State v. Bauerly, 520 N.W.2d 760 (Minn. Ct. App. 1994). · Go Syfert
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State v. Bauerly, 520 N.W.2d 760 (Minn. Ct. App. 1994). Cases Citing This Book View Copy Cite
54 citation events (52 in the last 25 years) across 4 distinct courts.
Strongest positive: State of Minnesota v. Samantha Dana Schroeder (minnctapp, 2024-06-10)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 20 distinct citers.
cited Cited as authority (rule) State of Minnesota v. Samantha Dana Schroeder
Minn. Ct. App. · 2024 · confidence medium
See State v. Dentz, 919 N.W.2d 97, 101 (Minn. App. 2018); State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994), rev. denied (Minn. Oct. 27, 1994).
discussed Cited as authority (rule) State v. Rund
Minn. · 2017 · confidence medium
See Solberg, 882 N.W.2d at 625-26 (discussing remorse); State v. Bauerly, 520 N.W.2d 760, 762 (Minn.App. 1994) (discussing remorse and age); Heywood, 338 N.W.2d at 244 (discussing particular amenability to probation).
examined Cited as authority (rule) State of Minnesota v. Abigail Rae Trulson (3×) also: Cited "see, e.g."
Minn. Ct. App. · 2016 · confidence medium
State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (stating that the imposition of a 365-day gross-misdemeanor sentence on a felony conviction is a downward durational departure), review denied (Minn. Oct. 27, 1994).
discussed Cited as authority (rule) State of Minnesota v. Harrison William Rund
Minn. Ct. App. · 2016 · confidence medium
State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (ruling that imposition of a 365-day gross-misdemeanor sentence on a felony theft conviction with a presumptive guidelines sentence of 366 days constituted a downward durational departure), review denied (Minn. Oct. 27, 1994).
discussed Cited as authority (rule) State of Minnesota v. Alonzo Crowder
Minn. Ct. App. · 2015 · confidence medium
In State v. Bauerly, we affirmed the district court’s use of remorse to help support a downward durational departure based on the seriousness of the offense. 520 N.W.2d 760, 762-63 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).
discussed Cited as authority (rule) State of Minnesota v. Krystal Elizabeth Alwin (2×)
Minn. Ct. App. · 2015 · confidence medium
In State v. Bauerly, this court ruled that the imposition of a 365-day gross-misdemeanor sentence on a felony conviction that carried a presumptive year-and-a-day sentence “is a durational departure rather than a dispositional departure.” 520 N.W.2d 760, 762 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).
discussed Cited as authority (rule) State of Minnesota v. Jacob Miles Solberg
Minn. Ct. App. · 2015 · confidence medium
State v. Bauerly, 520 N.W.2d 760, 762 (Minn.App.1994), review denied (Minn. Oct. 27, 1994); see also State v. McGee, 347 N.W.2d 802 , 806 n. 1 (Minn. 1984) (“[T]here may be cases in which the defendant’s lack of remorse could ... be considered as evidence bearing on a determination of the cruelty or seriousness of the conduct on which the conviction was based.”).
discussed Cited as authority (rule) State of Minnesota v. Misty Dawn Dyrdahl (2×) also: Cited "see, e.g."
Minn. Ct. App. · 2015 · confidence medium
State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (stating that gross-misdemeanor sentence imposed that was only one day less than presumptive felony sentence constituted a downward durational departure), review denied (Minn. Oct. 27, 1994).
discussed Cited as authority (rule) State of Minnesota v. Shannon Marie Kiesner
Minn. Ct. App. · 2015 · confidence medium
State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (stating that even though gross-misdemeanor sentence imposed was only one day less than presumptive felony sentence, imposed sentence was downward durational departure), review denied (Minn. Oct. 27, 1994).
discussed Cited as authority (rule) State of Minnesota v. Bradley James Schnickel (2×)
Minn. Ct. App. · 2015 · confidence medium
Respondent argues that remorse/acceptance of responsibility can be appropriately considered an offense-related factor, citing State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).
discussed Cited as authority (rule) State of Minnesota v. Leroy Lamar Morris
Minn. Ct. App. · 2015 · confidence medium
