This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Harold Douglas Wilmoth,
a/ka Doug Wilmoth,
Gordon W. Shumaker, Judge
Kandiyohi County District Court
File No. K200986
John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Boyd Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Foley, Judge.*
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant challenges his sentence for theft by swindle, arguing that the district court abused its discretion in departing from the sentencing guidelines and by imposing a sentence disproportional to the crime. Because the sentence was within the district court’s discretion, we affirm.
At least as early as 1986, appellant Harold Douglas Wilmoth began to induce Burt and Carol Anderson to invest money in a company called Iamex, Inc., which purportedly resold businesses to third parties. Iamex, Inc., was merely a mechanism for defrauding the Andersons and others.
Wilmoth persuaded the Andersons to invest their own money and, at least indirectly, induced the Anderson to obtain money from numerous other people.
In 1993, the Minnesota Department of Commerce investigated Wilmoth, concluded that he was engaging in illegal securities transactions and, in 1994, sent him a cease-and-desist letter. Wilmoth did not cease his fraudulent activities.
Additional investigations revealed that between July 1, 1996, and May 9, 1999, the Andersons and others paid $249,441.25 to Wilmoth.
In perpetrating his fraud on the Andersons, Wilmoth always required cash payments; frequently made urgent requests for money, ostensibly to foster various investment deals; and, when the Andersons asked about a return on their investments, Wilmoth would threaten bankruptcy.
The state eventually charged Wilmoth with six counts of theft by swindle, in violation of Minn. Stat. § 609.52, subds. 2(4), 3(1), 3(5) (1998); fraud in connection with the offer, sale, or purchase of securities, in violation of Minn. Stat. § 80A.14, .22, subd. 1 (1998); and selling securities without a license and selling unregistered securities, in violation of Minn. Stat. § 80A.08, .14, .22, subd. 1 (1998).
As part of a plea agreement, Wilmoth pleaded guilty to one count of aiding and abetting felony theft by swindle in excess of $35,000, in violation of Minn. Stat. §§ 609.52, subds. 2(4), 3(1), 3(5), 609.05 (1998). This count encompassed the six charges of theft by swindle. The state dismissed the three securities-fraud counts. Wilmoth agreed to pay restitution in the amount of $249,441.25. There was no agreement as to sentencing.
The presumptive sentence for Wilmoth’s crime is 21 months with a stay of execution. At sentencing, the district court found substantial and compelling circumstances warranting a dispositional departure and double durational departure, and sentenced Wilmoth to a 42-month executed sentence. Wilmoth appeals the sentence.
Wilmoth argues that, although the district court did not abuse its discretion in departing upward durationally, the court did abuse its discretion in departing dispositionally and in doubling the presumptive sentence. He also contends that the sentence as a whole is not proportional to the crime.
The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Even though departures are reviewed under an abuse-of-discretion standard, there must be “substantial and compelling circumstances” in the record to justify a departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996) (citations omitted). If the record supports findings that substantial and compelling circumstances exist, we will not modify the departure unless we have a “strong feeling” that the sentence is disproportional to the offense. State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984) (citation omitted).
Generally, in determining whether to depart from the presumptive sentence, the district court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Woelfel, 621 N.W.2d 767, 774 (Minn. App. 2001) (quotation omitted), review denied (Minn. Mar. 27, 2001).
Wilmoth’s crime constituted a “major economic offense.” Under the sentencing guidelines, aggravating factors for the crime of “major economic offense” include:
(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 minimum loss specified in the statute;
(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)(a-e). The presence of two or more of these circumstances are aggravating factors with respect to the offense. Minn. Sent. Guidelines II.D.2.b.(4).
In its sentencing order, the district court found that 15 victims had been identified; there were multiple incidents, and in two instances Wilmoth solicited one victim 40 times and another 60 times; the crime involved actual monetary losses substantially greater than the minimum statutory amounts under which Wilmoth was charged; the crime took place over a lengthy period of time, from 1996 to 1999; a high degree of sophistication and planning was required to carry out the crime, as Wilmoth used the investment and promotion scheme of Iamex to solicit funds, used many different artifices to obtain money from the victims, and instructed the victims to give him the funds in cash or by Western Union money transfer orders so as to avoid tracing the money to him; and Wilmoth has been involved in other conduct similar to this crime in the past, as is demonstrated by the commerce department’s 1994 cease-and-desist letter. The record supports these findings. Thus, all of the aggravating factors for a major economic offense exist.
