State of Minnesota, Respondent, vs. Karen Margaret Pernu, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1169

 

State of Minnesota,

Respondent,

 

vs.

 

Karen Margaret Pernu,

Appellant.

 

Filed January 27, 2004

Affirmed Willis, Judge

 

Wabasha County District Court

File No. K4-02-715

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

James C. Nordstrom, Wabasha County Attorney, Wabasha County Courthouse, 625 Jefferson Avenue, Wabasha, MN  55981 (for respondent)

 

Carl F. Anderson, Anderson Law Firm, 1812 Second Street SW, Suite B, Rochester, MN  55902 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Anderson, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the upward dispositional departure from the presumptive guidelines sentence for her conviction of theft by swindle.  Because the district court did not abuse its discretion, we affirm.

FACTS

Appellant Karen Margaret Pernu worked as secretary and bookkeeper for the DeVaughn Law Office in Plainview from November 1995 until November 2002.  During that time, she wrote to herself at least $124,000 in firm checks and entered the amounts in the firm's bookkeeping system as business expenses.  Her employer, Donald DeVaughn, discovered the scheme in November 2002 while Pernu was on maternity leave and DeVaughn was handling the bookkeeping himself.  When Pernu returned, DeVaughn questioned her regarding what he had discovered.  At first she denied any wrongdoing, but when DeVaughn showed her a stack of checks that she had written to herself, Pernu admitted to stealing the funds.  She also admitted to DeVaughn that she took money from his client trust account, but she said that she had repaid those funds with money she borrowed from her father.

            DeVaughn reported the theft to the police, and Pernu was charged with one count of theft by taking in violation of Minn. Stat. § 609.52, subds. 2(1), 3(2) (2002), and one count of theft by swindle in violation of Minn. Stat. § 609.52, subds. 2(4), 3(1) (2002).  Pernu agreed to plead guilty to the theft-by-swindle charge and the state agreed to drop the theft-by-taking charge and not to ask the district court for an upward departure in sentencing.  Because Pernu had a criminal history score of zero, the presumptive sentence for theft by swindle was 21 months, stayed. 

At a hearing on April 23, 2003, the district court accepted Pernu's guilty plea and ordered a pre-sentence investigation (PSI).  The PSI report stated that (1) Pernu was married with three young children; (2) Pernu's husband did not work because of a disability, and Pernu suffered from depression; (3) Pernu had paid back approximately $40,000 of the money she had stolen, but she had spent the remaining approximately $80,000, which Pernu claimed went to pay for insurance, medical expenses, and other bills; and (4) Pernu admitted that it was wrong to take the money, but she also said that she acted in part out of "anger and vengeance" toward DeVaughn, who, she believed, underpaid her for the work she did.  The PSI report concluded that Pernu was at a minimal risk to re-offend and recommended that the court impose 20 years' probation, 40 hours of community service, restitution, a fine, and 60 days of jail time, with Huber privileges, at a local facility.

            At the sentencing hearing on June 4, 2003, the state said that it believed the sentencing recommendations in the PSI report were appropriate but requested that the court require 120 days of jail time rather than the 60 days recommended in the report.[1]  The state based its recommendation on the magnitude of the thefts; the fact that the victim, DeVaughn, was particularly vulnerable because some of the thefts occurred while he was preoccupied with his wife's terminal illness; and on what the state described as a "callous attitude" exhibited by Pernu during the pre-sentence investigation.     

            The court departed dispositionally from the presumptive guidelines sentence by committing Pernu to the custody of the Commissioner of Corrections for 21 months, with a minimum of 14 months to be spent in prison and the remaining time to be spent on supervised release.  The court cited three reasons for the upward dispositional departure: (1) the theft was a major economic offense; (2) Pernu took advantage of the victim at a time when he was particularly vulnerable; and (3) Pernu's lack of remorse.  Pernu appeals from the dispositional departure.

D E C I S I O N

Sentencing departures are reviewed under an abuse-of-discretion standard.  State v. Woelfel, 621 N.W.2d 767, 774 (Minn. App. 2001), review denied (Minn. Mar. 27, 2001).  When substantial and compelling factors are present, the district court may depart dispositionally or durationally from the presumptive guidelines sentence.  State v. Zeigler, 356 N.W.2d 736, 737 (Minn. App. 1984).  A reviewing court must determine whether the record supports the district court's stated reasons for departure.  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).  The district court only needs one valid ground to support a departure from the sentencing guidelines.  State v. Dominguez, 663 N.W.2d 563, 567 (Minn. App. 2003). 

I.

