and quotations omitted) .
When reviewing a district court’s determination of whether the separate offenses arose out
of a single behavioral incident , “we review the district court’s findi ngs of fact for clear
error and its application of the law to those facts de novo.” Bakken, 883 N.W.2d at 270.
The Minnesota Supreme Court has repeatedly stated that a broad criminal motive
cannot unify separate crimes in to a single course of conduct. See State v. Bauer , 792
N.W.2d 825, 830 (Minn. 2011) (affirming multiple sentences because sharing illegal drugs
with friends is too broad to constitute a single criminal objective); State v. Gould , 562
N.W.2d 518, 521 (Minn. 1997) (affirming use of the Hernandez method because relieving
financial hardship is too broad to constitute a single criminal objective); State v. Soto, 562
N.W.2d 299, 304 (Minn. 1997) (affirming use of Hernandez method because selling drugs
to relieve financial hardship is too broad to constitute a single criminal objective); State v.
Gilbert, 262 N.W.2d 334, 338 (Minn. 1977) ( affirming multiple sentences because the
identified criminal objective, “general hatred of women,” is too broad to constitute a single
criminal objective).
The mere fact that a defendant commits “multiple crimes over time for the same
criminal objective does not mean [the defendant] committed those crimes to attain a single

9
criminal objective.” Bakken, 883 N.W.2d at 271-72 (affirming multiple sentences because
the identified criminal objective, satisfying sexual urges , did not constitute a single
criminal objective). The Minnesota Supreme Court recently reiterated that our analysis
does not end with a determination that separate convictions were motivated by the same
objective because we also consider whether the commission of one offense was “in
furtherance of, or even incidental to” the completion of the other offense s. State v.
Barthman, 938 N.W.2d 257, 267 (Minn. 2020) (quoting Bakken, 883 N.W.2d at 271).
We have also previously affirmed the imposition of multiple sentences and the use
of the Hernandez method where the separate offenses were specifically part of an ongoing
scheme to defraud because the offenses were not unified by a single behavioral incid ent.
See, e .g., State v . Medibus-Helpmobile, Inc ., 481 N.W.2d 86, 92 (Minn. App. 1992)
(affirming multiple sentences and use of the Hernandez method for seven counts of theft
by false representation in a Medicare/Medicaid fraud scheme), review denied (Minn.
March 19, 1992). “Making deceptive billings a continuing business practice does not
transform them into a single behavioral incident.” Id.; see also, e.g., State v. Eaton, 292
N.W.2d 260, 267 (Minn. 1980) (stating that “one large plan to swindle as much as possible”
is “too broad to be a single criminal goal”); State v. O’Brien, 429 N.W.2d 293, 297 (Minn.
App. 1988) (affirming use of Hernandez method for each of four counts of theft by swindle
arising out of the same ongoing fraudulent investment scheme), review denied (Minn. Nov.
16, 1988) ; State v. Chidester, 380 N.W.2d 595, 597 -98 (Minn. App. 1986) (affirming
fourteen separate concurrent sentences for theft by false representation and aggravated
forgery because the identified criminal objective, obtaining money to cover expenses and

10
prevent overdrawing an account, was too broad to constitute a single criminal objective),
review denied (Minn. March 21, 1986).
In this case, Williams argues that the offenses share a unity of time, place, and
objective, which would prohibit using the Hernandez method to calculate her criminal -
history score. We disagree for three reasons. First, we cannot conclude that the conduct
in this case is unified by time and place because Williams admitted that the conduct
spanned multiple years (from July 2013 through December 2015), involved multiple PCAs
and Medicaid recipients , and 1 ,200 separate claims . Thirty months separate the offense
conduct stipulated to in this case. Williams’s argument runs counter to previous decisions
regarding whether multiple offenses share or lack a unity of time. See Gould, 562 N.W.2d
at 521 (concluding that there was no unity of time among three separate drug sales to the
same person over the course of one week); Soto, 562 N.W.2d at 304 (concluding that there
was no unity of time among four separate drug sales to the same person over the course of
one month); Eaton, 292 N.W.2d at 266 -67 (concluding that there was no unity of time
among two illegal financial transactions committed over the course of three days); O’Brien,
429 N.W.2d at 297 (concluding that there was no unity of time among four separate theft-
by-swindle offenses over the course of a month and a half); Chidester, 380 N.W.2d at 597-
98 (concluding that there was no unity of time among fourteen separate theft -by-false-
representation and aggravated-forgery offenses over the course of eight months). We have
also previously approved using the Hernandez method to calculate an offender’s criminal-
history score when the state aggregated the conduct in an ongoing fraud scheme into
successive six -month intervals . Medibus-Helpmobile, 481 N.W .2d at 92 . Given these

