This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1130

State of Minnesota,

Appellant,

vs.

Leann Bobleter Sargent,

Respondent.

Filed February 17, 2015

Reversed and remanded

Hooten, Judge

Hennepin County District Court

File No. 27-CR-13-3314

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County 

Attorney, Minneapolis, Minnesota (for appellant)

Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Rodenberg, Judge; and Kirk, 

Judge. 

U N P U B L I S H E D O P I N I O N

HOOTEN, Judge

In this sentencing appeal, the state challenges the district court’s decision to grant 

respondent a downward durational departure. Because the district court’s stated reasons
2

for the departure are improper and there is insufficient evidence in the record to justify 

the departure, the district court abused its discretion. We therefore reverse and remand.

FACTS

These facts are based primarily on the complaint. Respondent Leann Bobleter 

Sargent is the daughter of R.B. (decedent). From 2008 until decedent’s death in 2012, 

Sargent held various fiduciary positions on behalf of decedent. She was the co-trustee of 

decedent’s trust and held a power of attorney for decedent. Pursuant to the power of 

attorney, Sargent was permitted to conduct transactions on decedent’s behalf involving

decedent’s real estate, personal property, bank accounts, and credit cards.

Decedent suffered from chronic kidney disease. After a hospitalization in January 

2010, he moved into Sargent’s home in Maple Grove and lived with her until his death in 

March 2012 at the age of 84. In November 2010, Sargent and decedent executed a 

personal care agreement and a room and board agreement, under which Sargent agreed to 

provide decedent with room, board, transportation, and other basic living needs in 

exchange for payment of a total of $2,000 per month. The total amount Sargent was 

entitled to under these agreements for the entire period of her caregiving was $24,000.

After decedent’s death, Sargent’s brother discovered that decedent’s bank 

accounts were nearly empty. An investigation commenced which revealed that Sargent 

had withdrawn significant amounts of money from decedent’s accounts beyond what was 

allowed under her agreements with decedent, and that she had used those funds for her 

own personal benefit, not for decedent’s. The complaint alleges that, between April 2011 

and March 2012, Sargent withdrew from decedent’s checking account, and charged to his 
3

credit cards, approximately $73,348 in excess of the amount she was entitled to under the 

agreements.

Shortly before decedent’s death, Sargent used the power of attorney to orchestrate 

a real-estate transaction regarding decedent’s cabin, which was unencumbered, and his

townhouse, which was encumbered by a mortgage. Under decedent’s will, the cabin was 

to be divided equally between Sargent and her brother upon decedent’s death, while the 

townhouse was to pass to Sargent alone. On February 29, 2012, Sargent took out a 

$58,000 mortgage on the cabin. She used $38,836.37 from the new mortgage to satisfy 

the outstanding mortgage on the townhouse, which she inherited shortly thereafter. After 

decedent’s death, Sargent’s brother was forced to assume mortgage payments on the 

cabin in the amount of $587.22 per month.

In January 2013, Sargent was charged with one count of financial exploitation of a 

vulnerable adult (over $35,000), in violation of Minn. Stat. §§ 609.2335, subd. 1(1)(ii), 

.52, subd. 3(1) (2010). A pre-plea investigation report (PPI) indicated that Sargent’s 

offense had a severity level of seven, her criminal history score was zero, and the 

presumptive sentence under the Minnesota Sentencing Guidelines was a stayed sentence

of 36 months in prison. The PPI recommended a stay of imposition with a probationary 

period of 20 years.

A plea hearing was held in February 2014. At the commencement of the hearing, 

the district court described an off-the-record discussion with the prosecutor and Sargent’s 

defense counsel about the sentence that would be imposed if Sargent were to enter a plea. 

The district court explained to Sargent that, during this off-the-record discussion, it had 
4

advised Sargent’s defense counsel that it would strongly consider imposing a stay of 

imposition and that Sargent could withdraw her plea and proceed to trial if it decided to 

sentence her “to anything other than a stay of imposition.”

With this explanation, Sargent pleaded guilty to the sole count in the complaint, 

noting that she planned to request a downward departure to a gross misdemeanor 

sentence. Defense counsel and the prosecutor established a factual basis for the offense.