Specifically, this court affirmed a “minimal” downward durational departure based on the defendant’s remorse and the fact that the defendant’s theft offense was “significantly less serious than the typical offense.” Id. at 763 (quotation omitted).
examined Cited as authority (rule) State of Minnesota v. Leann Bobleter Sargent (4×) also: Cited "see"
Minn. Ct. App. · 2015 · confidence medium
Fourth, unlike in Bauerly, the district court’s downward durational departure in this case could hardly be called “minimal.” See id. at 763.
discussed Cited as authority (rule) Kaitlyn Lucretia Ritcherson v. State
Tex. App. · 2015 · confidence medium
See McMahon v. State, 582 S.W.2d 786, 791 (Tex.Cr.App. 1978); People v. Watts, 165 P.3d 707, 713 (Colo.App. 2006); People v. Vanhoesen, 3 A.D.3d 787 , 771 N.Y.S.2d 730 (N.Y. 3d Dept. 2004); State v. Bauerly, 520 N.W.2d 760, 762 (Minn.App. 1994); State v. Constantine, 588 A.2d 294, 296 (Me. 1991); and, People v. Allen, 158 Mich. App. 472, 478 , 404 N.W.2d 266 (1987). c.
discussed Cited as authority (rule) State v. Peter (2×) also: Cited "see"
Minn. Ct. App. · 2012 · confidence medium
On the other hand, offense-related aggravating factors may be used to support not only such a dispositional departure but, alternatively, an upward durational departure.”); State v. Cermak, 350 N.W.2d 328, 335 (Minn.1984) (holding that likelihood of future criminal behavior is not valid reason for durational departure); State v. Back, 341 N.W.2d 273, 275 (Minn.1983) (holding that post-offense remorse is not appropriate factor for durational departure); State v. Bauerly, 520 N.W.2d 760, 762 (Minn.App.1994) (holding that age and lack of a felony record are not valid bases for dura-tional depar…
discussed Cited as authority (rule) Dillon v. State
Minn. Ct. App. · 2010 · confidence medium
In State v. Bauerly, this court stated that lack of remorse is relevant to a dispositional departure because it generally bear's on the defendant’s amenability to probation. 520 N.W.2d 760, 762 (Minn.App.1994), review denied (Minn. Oct. 27, 1994).
discussed Cited as authority (rule) State v. Vahabi
Minn. Ct. App. · 1995 · signal: cf. · confidence medium
Cf. State v. Bauerly, 520 N.W.2d 760, 762 (Minn.App.1994) (one year gross misdemeanor sentence, although only one day less than presumptive year-and-a-day felony sentence, was sentencing departure), pet. for rev. denied (Minn. Oct. 27, 1994).
discussed Cited "see" State of Minnesota v. Parnard Smith, Jr. (2×) also: Cited "see, e.g."
Minn. Ct. App. · 2015 · signal: see · confidence high
See State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (stating that amenability to probation is relevant to dispositional departures), review denied (Minn. Oct. 27, 1994).
discussed Cited "see" State of Minnesota v. Hope Marie Carlson
Minn. Ct. App. · 2015 · signal: see · confidence high
See State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (holding that a year-long sentence for an offense that called for a presumptive sentence of a year and a day was a durational departure), review denied (Minn. Oct. 27, 1994).
discussed Cited "see" State of Minnesota v. David Edward Westgard (2×)
Minn. Ct. App. · 2014 · signal: see · confidence high
See State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (holding that pronouncing a year-long sentence for an offense that carried a presumptive sentence of a year and a day is a durational departure), review denied (Minn. Oct. 27, 1994).
discussed Cited "see, e.g." State of Minnesota v. Adam Wallace Jaunich
Minn. Ct. App. · 2016 · signal: see also · confidence medium
State v. Peter, 825 N.W.2d 126, 130-31 (Minn. App. 2012), review denied (Minn. Feb. 27, 2013); see also State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (ruling that imposition of a 365-day gross- misdemeanor sentence on a felony theft conviction with a presumptive guidelines sentence of 366 days constituted a downward durational departure), review denied (Minn. Oct. 27, 1994).
STATE of Minnesota, Appellant,
v.
Jody Ann BAUERLY, Respondent
C4-94-819.
Court of Appeals of Minnesota.
Aug 30, 1994.
520 N.W.2d 760
Hubert H. Humphrey, III, Atty. Gen., St. Paul, and Roger S. Van Heel, Stearns County Atty., Mary Yunker, Asst. County Atty., St. Cloud, for appellant., John Stuart, State Public Defender, Leslie J. Rosenberg, Sp. Asst. State Public Defender, University of Minnesota, St. Paul, for respondent.
Davies, Lansing, Forsberg.
Cited by 21 opinions  |  Published