11
decisions, we cannot conclude that the offenses in this case share a unity of time because
they involve claims that Williams submitted in 2013, 2014, and 2015.
Second, we cannot conclude that the offenses arose out of the same criminal
objective. The motive in this case, obtaining money through an ongoing, deceitful business
practice, is too broad to constitute a single criminal objective. See Eaton, 292 N.W.2d at
267; O’Brien, 429 N.W.2d at 297; Chidester, 380 N.W.2d at 597 ; Medibus-Helpmobile,
481 N.W.2d at 92.
Third, the claims submitted in completion of one offense do not relate to the claims
submitted for the completion of any other offense. We cannot, on these facts, conclude
that the submission of a fraudulent claim in 2013 was completed “in furtherance of, or
incidental to” the submission of the other fraudulent claims in 2014 or 2015 . See
Barthman, 938 N.W.2d at 267; Bakken, 883 N.W.2d at 271. Because the convictions do
not share a unity of time, place, or objective, we conclude that they arose out of separate
behavioral incidents and, therefore, we affirm the use of the Hernandez method to calculate
Williams’s criminal-history score and to impose multiple sentences.
II. Duration of William’s Sentences
Williams argues that using the Hernandez method to calculate her criminal-history
score resulted in an excessive sentence, exaggerating the criminality of her conduct. We
conclude that the district court did not abuse its discretion when it used the Hernandez
method resulting in the imposition of a 57-month prison term.
“We review a district co urt’s determination of whether a s entence exaggerates the
criminality of the defendant’s behavior for an abuse of discretion. ” State v. Alger , 941

12
N.W.2d 396, 403 (Minn. 2020) (citations omitted). In making this determination, “we are
guided by past sentences received by other offenders for similar offenses.” Id. (quotation
omitted); see also State v. Vazquez , 330 N.W.2d 110, 111 -12 (Minn. 1983). This court
may also “reduce a defendant’s sentence in order to make it more equitable with the
sentence that a similarly situated codefendant received.” State v. Back, 341 N.W.2d 273,
277 (Minn. 1983).
In this case, Williams asserts that the district cour t imposed an excessive sentenc e
because her a codefendant, Williams’s mother, received a stay of execution. A review of
the record and of other sentences for similar offenses supports the district court’s
sentencing decision in this case. See State v. Thompson , 720 N.W.2d 820, 823, 830 -31
(Minn. 2006) (reversing the court of appeals and affirming a double upward durational
departure sentence of 114 months for nine theft -by-swindle convictions relating to
embezzlement of $600,000); State v. Rott , 313 N.W.2d 574, 574-75 (Minn. 1981)
(upholding departure, but reducing sentence to 24 months for five theft -by-check
convictions relating to theft of $20,000); O’Brien, 429 N.W.2d at 295 (affirming sentence
of 82 months and an upward departure for theft -by-swindle convictions relating to a
deceptive investment scheme totaling $136,000 in losses to the victims).
In light of these cases, we cannot agree with Williams that her sentence of 57 -
months is excessive. Williams pleaded guilty to five theft-by-false-representation offenses
relating to a million -dollar fraud scheme. The losses in this case are far more extensive
than the losses in Thompson, Rott, and O’Brien. Nevertheless, Williams received a lower
sentence than those affirmed for the offenders in the cited cases. In addition, Williams

13
acknowledged that the state would prove beyond a reasonable doubt that she instructed
other individuals, such as PCAs, how to perpetuate the fraud scheme by paying kickbacks
to Medicaid recipients. This conduct justifies tre ating Williams differently from her
mother. Therefore, we conclude that the district court did not abuse its discretion when it
imposed an executed sentence of 57 months, concurrent with the other sentences.
III. Denial of Downward Dispositional Departure
Williams argues that the district court abused its discretion by denying her motion
for a downward dispositional departure because it considered offense-related factors rather
than offender-related factors. 5 Alternatively, Williams also argues that the district court
abused its discretion when it denied the departure motion.
The sentencing guidelines provide “ a nonexclusive list of factors t hat may be used
as reasons for departure.” State v. Hicks, 864 N.W.2d 153, 157 ( Minn. 2015) (quotation
omitted). The “district court may depart from the presumptive guidelines sentencing range
only if there exist identifiable, substantial, and compelling circumstances to support a
sentence outside the range on the grids.” Tucker v. State , 799 N.W.2d 583, 586 ( Minn.
2011) (quotation omitted). “Substantial and compelling circumstances are those
circumstances that make the facts of a particular case different from a typical case.” State
v. Peake, 366 N.W.2d 299, 301 (Minn. 1985).