Sargent acknowledged that decedent was a vulnerable adult during the relevant time 

period; she held a power of attorney for decedent; she intentionally took decedent’s

money for her own benefit and without his permission, in excess of $35,000; she had 

access to decedent’s accounts and credit cards; she used decedent’s money to purchase a 

number of items unrelated to decedent’s care; and she wrote herself a number of checks 

from decedent’s account for her own benefit. The district court determined that there was 

a sufficient factual basis to support a finding of guilt beyond a reasonable doubt. 

However, the district court deferred accepting Sargent’s plea until sentencing, stating,

“As I have told you, if I don’t sentence you consistently with what I manifested to 

[c]ounsel[,] I will allow you to withdraw your plea.”

Prior to sentencing, Sargent moved for a downward departure to a gross 

misdemeanor sentence. The state had previously moved for an upward durational 

departure, arguing that Sargent’s offense was a “major economic offense” under 

Minnesota Sentencing Guidelines II.D.2.b(4) (2010).

1

 However, in its sentencing

 

1 Although throughout this opinion we cite to the 2010 version of the Minnesota 

Sentencing Guidelines, which was in effect at the time Sargent’s offense began, we note 
5

memorandum submitted after the plea hearing, the state instead argued that the district 

court should impose the presumptive guidelines sentence, not a gross misdemeanor 

sentence, because “the nature of her offense is more, not less serious, than the typical 

charge of [f]inancial [e]xploitation of a [v]ulnerable [adult].” The state opposed a stay of 

imposition, pointing to Sargent’s alleged history of similar financial misconduct, the 

lengthy time period involved in this offense, Sargent’s abuse of her fiduciary position, 

and the fact that her financial exploitation of decedent “involved many, many 

transactions [and] a sum well over the statutory minimum of $35,000.” The state argued

that Sargent’s offense constituted a “major economic offense” and that grossmisdemeanor sentencing was not appropriate.

A sentencing hearing was held in April 2014. The prosecutor argued for the 

guidelines sentence. In responding to Sargent’s request for a gross misdemeanor 

sentence, the prosecutor noted that “offender characteristics cannot be used under our law 

as a basis for that type of departure”, and that the type of departure requested by Sargent 

could only be based upon offense characteristics. Sargent made several arguments in 

support of her motion for a downward departure: she had accepted responsibility for her 

offense, she was amenable to probation, she had no prior criminal record, she was 

significantly involved in her community, and she was elderly and in poor health. Sargent

also argued that, with a felony conviction on her record, “she [would] lose her job on the 

[Maple Grove City Council],” she would lose her sales job, and she would lose her 

 

that there were no substantive revisions to the applicable guidelines during the entire 

period of her offense.
6

housing. Sargent noted that financial exploitation was not a crime of violence, but was a 

property crime. She also emphasized that she did “a lot of things for [decedent] that most 

people wouldn’t do for their parents, . . . feeding him, taking him to all his appointments, 

. . . [and] showering and cleaning him.” Finally, Sargent noted that she planned to object 

to the anticipated amount of restitution, which was significantly higher than the statutory 

minimum of $35,000. She argued that the actual “extent of the financial exploitation,” 

determined at a restitution hearing, would “weigh in on the seriousness” of the offense.

Before pronouncing its sentence, the district court acknowledged that, if it 

imposed a felony sentence, then Sargent might lose her city council job, which would 

impede her ability to pay restitution. Ultimately, the district court imposed a gross

misdemeanor sentence of 365 days, with a stayed execution of two years.

2

 The district 

court seemed to base the downward departure on Sargent’s ability to pay restitution, her 

lack of a criminal record, and her amenability to probation. It stated that the sentence 

“constitutes what I see as a dispositional departure, while it’s simply durational[.] The 

. . . specific reason[] for the departure [is] my finding of amenability to probation.” On 

the departure report, the district court indicated that Sargent had received a dispositional 

departure and checked only one box in support of the departure: “Amenable to

probation.” The district court ordered Sargent to pay restitution of $107,348 to 

decedent’s estate, $12,918.84 to her brother (for the mortgage payments he had already 

 

2

The district court orally imposed a probationary period of five years, but later corrected 

it to two years, consistent with a gross misdemeanor sentence. See Minn. Stat. § 609.135, 

subd. 2(c) (2010). Because we reverse and remand on other grounds, we do not need to 

address the state’s argument that the district court’s oral sentence was illegal.
7

made), and $587.22 per month (for future mortgage payments). According to the 

restitution order, Sargent had one year to pay the entire amount of restitution in full. She 

entered into a payment agreement, in which she agreed to pay $78 per month. This 

appeal followed.