OPINION

FORSBERG, Judge.

The state appeals from a sentence imposed on respondent Jody Ann Bauerly for felony theft. Minn.Stat. § 609.52, subds. 2(1), 3(3)(a) (1992). We affirm.

FACTS

Respondent Jody Ann Bauerly pleaded guilty to one count of felony theft for stealing money from her employer, a St. Cloud Mu-sicland store. Bauerly admitted that she had been taking cash refunds and writing fictitious return slips from January 1993 to July 1993. The plea agreement called for Bauerly to plead guilty to the felony theft as charged[*762] and receive a stay of imposition with a cap of 15 days on probationary jail time. The pre-sentence investigation (PSI) noted that the presumptive sentence for a defendant with Bauerly’s criminal history score of zero was a stayed sentence of a year and a day. The PSI recommended a stay of imposition, with 10 days of probationary jail time.

At the sentencing hearing, the prosecutor supported the recommendation in the PSI, noting it was within the terms of the plea agreement. Defense counsel expressed a concern that Bauerly should not acquire a felony record. The court discussed either sentencing Bauerly to a stay of imposition or giving her a sentence within the limits for a gross misdemeanor. The prosecutor objected to sentencing the offense as a gross misdemeanor and stated that would be a downward departure requiring grounds for departure. The court continued the sentencing to allow the parties to prepare arguments on a downward departure.

At the second sentencing hearing, the court stated it didn’t think Bauerly should have a felony record because of the offense. The court sentenced Bauerly to a suspended term of one year, with conditions of probation. In a sentencing order filed later, the court cited a number of reasons for the departure, including Bauerly’s age, remorse, lack of a prior record, and willingness to assume responsibility for the offense.

ISSUE

Did the district court abuse its discretion in departing from the presumptive sentence?

ANALYSIS

The state argues that the district court abused its discretion in departing from the presumptive sentence. The decision to depart rests generally within the discretion of the district court and will not be reversed absent an abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).

The district court sentenced Bauerly to one year (execution stayed). Although this sentence is only one day less than Bauerly would have received under the presumptive felony sentence of a year and a day, it is a sentencing departure. State v. Cizl, 304 N.W.2d 632, 634 (Minn.1981) (citing Minn.Sent. Guidelines emt. II.C.05); see also State v. Johnson, 314 N.W.2d 229, 231 (Minn. 1982) (applying Cizl).

The district court may depart from the presumptive sentence only if aggravating or mitigating circumstances are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). We agree with the state that Bauerly’s age, one of the factors cited by the district court, would be relevant only to a dispositional departure. See, e.g., State v. Trog, 323 N.W.2d 28, 31 (Minn.1982). The departure in this case, however, is a dura-tional departure rather than a dispositional departure. The court stayed Bauerly’s sentence, which was the presumptive disposition. We also agree with the state that Bauerly’s lack of a felony record was already considered in determining the presumptive sentence and is not a proper grounds for departure. Cizl, 304 N.W.2d at 634.

