This post does something I have not done before: Analyze an opinion in which a state Supreme
Court reviews the State’s Court of Appeals’ ruling on issues in the case when
it was on appeal to that court. The
title of the case is State v. Rund, 2017
WL 2458130 (Minnesota Supreme Court 2017). You can find the post analyzing the
Court of Appeals’ decision here.
The Supreme Court begins its very recent opinion by
explaining that
Harrison William Rund pleaded guilty to terroristic threats in
connection with a series of threatening tweets directed at law enforcement officers. The district
court granted Rund's motion for a downward durational sentencing departure. A
divided panel of the court of appeals affirmed the departure. Appellant
State of Minnesota filed a petition for review, which we granted. Because the
district court based the departure on improper reasons and the record contains
insufficient evidence to justify the departure on alternative grounds, we
reverse the decision of the court of appeals, vacate Rund's sentence, and
remand to the district court for imposition of a presumptive sentence.
State v. Rund, supra.
The Supreme Court then does what appellate courts usually do
at the beginning of their opinion, i.e., explain how and why the prosecution
arose and what the outcome was in the trial court:
Around 1:00 a.m. on February 4, 2014, a
Minnesota State Trooper stopped a vehicle driven by Rund. It was not the first
time that the particular trooper had stopped Rund. During the stop, Rund and
the trooper `had a disagreement.’ Ultimately, the trooper searched the trunk of
Rund's vehicle, where he found marijuana that was later seized.
After the stop, Rund went home, began
drinking, and messaged with friends on Twitter. Rund
posted five threatening tweets:
● @StPaulPoliceFdn dude
its f*cked up im getting so pissed out here literally thinkin about just
startin to hunt and kill cops
● @sppdPIO f*ck you st paul police
im gonna kill 5 police officers today
● @StPaulPoliceFdn im lookin for [Z.]
boi and whichever trooper pulled me over lastnight gave me a ticket for goin 68
in a 60
● f*ck the @StPaulPoliceFdn they don't
call me the cop killer for no reason
● throw a grenade in the room, watch
all you coppers kaboom
The tweet that referred to the use of a
grenade was posted along with a photograph of a group of St. Paul police
officers. Rund had previously posted a photograph on his Facebook page in which
it appeared that he was holding a silver revolver.
State v. Rund, supra.
The opinion also noted that the “The tweet that referred to
the use of a grenade was posted along with a photograph of a group of St. Paul
police officers.” State v. Rund,
supra.
And, as to the ”silver revolver”, the Supreme Court appended
a footnote after the last sentence in the paragraph immediately above in which
it explained that “[a]fter Rund's arrest, the police determined that the
revolver was a replica cap gun.” State v.
Rund, supra. It also added two more footnotes which, respectively, explain
that
@StPaulPoliceFdn is the Twitter handle
for the Saint Paul Police Foundation, a nonprofit corporation that supports the
Saint Paul Police Department. See https://twitter.com/stpaulpolicefdn;
http://saintpaulpolicefoundation.com/about-the-saintpaul-police-foundation/.
@sppdPIO is the Twitter handle for `[t]he
official Twitter page of the Saint Paul Police Department.’ See https://twitter.com/sppdPIO.
State v. Rund, supra.
The Supreme Court goes on to explain that
[l]aw enforcement officers became aware
of Rund's tweets the following morning, and they arrested Rund at his home at
6:30 p.m. that evening. When arrested, Rund stated that he `tweeted some things
he should not have because he had a bad experience with a police officer the
night before.’ The next day, February 5, Rund made a recorded statement,
admitting to posting the tweets.
The State charged Rund with one count
of terroristic threats, Minnesota Statutes § 609 subd. 1 (2016). Section
609.713.prohibits a person from `threaten [ing], directly or indirectly, to
commit any crime of violence with purpose to terrorize another . . .,or in a
reckless disregard of the risk of causing such terror.” Id.
State v. Rund, supra.
The opinion continues, explaining that
Rund pleaded guilty to the charged offense
without any agreement regarding sentencing. As part of the factual basis for
his plea, Rund admitted that he posted the five threatening tweets. Although Rund claimed that he
did not make the threats with an intent to terrorize, Rund admitted that
he posted the tweets recklessly,
without regard to the risk of causing terror. Rund stated that he was sorry for
any fear that he caused. The district court accepted Rund's guilty plea and scheduled a
sentencing hearing.
State v. Rund, supra.
In a footnote, the court explains that Rund told
the court: `[I]t wasn't my intent, you
know. I think if you scroll through my old Twitter, I think just about
everything on there was not serious, you know. Whether I was talking crap to
Jose Canseco, you know, I mean, everything on there I kind of looked at it as
kind of a joke, and I just took it way too far.’
State v. Rund, supra.
