This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Kristin Lynn Osterbauer, petitioner,





State of Minnesota,



Filed June 5, 2001


Shumaker, Judge


Dakota County District Court

File No. KX992828




Mark D. Nyvold, Suite 1030, 46 East 4th Street, St. Paul, MN 55101; and


Anthony Ho, McDonough, Wagner, Schaeffer & Ho, 14501 Granada Drive, Suite 200, Apple Valley, MN 55124 (for appellant)


Mike Hatch, Attorney General, Suite 1100, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and


James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)


Considered and decided by Shumaker, Presiding Judge, Harten, Judge, and Poritsky, Judge*

U N P U B L I S H E D  O P I N I O N




In her appeal from the district court’s order denying postconviction relief, appellant contends that the court erred by refusing to grant a continuance of her sentencing and by improperly departing from the sentencing guidelines.  We affirm.


            Appellant Kristin Lynn Osterbauer, a middle-school teacher, admitted that she engaged in sexual contact with J.J., one of her 13-year-old male students.  She did not deny J.J.’s allegation that they also had sexual intercourse; rather, she testified she did not recall doing that.

The state charged Osterbauer with first-degree criminal sexual conduct, a crime that carries a presumptive executed sentence of 86 months.  In return for a guilty plea, the state amended the charge to second-degree criminal sexual conduct.  Although the presumptive sentence for this charge is 21 months with execution stayed, Osterbauer agreed to a dispositional departure and to a durational range of 1 year and 1 day to 42 months.  The district court scheduled the sentencing for June 16, 2000, and released Osterbauer on the condition, among others, that she not drink alcohol.

Osterbauer failed a random blood-alcohol test on June 13 and the court issued a warrant for her arrest.  When she failed to appear for the sentencing on June 16, the court issued a second warrant.  By June 18, Osterbauer was in the hospital.  The court learned of her whereabouts on June 19 and informed her attorney that day that sentencing would occur on June 20.

At the sentencing, Osterbauer’s attorney requested a continuance for two reasons.  First, he said he did not know whether Osterbauer was sufficiently competent to exercise her right of allocution.  The attorney stated since her plea she had attempted suicide and was being treated for pneumonia.  The attorney also stated that when he tried to talk to Osterbauer she just sat there, looking forward, crying.  Counsel had no medical support for his concern about Osterbauer’s competency.

The second reason for the continuance request was defense counsel’s inability to prepare for the sentencing on short notice.  Even though he had received the presentence investigation report several days earlier, the attorney had not had time to review the report with Osterbauer.  Additionally, he said he wanted to call certain witnesses to testify.

The state objected to any continuance, and the court denied the defense request.  The sentencing was held.  The state moved for a double upward durational departure from the presumptive sentence of 21 months, citing as aggravating circumstances J.J.’s particular vulnerability, his increased depression, and Osterbauer’s violations of her position of trust and J.J.’s zone of privacy.  The defense opposed the state’s motion and argued that a proper sentence would range between 1 year and 1 day and 21 months.

Osterbauer exercised her right of allocution, telling the court that she was sorry for the pain she had caused J.J. and his family.  She assured the court that she had not tried to contact J.J. and that she hoped he was recovering.  She also acknowledged her own need for help.

Without specifically reciting the grounds for departure, the court imposed a 42-month executed sentence.  Thereafter, Osterbauer challenged the court’s denial of her continuance request and the departure through a petition for postconviction relief.  The court denied the petition and included in its order the grounds for departure.  Osterbauer appeals.


We will not disturb the postconviction court’s decision absent an abuse of discretion.  Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).  We review the postconviction court’s findings to determine whether they are supported by sufficient evidence.  Id.

I.          Continuance

Osterbauer contends that the court denied her due process by refusing to grant a continuance so as to allow an inquiry into her competency to participate in her sentencing.  The issue is whether there was sufficient doubt about her competency to require further inquiry.  See Burt v. State, 256 N.W.2d 633, 636 (Minn. 1977) (stating question on appeal was whether record disclosed sufficient doubt of appellant’s competency); State v. Bauer, 310 Minn. 103, 115, 117, 245 N.W.2d 848, 855 (1976).

The criminal rules require that a defendant have the ability to consult with counsel and be capable of understanding the proceedings:

A defendant shall not be * * * sentenced for any offense if the defendant:

(1)    lacks sufficient ability to consult with a reasonable degree of rational understanding with defense counsel; or

(2)    is mentally ill or mentally deficient so as to be incapable of understanding the proceedings or participating in the defense.


Minn. R. Crim. P. 20.01, subd. 1.