5 Williams also argues that the district court improperly considered the fact that she entered
an Alford plea as a reason to deny her departure motion. The argument, however, misstates
the district court’s statements. The district did not deny the departure request because
Williams entered an Alford plea. Instead, the district court concluded that Williams had
minimized her culpability throughout the case, including when she rejected an earlier offer
to plead guilty and in her statements to the probation officer who completed the PSI.

14
The standard of review applied depends on the nature of the challenge to the district
court’s departure decision. We apply a de novo standard of review to questions of law,
such as the validity of the stated reason for departure. State v. Jackson, 749 N.W.2d 353,
357 ( Minn. 2008); see also D illon v. State , 781 N.W.2d 588, 59 5 (Minn. App. 2010)
(observing that a de novo standard of review applies “when reviewing whether a particular
reason for an upward departure is permissible”) review denied (Minn. July 20, 2010). We
apply an abuse -of-discretion standard of review to other aspects of the decision. For
example, we review for an abuse of discretion the district court’s conclusion that the factual
record supports a legally permissible departure grounds. Hicks, 864 N.W.2d at 163.
Abuse-of-discretion review also applies to the district court’s decision whether to depart .
Dillon, 781 N.W.2d at 595 (“Once we determine as a matter of law that the district court
has identified proper grounds justifying a challenged departure, we review its decision
whether to depart for an abuse of discretion .”). Likewise, we review the extent of the
departure for an abuse of discretion. Id. at 596 (“ We have generally deferred entirely to
the district court’s judgment on the proper length of de partures that result in sentences of
up to double the presumptive term .”). Where a district court makes factual findings in
order to apply the provisions of the sentencing guidelines, we review those facts for clear
error. See State v. Critt , 554 N.W.2d 93, 95 (Minn. App. 1996) (stating the general rule
that district court findings of fact are subject to review for clear error ), review denied
(Minn. Nov. 20, 1996) . In applying these standards of review, we have previously
observed that o nly “a rare case . . . would warrant reversal of the refusal to depart” on
appeal. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

15
In this case, Williams first argues that the district court denied her departure motion
for a legally impermissible reason because courts are prohibited from considering offense-
related reasons when deciding dispositional departure motions . Contrary to Williams’s
argument, we have repeatedly held that district courts may consider both offense -related
and offender -related factors when deciding w hether to grant a request for dispositional
departure. State v. Walker , 913 N.W.2d 463, 468 (Minn. App. 2018) ( “For a downward
dispositional departure, a district court may consider both offender - and offense-related
factors.”); see also, e.g. , State v. A llen, 706 N.W.2d 40, 46 (Minn. 2005) (“Upward
dispositional departures under the guidelines may be based on either offender - or offense-
related aggravating factors.”); State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995) (stating
that “offense-related aggrav ating factors may be used to support not only such a
dispositional departure but, alternatively, an upward durational departure ” (emphasis
omitted)). Here, the district court properly relied on both offense-related and offender -
related factors to deny Williams’s departure motion.
Williams alternatively argues that the district court abused its discretion in denying
the departure request. We disagree and conclude that the district court gave careful
consideration to the stated grounds for Williams’s departure motion. T he district court
denied the departure request because it did not agree with all of the factual characterizations
contained in the departure motion and it did not find convincing Williams’s arguments
regarding the offender-related factors listed in the departure motion. The district court also
denied the motion because it concluded the following about Williams: (1) she could have
run a legitimate business, but chose not to ; (2) Williams was not particularly amenable to

16
probation because she minimized her role in the offense and did not take full responsibility
for her actions ; (3) Williams’s childhood trauma does not support a departure because
Williams subsequently worked with the very people who traumatized her to commit th ese
offenses; and (4) although Williams cares for her children and others, “people can’t evade
responsibility for criminal acts based on their status as a parent.” In addition, the district
court determined the following about the offenses : (1) the nature of the offenses was
“particularly egregious” because the offenses involved taking advantage of persons with
disabilities; (2) the charged offenses included a large number of claims totaling over a
million dollars; and (3) Williams continued with the fraudulent conduct even after the state
suspended YHWC . Because the district court’s conclusions were well -reasoned and
factually supported by the parties’ lengthy written stipulation, 6 the district court did not
abuse its discretion in denying Williams’s motion for a downward dispositional departure.
Affirmed.

6 Williams appears to implicitly challenge the district court’s factual findings as well. For
example, Williams disagrees with the finding that she minimized her role when speaking
with the probation officer. Williams stipulated, however, that she instructed others to pay
kickbacks to recipients and that she was involved in the submission of over 1 ,200 claims.
These stipulations conflict with the denials that Williams made to the probation officer and
indicate that her role was not as passive as described in Williams’s statement in the PSI.
The district court agreed with the assessment of the probation officer, who wrote that
Williams “portrayed herself as a passive participant in the offense.” We conclude that the
district court’s factual findings are supported by the record and not clearly erroneous.