The opinion goes on to describe what occurred at Rund’s
sentencing:
At the sentencing hearing, Rund's
counsel acknowledged that, with Rund's criminal history score of zero and an
offense severity level of four, the presumptive guidelines sentence was 12
months and 1 day, stayed. Rund's counsel asked the district court to impose a
sentence of 365 days in jail, which, by operation of law, would convert Rund's
felony conviction into a gross misdemeanor conviction. See Minn.Stat. § 609.13, subd. 1(1) (2016). According to Rund's counsel, the requested
downward durational sentencing departure was
warranted by Rund's remorse, his intoxication, and the less serious nature of
social media threats generally.
The State opposed the durational
departure and requested a stay of imposition, along with a 60-day jail sentence
and 5 years of probation. Noting that a durational departure must be based on
offense-related reasons, the prosecutor asserted that Rund's conduct was more
egregious than the conduct typically committed during a terroristic-threats
offense. The prosecutor emphasized that Rund made repeated threats of serious
violence. She also stressed that Rund did not just post a generic tweet, but
instead specifically directed his tweets to law enforcement, singling out both
the state trooper who stopped him that night and another officer. Finally, the
prosecutor argued that, despite Rund's assertion to the contrary, the social
media context in no way diminished the seriousness of his offense.
State v. Rund, supra.
The opinion then explains what happened at Rund’s sentencing
hearing:
The district court agreed with the
prosecutor and told Rund that the social media format of his threats `[made] it
worse’ because the officers did not `know who they [were] dealing with.’ The
court then stated:
`The only reason this is less
onerous is because of your age and of your mental state. It doesn't
make it less onerous to the parties receiving it. They don't know what you are
going through or otherwise. But I don't think you had the intent to do it. You
didn't have a gun. You weren't going out to try to search where they live. You
weren't going to make a planned attack. You just wanted to send a tweet out to
affect as many people as you can, and that worked.
(Emphasis added.) Rund's counsel
interjected that the court needed to find offense-based reasons for a departure.
The court responded, `I am going to get to that.’ After emphasizing that Rund's
conduct had scared the police so much that they had to go out and `kick down
doors’ to find him, the district court said, `To give you a felony sentence . .
.at your age . . . I don't feel in balance that that's in the best interests of
society. We got too many people on probation [for] felonies already, and . . .
I can accomplish much of the same thing on a ... durational departure on a
gross misdemeanor.’
The court then granted Rund's request
for a downward durational departure, sentencing him to serve 365 days in jail,
with 245 of those days stayed for a period of 3 years while Rund completes
probation. As conditions of probation, the court ordered Rund to abstain from
alcohol, attend Alcoholics Anonymous meetings, and undergo chemical-dependency
and mental-health evaluations.
State v. Rund, supra (emphasis
in the original).
The opinion then points out that
[a]t the conclusion of the sentencing
hearing, the district court said:
`Basically, young and dumb. Pretty good
kid who did a bad thing, and you affected a lot of people, but you got a lot of
promise in your life, too. Okay. That's what I see when I shake it all up.
That's really why the Court is doing what I am doing.’
In its written departure report, the
district court did not check any offense-related reasons for the downward
durational departure. Instead, it checked four offender-related reasons,
specifically that Rund: (1) showed remorse or accepted responsibility, (2)
lacked substantial capacity for judgment, (3) was particularly amenable to
probation, and (4) was particularly amenable to treatment.
State v. Rund, supra.
The introductory part of the Supreme Court’s opinion then
explains that
[t]he State appealed, arguing that the
district court based the downward durational departure on improper reasons and
that the record contained insufficient evidence to justify the departure on
alternative grounds. A divided court of appeals affirmed the departure. State
v. Rund, No. A16-0133, 2016 WL 4162925, at *5 (Minn. App. Aug. 8, 2016).
The State filed a petition for review, which we granted.
State v. Rund, supra.
With the case’s background out of the way, the Supreme Courr
began the process of articulating its holding, its ruling, in the case. State v. Rund, supra. It began that part
of the opinion by explaining that the
Minnesota Sentencing Guidelines instruct
that a district court `must pronounce a sentence of the applicable disposition
and within the applicable range unless there exist identifiable, substantial,
and compelling circumstances to support a departure.’ Minn. Sent. Guidelines
2.D.1. Substantial and compelling circumstances for a durational departure are
`those which demonstrate that the “defendant's conduct was significantly more
or less serious than that typically involved in the commission of the crime in
question.”’ State v. Leja, 684 N.W.2d 442, 450 (Minn. 2004) (quoting State
v. Cox, 343 N.W.2d 641, 643 (Minn. 1984)).
The sentence here involved a durational
departure because Rund received a sentence outside the presumptive range listed
in the sentencing guidelines for an offender with his criminal history score. Minn.
