This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-636

State of Minnesota,

Respondent,

vs.

Cynthia Marie Norman,

Appellant.

Filed December 10, 1996

Affirmed

Klaphake, Judge

Ramsey County District Court

File No. K7-94-275

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 W. Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

Melissa Sheridan, Assistant State Public Defender, Paula Kruchowski, Certified Student Attorney, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Davies, Judge.

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

KLAPHAKE, Judge

Cynthia Marie Norman appeals her resentencing after remand, arguing that departure from the sentencing guidelines was improper and that she was denied assistance of counsel at the hearing. Because the trial court did not abuse its discretion and there was no sixth amendment violation, we affirm.

D E C I S I O N

Appellant pleaded guilty to seven counts of theft by swindle under Minn. Stat. § 609.52, subds. 2(4), 3(1), 3(5) (1994), arising out of her work as a Ramsey County conservator. The state recommended guideline sentencing. After considering the presentence investigation report, the court imposed an upward durational departure and set out the aggravating circumstances.

On appellant's initial appeal from the sentence, this court remanded with two specific instructions: to clarify to which count the aggravating factors apply and to conduct a restitution hearing. Having reviewed the record after remand and having considered the materials included in appellant's pro se supplemental brief, we are satisfied that the trial court complied with these instructions.

Appellant argues that it is still unclear to which count the aggravating factors applied. The trial court stated "as to Count VII" and then identified several factors demonstrating a major economic offense involving particularly vulnerable victims. See Minn. Sent. Guidelines II.D. By doing so, the trial court indicated that it was solely contemplating circumstances relating directly to the conduct immediately underlying that offense. See State v. Pittel, 518 N.W.2d 606, 608 (Minn. 1994) (only conduct underlying specific offense may support durational departure for that offense).

Appellant also argues that she was denied assistance of counsel when the trial court commenced the restitution hearing before her counsel had arrived. The record reflects that appellant's counsel arrived after 15 minutes of foundation testimony had been given by the prosecution's first witness. The record also reflects that the trial court provided defense counsel ample opportunity to order a transcript and respond by affidavit. Although we do not condone conducting any part of a sentencing hearing in the absence of defense counsel, we conclude that in this instance it was harmless error. See Satterwhite v. Texas, 486 U.S. 249, 253, 108 S. Ct. 1792, 1797 (1988) (explaining that not all constitutional violations amount to reversible error). The record reflects overall fairness in the adversary criminal process. See United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 667 (1981).

Affirmed.