The district court also cited as grounds for departure Bauerly’s remorse and the fact that the amount of the theft barely exceeded the $500 threshold for felony theft.

Remorse, or lack of remorse, generally bears on the defendant’s amenability to probation, and is relevant to a dispositional departure. State v. Back, 341 N.W.2d 273, 275 (Minn.1983). But,

there may be cases in which the defendant’s lack of remorse could relate back and be considered as evidence bearing on a determination of the cruelty or seriousness of the conduct on which the conviction is based.

State v. McGee, 347 N.W.2d 802, 806 n. 1 (1984). As this comment indicates, remorse or lack of remorse is most relevant in sentencing for crimes against the person or crimes affecting the safety of others. See id. at 806 (defendant convicted of criminal negligence resulting in death had driven away from scene). Lack of remorse may be considered, however, in departing on a property offense. See State v. Fett, 414 N.W.2d 783, 784 (Minn.App.1987) (noting defendant’s lack of remorse for swindling 80-year-old victim in support of dispositional departure), pet. for [*763] rev. denied (Minn. Dec. 22, 1987). The district court properly considered Bauerly’s remorse as relating back to the seriousness of her offense, and helping to support the downward durational departure.

The complaint charged Bauerly with stealing $671 from Musicland, a figure later changed to $854 in the request for restitution. The state argues that the $670-850 range of loss involved here is not “substantially” or “significantly” less than that involved in the typical Severity Level III felony theft, and therefore does not support the departure.

The value of the property Bauerly stole is a relevant factor to consider in a durational departure. See State v. Myers, 416 N.W.2d 736, 738 (Minn.1987) (upward departure was proper where defendant possessed stolen property valued at $100,000, which was 40 times the minimum amount). The test is whether the value of the property is “substantially or significantly more than that involved in the typical case” of Severity Level III felony theft. Best, 449 N.W.2d at 427 (emphasis in original) (involving departure for aggravated criminal damage to property).

The range of monetary value for Severity Level III theft extends only from $500 to $2,500. See Minn.Stat. § 609.52, subd. 3(3)(a); Minn.Sent. Guidelines V (Offense Severity Reference Table). This limited range leaves no room for a difference in value as dramatic as in Myers or similar eases involving upward departures. See, e.g., State v. Harstad, 397 N.W.2d 419, 421-22 (Minn.App. 1986) (upward departure where thefts exceeded $130,000). We believe, however, that there should be some room for mitigation of felony thefts such as Bauerly’s. The legislature has determined that $500 is an amount sufficiently significant that a theft in that amount is treated as a felony offense. We conclude on the facts of this case that Bauerly’s offense, a theft which is more than $500 below the mid-range for a Severity Level III theft, is “significantly” less serious than the typical offense.

Bauerly’s remorse and the significantly lower amount of property involved adequately support the minimal downward departure imposed. Therefore, we need not consider the other factors cited by the district court, or the state’s assertion that the court imper-missibly relied on its own disagreement with the sentencing guidelines in departing. See Williams v. State, 361 N.W.2d 840, 844 (Minn.1985) (departure will be affirmed, despite improper reasons, if record adequately supports departure).

Bauerly has moved for an award of attorney fees incurred in responding to this appeal. A defendant is entitled to reasonable attorney fees in responding to a pretrial appeal. Minn.R.Crim.P. 28.04, subd. 2(6). The same rule now applies in postconviction appeals filed by the state. Minn.R.Crim.P. 28.04, subd. 6(3). There is no provision, however, for an award of attorney fees in sentencing appeals. See Minn.R.Crim.P. 28.05. Bauerly’s motion for attorney fees is denied.

DECISION

The district court did not abuse its discretion in imposing a downward durational departure.

Affirmed.