Sent. Guidelines 2.D.1. (`A pronounced sentence for a felony conviction that is
outside the appropriate range on the applicable Grid, including a stayed or
imposed gross misdemeanor or misdemeanor sentence, is a departure from the
guidelines.’); accord State v. Cizl, 304 N.W.2d 632, 634
(Minn. 1981). `To maintain uniformity and proportionality, departures from the
presumptive guidelines sentence are discouraged.’ State v. Jackson, 749
N.W.2d 353, 357 (Minn. 2008) (citing State v. Misquadace, 644
N.W.2d 65, 68 (Minn. 2002)).
State v. Rund, supra.
The court went on to explain that
[n]evertheless, we afford the district
court `great discretion in the imposition of sentences’ and review decisions to
depart from the sentencing guidelines only for `an abuse of discretion.’ State v. Spain, 590 N.W.2d 85, 88 (Minn.
1999). A district court abuses its discretion when its reasons for departure
are improper or inadequate. State v.
Edwards, 744 N.W.2d 596, 601 (Minn. 2009). When the district court gives
improper or inadequate reasons for a downward departure, we may independently
examine the record to determine whether alternative grounds support the
departure. State v. Solberg, 882
N.W.2d 618, 623 (Minn. 2016); see also
State v. Jones, 745 N.W.2d 845, 851 (Minn. 2008) (explaining that when the
district court's reasons stated on the record for a departure are improper or
inadequate, our past practice has been to independently review the record to
determine whether sufficient evidence justifies a departure for legitimate
reasons). Reversal is required when the reasons given are improper or
inadequate and the record contains insufficient evidence to justify the
departure. Williams v. State, 361
N.W.2d 840, 844 (Minn. 1985).
State v. Rund, supra.
The Supreme Court then began the process of articulating its
holding – its decision – on the issues in the case, explaining, initially, that
[t]he State argues that the reasons
given by the district court for the downward durational sentencing departure
were improper. We agree.
Durational departures may be justified
by offense-related reasons only. Solberg, 882 N.W.2d at 625; cf. State
v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983) (`[W]hen justifying only
a dispositional departure, the trial court can focus more on
the defendant as an individual . . . .’). Offender-related reasons—such as
particular amenability to probation or treatment, remorse that does not reduce
the seriousness of the offense, or age—are not legally permissible reasons for
a downward durational departure. See Solberg, 882 N.W.2d at
625-26 (discussing remorse); State v. Bauerly, 520 N.W.2d 760,
762 (Minn. 1994) discussing remorse and age); Heywood, 338 N.W.2d
at 244 (discussing particular amenability to probation). Here, the
district court relied on both offender- and offense-related reasons. The
offender-related reasons were Rund's age, his remorse and acceptance of
responsibility, his lack of substantial capacity for judgment, and his
particular amenability to probation and treatment. Because these are not
legally permissible reasons for a downward durational departure, the district
court's reliance on these reasons was an abuse of discretion.
State v. Rund, supra.
The Supreme Court then takes up a related issue, explaining,
initially, that
[a]lthough the district court did not
check any offense-related reasons in its written departure report, the court
did state on the record that Rund's offense was less serious because of his `mental
state.’ Rund contends that this statement was a reference to his admitted mens
rea, which was a reckless disregard of the risk of causing such terror, as
opposed to a purposeful intent to cause terror. The comments that immediately
follow the court's reference to Rund's `mental state’ do not appear to support
Rund's mens rea argument because the comments emphasize that Rund did not
actually intend to murder the police officers, rather than discussing his
intent to cause terror. In any event, even if the record did support
Rund's mens rea argument, we rejected a similar argument in Solberg,
882 N.W.2d at 627.
The defendant in Solberg argued
that his third-degree criminal sexual conduct offense was significantly less
serious than the typical case because he completed it by using coercion and not
violence. Id. at 626-27. Acknowledging that “third-degree
criminal sexual conduct covers a range of wrongful acts, including the use of
threats or the infliction of bodily harm,” we held that Solberg's offense was
not significantly less serious than the typical case because his “use of his
overwhelming physical size and strength to cause the victim to submit to
penetration against her will fits squarely within the statute's prohibition
....” Id.
Like the statute in Solberg,
which covered a range of wrongful acts, here the terroristic-threats statute
includes more than one mens rea: either the purpose of terrorizing or a
reckless disregard of the risk of terrorizing. Minn. Stat. § 609.713, subd. 1. As part of his guilty plea,
Rund admitted that he repeatedly threatened to kill police officers in in tweets that were directed to
police organizations and singled out the state trooper that stopped him, as
well as another officer. Because Rund's conduct fits squarely within the
statute's prohibition against making threats with a reckless disregard of the
risk of causing terror, his conduct was not significantly less serious than the
typical case. Accordingly, Rund's `mental state’ was not a proper reason
to impose a downward durational sentencing departure.