D E C I S I O N

We review a district court’s decision to depart from the sentencing guidelines for 

an abuse of discretion. State v. Peter, 825 N.W.2d 126, 129 (Minn. App. 2012), review 

denied (Minn. Feb. 27, 2013). A guidelines sentence is “presumed to be appropriate,” 

and the district court “shall” impose it unless there are “identifiable, substantial, and 

compelling circumstances” that support a different sentence. Minn. Sent. Guidelines II.D 

(2010); see State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (“[A] sentencing court has 

no discretion to depart from the sentencing guidelines unless aggravating or mitigating 

factors are present.”). Identifiable, substantial, and compelling circumstances “are those 

that make the case atypical.” Peter, 825 N.W.2d at 129.

Sargent pleaded guilty to the felony-level offense of financial exploitation of a 

vulnerable adult. The sentencing guidelines provided for a presumptive stayed prison 

sentence of 36 months. See Minn. Sent. Guidelines IV–V (2010). This is a felony 

sentence. See Minn. Stat. § 609.02, subd. 2 (2010) (“‘Felony’ means a crime for which a 

sentence of imprisonment for more than one year may be imposed.”). The district court 

sentenced Sargent to 365 days in jail, with a stayed execution of 245 days for a period of 

two years. This is a gross misdemeanor sentence. See Minn. Stat. §§ 609.02, subds. 2–4 

(2010) (defining a gross misdemeanor as a crime with a sentence between 91 and 365 
8

days in local jail), .135, subd. 2(c) (providing that a probationary stay for a gross

misdemeanor “shall be for not more than two years”); see also Minn. Stat § 609.13 

(2010) (providing that, if a defendant is convicted of a felony but a gross misdemeanor 

sentence is imposed, “the conviction is deemed to be for a . . . gross misdemeanor”). 

Because the presumptive sentence was a stayed sentence, the district court 

mischaracterized the departure as a downward dispositional departure, both on the record 

and in the departure report. In fact, it is a downward durational departure because the 

duration of Sargent’s sentence was reduced by two-thirds, while the disposition of a

stayed sentence was unchanged. See State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 

1994) (holding that a year-long sentence for an offense that carried a presumptive 

sentence of a year and a day is a downward durational departure), review denied (Minn. 

Oct. 27, 1994).

In 1985, the Minnesota Supreme Court prospectively adopted the following 

general rules governing when a district court’s sentencing departure may be affirmed or 

reversed:

1. If no reasons for departure are stated on the record at 

the time of sentencing, no departure will be allowed.

2. If reasons supporting the departure are stated, [the 

reviewing] court will examine the record to determine 

if the reasons given justify the departure.

3. If the reasons given justify the departure, the departure 

will be allowed.

4. If the reasons given are improper or inadequate, but 

there is sufficient evidence in the record to justify [the] 

departure, the departure will be affirmed.

5. If the reasons given are improper or inadequate and 

there is insufficient evidence of record to justify the 

departure, the departure will be reversed.
9

Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

Here, the district court gave reasons for its departure, both on the record and in the 

departure report. At the sentencing hearing, the district court cited three offender-related 

factors to justify the downward departure: facilitating Sargent’s ability to pay restitution 

by ensuring that she could maintain her city council position, her lack of a criminal 

record, and her amenability to probation. The district court also stated, “The . . . specific 

reason[] for the departure [is] my finding of amenability to probation.” On the departure 

report, the district court checked only one box as the reason for its departure: “Amenable 

to probation.” The district court did not check the boxes, “Crime less onerous than 

usual,” “Major economic offense,” or “Shows remorse/accepts responsibility.”

While offender-related factors such as those cited by the district court may support

a dispositional departure, “[c]aselaw is settled that offender-related factors do not support 

durational departures.” Peter, 825 N.W.2d at 130. Calling a durational departure 

“dispositional” cannot overcome “this limitation.” Id. Instead, “[r]equests for durational 

departures require the district court to consider whether the conduct involved in the 

offense of conviction was significantly more or less serious than the typical conduct for 

that crime.” Id. In other words, a district court must consider only offense-related 

factors, rather than offender-related factors, when deciding a request for a durational 

departure. Here, the district court erred by basing the downward durational departure 

solely on offender-related factors, rather than offense-related factors.
10

In fact, we note that all of the district court’s stated reasons for the departure are 

improper or inadequate even for a dispositional departure. First, “ensur[ing] payment of 

restitution” is not a valid reason for a departure. State v. Vahabi, 529 N.W.2d 359, 361 

(Minn. App. 1995); see State v. Staten, 390 N.W.2d 914, 916 (Minn. App. 1986) (holding 

that employment factors should not be used as reasons for departure); see also Minn. 

