Nicholas Adam Willard, petitioner, Appellant,

This opinion will be unpublished and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
A20-0317

Nicholas Adam Willard, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 21, 2020
Affirmed
Cochran, Judge

Hennepin County District Court
File No. 27-CR-17-26468

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Lydia Maria Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorn ey, Sarah J. Vokes, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Slieter, Presiding Judge; Bratvold, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Nicholas Adam Willard appeals from th e denial of his pos tconviction petition
challenging the sentencing court’s refusal to grant a downward durational departure for his

2
first-degree criminal-sexual-conduct conviction. Because the postc onviction court acted
well within its discretion when it denied his petition, we affirm.
FACTS
The state charged appellant Nicholas Adam Willard with first-degree criminal
sexual conduct in October 2017, alleging that he sexually penetrated his stepdaughter when
she was under 16 years old. Willard agreed to plead guilty , with no agreement as to
sentencing. At the plea hearing, Willard entered a guilty plea, waived his trial rights, and
admitted a factual basis for the plea. Specifically, Willard agreed that, on one occasion, he
engaged in oral sex with his stepdaughter an d that she was 15 years old at the time. The
district court accepted Willard’s guilty plea a nd continued the matter to a later date for
sentencing.
Under the Minnesota Sentencing Guid elines, Willard faced a presumptive
sentencing range of 144 to 172 months in prison for this felony offense because he had no
criminal history. See Minn. Sent. Guidelines 4.B (Supp. 2017). At the sentencing hearing,
the state asked the court to sentence Willard to the top of the sentencing range. Willard
moved for a downward durationa l departure of 122 months. He emphasized that he had
expressed remorse for the offense, had no crim inal history, was unlikely to reoffend, and
was capable of rehabilitation.
The sentencing court denied Willard’s request for a downward durational departure.
The sentencing court stated: “the only basis that I would be able to consider the downward
departure on . . . would be that acceptance of responsibility.” The sentencing court
acknowledged Willard’s statement that he “[felt] bad for what happened,” but nonetheless

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denied Willard’s downward-departure request. The sentencing court reasoned that it was
“not supposed to use [remorse] as a stand-alone reason” for departing and that it “just [did
not] see things here that allow the downward departure.” Highlighting the fact that Willard
pleaded guilty so that the victim did not have to testify, the court sentenced Willard to the
bottom of the presumptive range—144 months in prison.
Willard petitioned for postc onviction relief in November 2019, asking that his
sentence be reversed and that he be granted a downward durational departure because the
sentencing court erred by denying his departure motion. The postconviction court denied
Willard’s petition, concluding that the sentencing court properly considered the factors for
and against departure, including Willard’s pr ofessed remorse, and appropriately rendered
a presumptive sentence. Willard appeals.
D E C I S I O N
Willard argues that the postconviction co urt abused its disc retion by denying his
petition for relief from the sentencing court’ s refusal to grant a downward durational
departure. He contends th at his showing of remorse supported his departure motion
because it made his conduct less serious than the typical offense. We are not persuaded.
We review a district court’s denial of a postconviction petition for an abuse of
discretion. Reed v. State , 793 N.W.2d 725, 730 (Minn. 2010). We likewise review a
district court’s sentencing decisi on for an abuse of discretion. State v. Soto ,
855 N.W.2d 303, 307-08 (Minn. 2014). Under this standard of review, we will not reverse
unless the district court exercised its discretion in an arbitrary or capricious manner, based
its ruling on an erroneous view of the law, or made clearly erroneous factual findings.

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Reed, 793 N.W.2d at 729; see also State v. Davis, 546 N.W.2d 30, 35 (Minn. App. 1996),
review denied (Minn. May 21, 1996).
We begin our review by considering the requirements of the Minnesota Sentencing
Guidelines. The Minnesota Sentencing Guidelines establish sentencing ranges for felony
offenses that “are presumed to be appropriate for the crimes to which they apply.” Minn.
Sent. Guidelines 2.D.1 (Supp. 2017). The se ntencing court must sentence a defendant
within the presumptive range “ unless there exist identifiable, substantial, and compelling
circumstances to support a departure.” Id. Circumstances justifying a departure are those
“that make the facts of a particular case different from a typical case.” Taylor v. State ,
670 N.W.2d 584, 587 (Minn. 2003). “Wheth er to depart from the sentencing guidelines
rests within the district court’s discretion.” State v. Pegel, 795 N.W.2d 251, 253 (Minn.
App. 2011). Only in a “rare case” will this court reverse a sentencing court’s refusal to
depart from the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Under the guidelines, there are two types of sentencing departures: durational and
dispositional. State v. Solberg , 882 N.W.2d 618, 623 (Minn. 2016). Willard sought a
downward durational departure, which impose s a sentence different in length from the
sentencing guidelines’ presumptive range. Id. The sentencing court may grant a downward
durational departure “only if the defendant’s conduct was significantly less serious than
that typically involved in the commission of the offense.” Id. at 624 (quotation omitted).
By contrast, a downward dispositional departure places the defendant in a different setting
than that called for by the sentencing guidelin es (i.e. probation rather than prison). Id.
at 623. When deciding whether to gran t a downward dispositional departure, the