            The sentencing guidelines allow for an upward departure if the crime was a major economic offense.  The guidelines define "major economic offense" as

an illegal act or series of illegal acts committed by other than physical means and by concealment or guile to obtain money or property . . . .  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;

(d) the defendant used his or her position or status to facilitate the commission of the offense, including positions of trust, confidence, or fiduciary relationships; or

(e) the defendant has been involved in other conduct similar to the current offense as evidenced by the findings of civil or administrative law proceedings or the imposition of professional sanctions.

 

Minn. Sent. Guidelines II.D.2.b(4).  Here, (1) Pernu stole from DeVaughn on at least 200 separate occasions; (2) the monetary loss to DeVaughn was at least $124,000, substantially more than the $35,000 minimum loss specified in Minn. Stat. § 609.52, subd. 3(1), as necessary for the crime of theft by swindle; and (3) the thefts occurred over the course of at least three years.  Because three of the circumstances listed as aggravating factors under Minn. Sent. Guidelines II.D.2.b(4) were present here, the record supports the upward dispositional departure on the ground that Pernu committed a major economic offense.

II.

The second reason cited by the district court for the upward dispositional departure was the victim's particular vulnerability.  The sentencing guidelines allow for an upward departure when the "victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender."  Minn. Sent. Guidelines II.D.2.b(1).  The district court's departure report states that DeVaughn was particularly vulnerable at the time the thefts were committed because he was "dealing with the terminal illness and death of his wife."  Pernu argues that there is insufficient information in the record regarding how DeVaughn's wife's illness and death affected him to support a departure because of DeVaughn's vulnerability.

            The record shows that DeVaughn's wife's died in 2000; it does not reveal when her illness began, so it is not clear whether the thefts began before the illness, but the record shows that the thefts continued well after her death.  The state argued at the sentencing hearing that Pernu stole from DeVaughn while he was particularly vulnerable because of his wife's terminal illness but offered no evidence to support this claim. 

We conclude that the district court abused its discretion by basing an upward dispositional departure on the ground that DeVaughn was particularly vulnerable at the time of the thefts.

III.

The final reason cited by the district court for the upward dispositional departure was Pernu's lack of remorse.  A defendant's remorse, cooperation, and attitude are appropriate factors in determining whether to depart in sentencing.  Woelfel, 621 N.W.2d at 775.  Pernu argues that there is insufficient information in the record for the court to determine that she was not remorseful.    

The district court stated that the PSI report "documents defendant as an individual who blames others, including the victim, for her crime."  At the sentencing hearing, the court characterized Pernu's lack of remorse as "absolutely astounding" and expressed particular astonishment at that portion of the PSI report in which Pernu wrote a first-person description of the circumstances of her crime, stating, inter alia, that:  "I was also very angry with [DeVaughn] for treating me the way he did.  He always expected me to do most of the hard work, but he got all the money.  I think a big part of my committing this crime was anger and vengeance."  

Pernu argues that the court erred in relying on the PSI report to support the conclusion that she lacked remorse because the report does not specifically address the issue of remorse and other parts of the record show that she was remorseful.  Pernu points to the facts that (1) she began to cry when DeVaughn confronted her about the theft; (2) she repaid a "significant amount" of the money before the thefts were discovered; (3) she admitted that she knew her acts were wrong; and (4) a friend of hers wrote a letter to the court stating that Pernu felt immense guilt.  Additionally, at the sentencing hearing, Pernu made a brief statement in which she apologized to the community, to her family, and to the court, and apologized "for betraying the trust of (her) employer."

The record supports the district court's conclusion that Pernu was not remorseful for her crime.  In her version of the crime in the PSI report, Pernu indicated no remorse other than an admission that she realized her acts were wrong.  Additionally, a reviewing court must defer to the district court's assessment of the sincerity and depth of a defendant's remorse and the weight it should receive in the sentencing decision because the district court has the opportunity to observe the defendant. Woelfel, 621 N.W.2d at 775.  Because there is record evidence supporting the district court's conclusion that Pernu was not remorseful for her crime, the court did not abuse its discretion by using lack of remorse as a ground for the upward dispositional departure in Pernu's sentence.

There is evidence supporting the dispositional departure on at least two grounds:  the crime was a major economic offense and Pernu lacked remorse for her actions.  Because the district court needed only one ground to support an upward dispositional departure, it did not abuse its discretion in sentencing Pernu.  See Dominguez, 663 N.W.2d at 567.

Affirmed.

[1] Under Minn. Stat. § 609.135, subd. 4 (2002), a stayed sentence may include probationary jail time at a local facility for up to one year, so the state's request for jail time was not a request for a dispositional departure.