Sent. Guidelines cmt. II.D.101 (2010) (stating that potential impact on employment 

cannot support a departure from a guidelines sentence because employment is “highly 

correlated with sex, race, or income levels”). We also note that, by imposing a gross 

misdemeanor sentence with a probationary period of two years, and signing a restitution 

order that required Sargent to pay restitution of only $78 per month, the district court 

sabotaged its own goal of ensuring Sargent’s payment of restitution in an amount 

exceeding $120,000.

Second, a defendant’s lack of a criminal record is irrelevant to a departure because 

that fact is already taken into account in determining the guidelines sentence. Bauerly, 

520 N.W.2d at 762; see Minn. Sent. Guidelines IV. Sargent’s criminal history score of 

zero is what made this a presumptively stayed sentence in the first place. Third, the 

Minnesota Supreme Court has “never said that merely being amenable to probation—as 

opposed to being particularly amenable to probation—can justify staying a 

presumptively executed sentence.” State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). 

“By requiring a defendant to be particularly amenable to probation, . . . we ensure that 

the defendant’s amenability to probation distinguishes the defendant from most others 

and truly presents the substantial . . . and compelling circumstances that are necessary to 
11

justify a departure.” Id. at 309 (quotation omitted). There was no finding by the district 

court that Sargent was particularly amenable to probation and that such amenability 

constituted a substantial and compelling circumstance justifying the departure.

“If the reasons given are improper or inadequate, but there is sufficient evidence in 

the record to justify [the] departure, the departure will be affirmed.” Williams, 361 

N.W.2d at 844. We will affirm the district court’s downward durational departure only if

there is sufficient evidence in the record demonstrating that Sargent’s conduct in 

committing her offense “was significantly . . . less serious than the typical conduct for 

that crime.” See Peter, 825 N.W.2d at 130.

At the sentencing hearing, Sargent made several arguments on behalf of her 

requested downward departure, a self-described “laundry list” of offender-related factors:

1. acceptance of responsibility;

2. amenability to probation;

3. lack of a criminal record;

4. significant community involvement;

5. “because of this felony she will lose her job on the 

council,” she will lose her sales job, and she will lose 

her housing;

6. old age; and

7. poor health.

None of these offender-related factors justify the district court’s downward durational 

departure. See id.

On appeal, Sargent also argues that she is “extremely remorseful for her actions” 

and that, under Bauerly, remorse coupled with other factors can sometimes support a 

downward durational departure. “As a general rule, a defendant’s remorse bears only on 

a decision whether or not to depart dispositionally, not on a decision to depart 
12

durationally . . . .” State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). “However, 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 was based.” State v. McGee, 347 N.W.2d 802, 806 n.1 

(Minn. 1984). In other words, remorse or lack of remorse is only relevant to a durational 

departure to the extent it sheds light on the seriousness of the defendant’s conduct in 

committing the crime. See Bauerly, 520 N.W.2d at 762–63 (affirming 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” 

(quotation omitted)).

Sargent’s argument fails for four reasons. First, the district court did not 

specifically find—either at the sentencing hearing or in the departure report—that 

Sargent showed remorse. Second, there is no indication that Sargent’s alleged remorse 

relates back to the severity of her offense. We fail to see how her alleged remorse at the 

time of sentencing—after she had been charged and had pleaded guilty—renders her 

conduct at the time of the offense any less serious. Third, this court has never held that

remorse alone is sufficient to support a downward durational departure, see id., and 

Sargent has not demonstrated that any other substantial and compelling factors justify the 

departure. Fourth, unlike in Bauerly, the district court’s downward durational departure

in this case could hardly be called “minimal.” See id. at 763.