There are no fixed guidelines for determining whether there should be an inquiry into a defendant’s competency, but

 evidence of a defendant’s irrational behavior, his demeanor * * *, and any prior medical opinion on competence * * * are all relevant in determining whether further inquiry is required, * * * [and] even one of these factors standing alone may, in some circumstances, be sufficient.


Bauer, 310 Minn. at 116, 245 N.W.2d at 855 (quoting Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908 (1975)).

            Osterbauer stood before the sentencing judge.  He was able to observe her demeanor.  She spoke on her own behalf.  The judge was able to assess her coherence, the lucidity of her thoughts, and her apparent understanding of the proceeding.  He observed nothing that raised a sufficient doubt of Osterbauer’s competency to require further inquiry.  Although we cannot evaluate demeanor from a written record, we can note speech patterns and the content of the speech and can identify clear irrationality.  Nothing in Osterbauer’s transcribed sentencing statements suggests any irrationality or lack of comprehension of the proceedings.  On the contrary, her statements of remorse and acknowledgement of the need for help were directly responsive to the type of proceeding being conducted.  And even though Osterbauer had come directly from a hospital where she had been confined for at least two days, no medical assessment or opinion was offered to substantiate a concern for her competency.  We are left with defense counsel’s subjective belief that there might possibly be a doubt about Osterbauer’s competency.  Such a belief, although undoubtedly sincere, is not sufficient to raise a legitimate doubt as to the client’s competency.  The court did not abuse its discretion in refusing to permit further inquiry into Osterbauer’s competence.

            Osterbauer’s attorney also contended that he was not prepared to proceed with the sentencing.  Osterbauer entered her plea on April 10, 2000.  She absconded on June 13, 2000.  The presentence investigation report was available on June 12, 2000.  The report was supplemented on June 20, and sentencing occurred that day.  The court received the defense attorney’s sentencing memorandum and letters from Osterbauer’s family members.  The court heard the attorney’s argument and Osterbauer’s own statements.  The defense attorney had ample time to prepare for sentencing.  His inability to review the PSI with Osterbauer resulted from her own voluntary unavailability.  The court did not abuse its discretion by denying a continuance to allow defense counsel to make additional preparations for sentencing.

II.        Departure

            Osterbauer agreed to the possibility of a double durational departure, although she hoped for less time.  The district court departed within the upper limit of that agreement.  At the sentencing, the court did not state the grounds for the departure, even though the prosecutor alleged several aggravating circumstances.  See State v. Synnes, 454 N.W.2d 646, 647 (Minn. App. 1990) (holding that the trial court must provide a written record stating the reason for departure, even if it adopts the sentence recommended in the plea agreement), review denied (Minn. June 26, 1990).  So, the issue is whether the court can supply the requisite departure reasons in a postconviction proceeding.

            The supreme court has provided guidelines for evaluating departures on appeal:

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, this 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 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.


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


            Taking the first Williams guideline as an absolute, both the dispositional and durational departures would have to be reversed.  But we have interpreted that guideline as not prohibiting an appropriate departure on remand:

Rule one in Williams does not prohibit the trial court from departing upon remand where the record clearly indicates that the trial court originally intended to depart.  If the Williams rule * * * were interpreted with strict literalism, * * * then a trial court’s oversight in failing to make findings would forever bar the imposition of an appropriately aggravated sentence.  We do not believe the supreme court intended Williams to transform a correctable oversight into an irrevocable bar.


State v. Garrett, 479 N.W.2d 745, 749 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).

            Although Garrett dealt with a remand, the same rationale should apply to a postconviction proceeding.  Thus, if the district court’s original intent was to depart and by oversight the court failed to recite the departure grounds, the error is correctable in a postconviction proceeding if appropriate departure grounds exist.

            Among the departure reasons the court recited in its postconviction order is the particular vulnerability of the victim.  As the court found, this was not a vulnerability because of age or student-teacher status, which likely are already reflected in the presumptive sentence, but rather it was a fragility of mental condition.  J.J. was suffering from depression when Osterbauer began her relationship with him.  She exploited that condition when she supplied him with alcohol, and her conduct and the aftermath exacerbated J.J.’s depression.

            We have upheld a double durational departure because a crime caused psychological injury requiring future counseling.  State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994) (citing State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992)), review denied (Minn. Mar. 31,1994).  Furthermore, only one aggravating factor need be present to justify a departure from the sentencing guidelines.  State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985).  See also State v. Magee, 413 N.W.2d 230, 234 (Minn. App. 1987) (holding that one factor sufficient to justify 50% upward durationaldeparture), review denied (Minn. Nov. 24, 1987).  The district court did not err in imposing a double departure, a sentence that extended in duration to the maximum limit that Osterbauer agreed to in her plea bargain.


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, §10.