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sentencing court generally focuses on the characteristics of the defendant. Id. But when,
as here, the sentencing court considers whether to grant a downward durational departure,
it must focus on the seriousness of the offense, not the defendant’s characteristics.
Id. at 623-24; see also State v. Rund , 896 N.W.2d 527, 533 (Minn. 2017)
(“Offender-related reasons . . . are not le gally permissible reasons for a downward
durational departure.”).
Willard argues that the sentencing cour t erred by denying hi s departure request
because his conduct was less serious than the typical first-degree criminal-sexual-conduct
offense. The only circumstance that Willard advances on appeal as supporting a downward
durational departure is his expression of remorse. Remorse is typically an offender-related
characteristic and therefore is generally an appropriate consideration only for a downward
dispositional departure. See State v. Trog , 323 N.W.2d 28, 30-31 (Minn. 1982) (noting
that several factors, including a defendant’s remorse, are relevant to determining whether
a defendant is particularly amenable to probation for a downward dispositional departure);
see also Solberg, 882 N.W.2d at 625 (stating that “a defendant’s remorse generally does
not bear on a decision to reduce the length of a sentence” (emphasis added)). The supreme
court nonetheless has recognized that remors e may be a relevant consideration for a
downward durational departure if the defendant’s remorse “i s directly related to the
criminal conduct at issue and made that conduct significantly less serious than the typical
conduct underlying the offense of conviction.” Solberg, 882 N.W.2d at 626. To make this
showing, the defendant’s remorse must “relate back” to the offense. Id. at 625. In Solberg,
the supreme court concluded that the defendant’s expressions of regret during the criminal

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investigation and district court proceedings did not show that his conduct was less serious
at the time he committed the offense and, thus, did not justify a downward durational
departure. Id. at 626.
Here, like the defendant in Solberg, Willard’s expression of remorse did not relate
back to the time he committed the offense. At the sentenci ng hearing, Willard’s counsel
told the court that Willard was “extremely remo rseful” as evidenced by the fact that he
pleaded guilty. Willard’s expression of remors e by pleading guilty re lates to his conduct
during the criminal proceedings, not his conduct at the time of the offense. See id. And
the record—particularly the presentence investigation report and the plea colloquy
establishing the factual basis for the offense— is devoid of any indication that Willard
expressed remorse at the time he committed the offense such that it would lessen the
offense’s seriousness. Because Willard’s re morse-based argument did not show how his
remorse made his conduct less serious, the se ntencing court properly denied Willard’s
downward-durational-departure motion. See id.
Willard argues further that the senten cing court erred because it improperly
concluded that it could not rely on his remorse as a sole reason for justifying a departure.
The sentencing court was somewhat inconsistent on this matter. It recognized that “the
only basis that I would be able to consider th e downward departure on . . . would be that
acceptance of responsibility,” and said, “It’s not just about looking back from the [date of
the offense], but it’s specifically about that night.” The sentencing court then commented
that, “although the case law allows me to consider [remorse], I’m not supposed to use it as
a stand-alone reason.” To the extent that the sentencing court implied that it could not rely

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on remorse alone, it was incorrect. In Solberg , the supreme court held that “a single
mitigating factor, standing alone, may jus tify a downward durational departure.” Id. at
624-25. And, although the supreme court suggested that a downward durational departure
based on remorse is unusual, it did not sa y that remorse alone could never justify a
departure. Id. at 625-26. The sentencing court here nonetheless accurately described the
focus for remorse in the downward-durational-departure context as relating back to the date
of the offense. Because Willard did not pr esent any arguments relating to his remorse on
the day he committed the offense, the senten cing court properly de nied his departure
motion.
Finally, in his pro se brief, Willard argues this court should reduce his sentence. He
contends that a reduced sentence is warranted because he has no criminal background, has
had no incidents during his incarceration, and is not a threat to society. But Willard cites
no legal authority that would authorize this court to reduce his sentence on these grounds.
Because he does not provide any legal authority for his argument, the argument is forfeited
and we decline to address it. See State v. Krosch, 642 N.W.2d 713, 719-20 (Minn. 2002)
(providing that allegations ma de without argument or cita tion to legal authorities are
forfeited). Willard also argues that he co mmitted the offense unintentionally because he
mistook his stepdaughter for his wife. He did not raise this argument at the plea hearing,
and there was no mention of it when the district court was establishing the factual basis for
his offense. We generally do not consider i ssues not raised before the district court,
Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996), so this too is not a basis for us to reverse
the district court.

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In sum, the sentencing court did not abuse its discretion by denying Willard’s
downward-durational-departure motion, and the postconvic tion court likewise did not
abuse its discretion by denying his requested relief.
Affirmed.