While Sargent’s arguments at the sentencing hearing focused mostly on offenderrelated factors, she did touch on offense-related factors. Her arguments are unpersuasive, 
13

however, because nothing in the record indicates that her conduct was significantly less 

serious than the typical conduct involved in the felony-level offense of financial 

exploitation of a vulnerable adult. First, the nature of the offense as a property crime says 

nothing about the seriousness of Sargent’s conduct because every crime of this type is a 

property crime. Next, Sargent’s argument that the extent of her personal care and 

assistance to her father should somehow mitigate the gravity of her lengthy and wellplanned financial exploitation rings hollow. Nonetheless, she repeats this same argument

on appeal and expands upon it:

It is not disputed that [Sargent] was the sole caregiver for her 

ailing father during the final year of his life and that she had 

to put her life on hold for him, which made it very difficult 

for her to continue in her real estate career. Additionally, 

[Sargent] acknowledged that she felt entitled to some of the 

monies as compensation for her time in caring for him, and 

she also contended that her father did give permission to her 

use of some of the monies even though she did not have any 

proof.

These rationales simply do not mitigate Sargent’s culpability. As her father’s live-in 

caregiver, she was contractually entitled to $2,000 per month for her care, and she 

received this money. She was entitled to nothing more.

Finally, Sargent points to the extent of the restitution in this case, and she is

correct that the amount of loss is relevant to the seriousness of her offense. See id. at 763 

(noting that, in a felony-theft case, “[t]he value of the property [the defendant] stole is a 

relevant factor to consider in a durational departure”). However, in this case, the district 

court ordered restitution in an amount over $120,000, in addition to the monthly 

mortgage payment. This represents almost three-and-a-half times the minimum offense 
14

amount of $35,000. See Minn. Stat. § 609.52, subd. 3(1). Given the substantial amount 

of restitution ordered in this case, we cannot conclude that Sargent’s conduct was

significantly less serious than the typical conduct for this offense, as is required for a 

downward durational departure. See Peter, 825 N.W.2d at 130.

In fact, throughout this case, the state has argued that Sargent’s conduct was more

serious than in the typical case. The state summarizes these arguments on appeal: 

“[Sargent] exploited her father’s vulnerability and used a position of trust to steal money 

from his estate for her personal gain. . . . [H]er crime was not a momentary impulse. It 

was a well-planned, deliberate assault on her father’s financial legacy.” The state also 

argues that a gross misdemeanor sentence “is in no way proportionate to the severity of 

[Sargent’s] crime” because she stole over 100 times the statutory limit for a gross 

misdemeanor offense. See Minn. Stat. § 609.52, subd. 3(4) (defining gross misdemeanor 

theft as stealing between $501 and $1000). We find the state’s arguments persuasive. 

Sargent’s argument that “[t]he district court’s sentence severely punishes [her] for her 

actions” is unpersuasive.

The district court strongly suggested that it found Sargent’s conduct was not 

significantly less serious for this type of crime. At the sentencing hearing, the district 

court acknowledged the seriousness of her conduct: “If I [order a felony sentence], I’d be 

accomplishing one goal, which is an accounting of the type of offense that was 
15

perpetrated here, an offense that took a long time to commit, an offense that required 

scienter, a mental disposition, a planning, an orchestration.”3 (Emphasis added.)

The record demonstrates that Sargent’s conduct was not significantly less serious 

than the conduct involved in the typical felony-level offense of financial exploitation of a 

vulnerable adult. Because there are no identifiable, substantial, and compelling 

circumstances that justify a downward durational departure in this case, the district court 

abused its discretion in granting the departure. We reverse Sargent’s gross misdemeanor 

sentence and remand for resentencing consistent with this decision.

4

Reversed and remanded.

 

3 Despite this acknowledgement, the district court seemed very concerned about the 

potential job ramifications of ordering a felony sentence. After pronouncing the gross 

misdemeanor sentence, the district court acknowledged that allowing Sargent to keep her 

job on the city council, which would facilitate her ability to pay restitution, was part of its 

sentencing rationale. The state argues on appeal that, while “[t]he district court’s 

decision was likely well intended,” the downward departure “creates the impression that 

public officials who engage in criminal behavior get special treatment in the justice 

system.” We agree with the state’s concern and are mindful of the need for the 

appearance of fairness in the criminal justice system. Cf. Offutt v. United States, 348 

U.S. 11, 14, 75 S. Ct. 11, 13 (1954) (“[J]ustice must satisfy the appearance of justice.”).

4 We note that, if on remand the district court orders a stay of imposition, this would not 

be a sentencing departure. See Minn. Sent. Guidelines cmt. III.A.101 (2010).