State v. O'BRIEN

429 N.W.2d 293, 1988 Minn. App. LEXIS 911, 1988 WL 97932
CourtCourt of Appeals of Minnesota
DecidedSeptember 27, 1988
DocketC6-88-1025
StatusPublished
Cited by3 cases

This text of 429 N.W.2d 293 (State v. O'BRIEN) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. O'BRIEN, 429 N.W.2d 293, 1988 Minn. App. LEXIS 911, 1988 WL 97932 (Mich. Ct. App. 1988).

Opinions

OPINION

HUSPENI, Judge.

In Dakota County District Court, Michael Sean O’Brien was charged with, and pleaded guilty to, a total of six counts of theft by swindle in violation of Minn.Stat. § 609.52, subds. 2(4) and 3(1) (1986). O’Brien was convicted and sentenced to concurrent terms of 18 months, 21 months, 25 months, 32 months, 41 months and 81 months. O’Brien appeals his sentence. We affirm.

[295]*295FACTS

In November 1986, O’Brien proposed a business venture to Bruce Campbell whereby he would purchase used vehicles from a dealership in Missouri and re-sell them in the Twin Cities for a profit. Campbell’s parents gave him $8,000 to invest in “Allied Leasing,” which he in turn gave to O’Brien on December 3, 1986, in the form of a check. On December 12, 1986, Campbell wrote a second check for $3,000 to O’Brien to be used for the same business.

On December 16, 1986, Wilmet Campbell (Bruce’s father) wrote a check for $40,000, and again on January 9, 1987, another for $40,000 to O’Brien. The total amount swindled from these two men was $91,000, and these four checks comprise four separate counts of theft by swindle in File No. C-7613.

O’Brien took one of the $40,000 checks to First Bank Minnesota in Burnsville, the bank the check was drawn on, and he received three $10,000 cashier’s checks, a $5,000 cashier’s check payable to himself and $5,000 in cash. O’Brien went to Las Vegas and cashed the three $10,000 checks, returned to Minnesota to that same bank and reported the three $10,000 checks stolen. The bank issued three more cashier’s checks for $10,000 each, thus losing $30,-000 to O’Brien. This incident was the basis for one count of theft by swindle in File No. C-7657.

At this same time O’Brien approached Steven Kruger with the same auto leasing scheme. Kruger wrote a $15,000 check to O’Brien. O’Brien gave Kruger four $10,-000 checks drawn on the account of Kenneth Doemamen. All were returned for insufficient funds. On February 4, 1987, Kruger wrote O’Brien an additional check for $7,500 and O’Brien cashed it at a Las Vegas casino on February 9,1987. Kruger also wrote two checks for $760 and $685 to cover supposed “title fees” and “driver fees.” These actions form the basis of one count of theft by swindle, File No. C-7657.

At the sentencing hearing, O’Brien’s motion to withdraw his guilty plea was denied. A clinical psychologist testified for the defense, recommending that O’Brien be placed on probation so that he could receive long-term treatment for his compulsive and pathological gambling.

The court used the Hernandez method of sentencing and imposed concurrent terms of 18 months, 21 months, 25 months, 32 months, 41 months and 82 months on the six counts. The 82-month sentence was a double departure of the final sentence imposed based on an offense severity level of 4 and a criminal history score of 7. O’Brien appeals the sentence.

ISSUES

1. Was the sentence supported by substantial and compelling reasons justifying an upward durational departure?

2. Did the imposition of six separate felony counts, combined with the Hernandez method of sentencing, result in an unfair sentence?

ANALYSIS

I.

A trial court has broad discretion to depart from the presumptive sentence, and an appeals court will generally not interfere with an exercise of that discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981). However, the trial court is obligated to review the facts of the case for possible mitigating circumstances and should depart downward when those circumstances are substantial and compelling. See State v. Curtiss, 353 N.W.2d 262, 264 (Minn.Ct.App.1984).

O’Brien claims that he is entitled to a downward dispositional departure because it would better serve society to allow him to be on probation so he could earn money to repay his victims. A clinical psychologist testified that O’Brien had a compulsive gambling disorder which could best be treated at Eden House, a community based program which is not a locked facility. However, he admitted that O’Brien had fled from authorities in the past and had never voluntarily enrolled in any treatment program for gambling disorders. Nothing in the psychologist’s testimony es[296]*296tablished a substantial and compelling reason to support a downward dispositional departure from the presumptive sentence.

Appellant also challenges the upward durational departure which was imposed by the trial court. Aggravating factors which may be considered in determining whether to depart durationally are:

(4) The offense was a major economic offense * * *. The presence of two or more of the circumstances listed below are aggravating factors with respect to the offense:
(a) the offense involved multiple victims or multiple incidents per victim;
(b) the offense involved an attempted or actual monetary loss substantially greater than the usual offense or substantially greater than the minimum loss specified in the statutes;
(c) the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time;

Guidelines II.D.103.2.b.(4)(a)-(c).

O’Brien was convicted of six separate incidents of theft, which constitute a major economic offense. These offenses involved multiple victims who lost substantially more than the amount involved in a usual offense, a total of $136,000. The offenses occurred over a lengthy period of time— December 1986 to February 1987.

Additionally, O’Brien’s swindle exhibited considerable sophistication and planning. He coordinated the cashing of his cashier’s checks, his flight to Las Vegas, and his story of their theft, thereby inducing the bank to reissue $30,000 more in cashier’s checks.

The last offense, the Kruger swindle, had sufficient aggravating factors of its own. Kruger wrote checks to O’Brien totaling $23,945. They were written for both large and small amounts from $15,000 to $685. O'Brien's request for these specific amounts created the illusion of a real deal because he asked for title and driver fees. Such careful planning shows that the offense was committed in a particularly serious way. See State v. Litzinger, 394 N.W.2d 803, 805-06 (Minn.1986).

We have already approved a double dura-tional departure for a major economic offense involving theft of $30,000 by false representation. Laughnan v. State, 404 N.W.2d 326 (Minn.Ct.App.1987), pet. for rev. denied (Minn. June 9,1987). This case involves theft by swindle and a similar rationale applies.

II.

Using the Hernandez sentencing method, each of the six counts to which O’Brien pleaded guilty added a criminal history point for each sentence. See State v. Hernandez, 311 N.W.2d 478, 481 (Minn.1981). O’Brien claims that the four counts in File No. C-7613, the swindle involving Bruce and Wilmet Campbell, should have been charged as only one count.

The

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State v. O'BRIEN
429 N.W.2d 293 (Court of Appeals of Minnesota, 1988)

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Bluebook (online)
429 N.W.2d 293, 1988 Minn. App. LEXIS 911, 1988 WL 97932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-obrien-minnctapp-1988.