State v. Rund, supra.
But the Supreme Court did not end its opinion there.
Instead, it went on to explain that
[a]lthough the reasons given by the
district court for the downward durational sentencing departure were improper,
our inquiry does not end there. When a court gives improper reasons for a
downward departure, we may independently examine the record to determine
whether alternative grounds support the departure. Solberg, 882
N.W.2d at 623. According to Rund, the record supports two grounds for the
departure that were not articulated by the district court: (1) remorse that
relates back to the offense, and (2) the social media context of his threats. We
consider each of these alternative grounds in turn.
Rund argues that he displayed remorse
that related back to the offense and took remedial steps after his tweets that
make his conduct significantly less serious than the typical offense. According
to Rund, he displayed such remorse when he confessed shortly after apprehension
so that the targets of his threats would know that they were not in danger. The
State counters that Rund did not display remorseful conduct during, or
immediately after, the offense. Instead, he kept tweeting until he had posted
five separate threats and did nothing to mitigate the impact until after the
police arrested him.
`[A] defendant's remorse generally does
not bear on a decision to reduce the length of a sentence,’ but `cases may
exist in which the defendant's remorse could relate back and be considered as
evidence of remediation that makes the conduct significantly less serious than
the typical conduct underlying the offense . . . .’ Id. at
625-26. Nonetheless, `showing the relevance of remorse to a durational departure
will not be an easy task,’ because the offender must show that `his
demonstrated remorse is directly related to the criminal conduct at issue and
made that conduct significantly less serious’ than the typical case. Id. at
626.
Having independently reviewed the
record, we conclude that it does not reflect any remorse that was `directly
related to the criminal conduct at issue and made that conduct significantly
less serious.’ Id. Rund's confession, which was made after he
was already in custody and no longer a viable threat to law enforcement, did
not lessen the impact of the crime on the victims or make his terroristic
threats any less serious than the typical terroristic-threats offense.
Consequently, the record here does not reflect any offense-related remorse that
would provide an alternative ground to support the downward durational
sentencing departure.
State v. Rund, supra.
The court wound up the opinion by explaining that
[w]e next consider Rund's argument that
the social media context of his threats mitigates his culpability because the
ability to post threats instantly makes them less deliberate and because most
users understand that hyperbole flourishes online. The State responds that `[s]ocial
media has become a forum to terrorize’ and that using social media to commit
crimes does not mitigate the seriousness of those crimes.
The guidelines' `nonexclusive list’ of
mitigating circumstances that can justify a downward departure includes
`[o]ther substantial grounds . . .that tend to excuse or mitigate the
offender's culpability, although not amounting to a defense.’ Minn. Sent.
Guidelines 2.D.3.a(5). But to support a downward durational departure, the
reason must demonstrate that the defendant's conduct was significantly `”less
serious than that typically involved in the commission of the crime in
question.”’ Leja, 684 N.W.2d at 450 (quoting Cox,
343 N.W.2d at 643).
Social media, like any other medium of
communication, carries its own unique characteristics. We recognize that some
users of social media may make more exaggerated or extravagant statements than
they would in other contexts, and the forum certainly allows a user to post
these types of statements, including a real threat, instantly without much
deliberation. But these features do not support a categorical rule that threats
made on social media are somehow less serious than other threats. And, as the
district court aptly observed in this case, the anonymity that social media
often provides can make the threats worse. In any given case, the unique
characteristics of social media might mitigate or aggravate an offense. An
analysis of the totality of the circumstances surrounding the specific offense
is therefore required to determine whether a social media threat is more or
less serious than a terroristic threat delivered by more traditional means.
Our independent review of the record
leads us to conclude that the circumstances surrounding Rund's use of a social
media platform to publish his threats did not mitigate his culpability. Rund
did not send one misguided tweet; he tweeted five separate times, including a
threat to use a grenade to kill police officers. He used Twitter to threaten
multiple police officers simultaneously, which made his conduct more severe
than a threat against a single person. See State v. Murphy,
545 N.W.2d 909, 917 (Minn. 1996) (affirming an upward departure in a
terroristic threats case for several reasons, including defendant's `multiple
victims’). He also used Twitter's `mention’ mechanism to increase the
likelihood that the targets of his threats would actually see them. Finally,
the statute prohibits a threatened `crime of violence,’ a category that covers
a wide variety of crimes, including: stalking, criminal sexual conduct, assault
in the first degree, false imprisonment, and simple robbery. Rund threatened
murder, the most serious crime of violence listed. Accordingly, the record
fails to demonstrate that Rund's use of social media provides an alternative
ground to support the downward durational sentencing departure.
State v. Rund, supra.
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