“The same aggravating factors may be used to justify both durational and dispositional departures.” Woelfel, 621 N.W.2d at 775 (quotation and citation omitted). In addition to the factors noted above, the district court concluded that Wilmoth was unamenable to probation.
Unamenability to probation is frequently the justification for a dispositional departure. State v. Schenk, 427 N.W.2d 12, 14 (Minn. App. 1988). The presence or absence of remorse is a very significant factor in determining whether Wilmoth is amenable to probation. Woelfel, 621 N.W.2d at 775.
In support of its decision to depart dispositionally, the district court found that
[Wilmoth still doesn’t] take full responsibility for [his] conduct. When I’ve watched you in court, you continue to blame others for your own unscrupulous and unlawful behavior. At the omnibus hearing, you had the audacity to testify that your life was being threatened but you couldn’t be any more specific about these threats if you didn’t get money. You profess remorse now and at the time of your plea, but I think that’s simply to affect your sentence. Each time I’ve observed your conduct and testimony in court, I don’t find you credible. You are more worried about yourself and the consequences to you than you are to any victim. I find that you are not amenable to probation.
The district court reiterates this finding in its sentencing order, and also finds that
[e]ach time the Court has had an opportunity to observe his testimony, the defendant has been self-serving, minimizing his participation in this crime, and minimizing his gain from this crime. Only now when he is worried about his sentence does he profess any concern regarding the victims of the crime.
We defer to the district court’s assessment of the sincerity and depth of Wilmoth’s remorse because the district court had the opportunity to actually observe him throughout the proceedings. Id. The court’s substantive findings are supported by the record.
Because the district court made the appropriate findings as required by law and these findings are supported by the record, the district court did not abuse its discretion in departing from the sentencing guidelines.
Wilmoth argues that the district court erred in finding that he is a threat to the community when the court decided to depart dispositionally, and that other mitigating factors make the departures inappropriate. In addition to finding that Wilmoth is a threat to the community, the district court found that Wilmoth is not amenable to probation, citing his lack of remorse, cooperation, and attitude in court. These factors may also be considered in determining amenability to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Although Wilmoth argues that his age and support of his family demonstrate that he is amenable to probation, the record overwhelmingly shows otherwise. Because there are substantial and compelling circumstances that greatly outweigh any mitigating factors, the district court did not abuse its discretion in departing from the sentencing guidelines.
Lastly, considering similar cases, the sentence is not disproportionate to the crime. An upward durational and dispositional departure from the presumptive guidelines’ sentence is appropriate where the conduct constitutes a major economic offense and aggravating factors exist. State v. O’Hagen, 474 N.W.2d 613, 623-24 (Minn. App. 1991), review denied (Minn. Sept. 25, 1991); see also Woelfel, 621 N.W.2d at 775-76 (appropriate findings were made supporting dispositional and double upward durational departure in sentencing defendant; district court did not abuse discretion in departing from presumptive sentence); Schenk, 427 N.W.2d at 14-15 (dispositional and durational departure appropriate, even though defendant had no prior criminal record); State v. Fett, 414 N.W.2d 783, 784-85 (Minn. App. 1987) (durational and dispositional departure appropriate when victim vulnerable due to age, and defendant showed lack of remorse), review denied (Minn. Dec. 22, 1987); State v. Finbraaten, 363 N.W.2d 473, 474-75 (Minn. App. 1985) (district court did not abuse discretion in departing dispositionally and triple durationally when record supported substantial and compelling circumstances, including age of victim, loss greater than statutory minimum loss, considerable planning, and using position or status as handyman in commission of crime), review denied (Minn. Apr. 18, 1985). The sentence imposed in this case is not disproportionate to Wilmoth’s offense because other offenders have been sentenced in a similar manner when similar circumstances existed.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.