State v. Ostrander

383 N.W.2d 723, 1986 Minn. App. LEXIS 4132

Opinion

OPINION

RANDALL, Judge.

This sentencing appeal challenges the upward departure given appellant Conrad Os-trander following his conviction for theft by swindle of an 89 year old victim of $31,000. We affirm.

FACTS

Around 1981 appellant was asked by Ethel Brand to do some home repairs. Appellant had previously done some work for her several years earlier. Brand was born in 1896. Brand paid appellant whenever he requested a check. By August 31, 1984, Brand had written a total of 174 checks to appellant totalling over $34,000. Appellant actually completed approximately $3,000 worth of work. Following appellant’s arrest he pleaded guilty to theft by swindle. Minn.Stat. § 609.52, subd. 2(4) (1984). With a severity level IV offense and a criminal history score of 4, the presumptive sentence was 25 months. The trial court sentenced appellant to 39 months imprisonment, an upward departure of 50%, and ordered appellant to pay restitution of $31,-000.

ISSUE

Was the upward departure justified by substantial and compelling circumstances?

ANALYSIS

The trial court departed because the victim was particularly vulnerable due to her advanced age (Minnesota Sentencing Guidelines II.D.2.b.(l)) and because the offense was a major economic offense (Minnesota Sentencing Guidelines II.D.2.b.(4)). The trial court did not abuse its discretion and its departure was justified by the reasons given. See State v. Finnbraaten, 363 N.W.2d 473 (Minn.Ct.App.1985), pet. for rev. denied (Minn. April 18, 1985), where this court upheld a triple departure for theft by swindle by a handyman of a 97 year old victim of $100,000.

DECISION

The upward departure was justified by the facts; the trial court did not abuse its discretion.

Affirmed.