Ramsey County District Court File No. K2-03-3058.
Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.
An offender convicted of multiple counts of possession of child pornography as part of a single behavioral incident that involves images of multiple victims may be sentenced consecutively on each count under the multiple-victim exception to Minn. Stat. § 609.035, subd. 1 (2002), unless the sentence imposed unfairly exaggerates the criminality of the offender's conduct.
The opinion of the court was delivered by: Wright, Judge
Affirmed in part, reversed in part, and remanded
After pleading guilty to six counts of possession of child pornography and being sentenced in accordance with the terms of his plea agreement, appellant now challenges the multiple sentences that were imposed consecutively. Appellant and respondent agree that possession of the numerous pornographic images stored on appellant's computer was part of a single behavioral incident. Although a different child is depicted in each image, appellant argues that the multiple-victim exception permitting multiple sentences does not apply because (1) the children do not qualify as victims of the offense; and (2) the total sentence of 84 months' imprisonment exaggerates the criminality of his conduct. Respondent concedes that, because two of the pornographic images for which appellant was convicted and sentenced likely depict the same minor, one of the consecutive sentences imposed should be reversed without disturbing the remaining consecutive sentences. We affirm in part, reverse in part, and remand.
In January 2002, St. Paul Police investigated a domestic disturbance at appellant Jason Michael Rhoades's home. During the investigation, police learned that Rhoades is a registered predatory sex offender who has been convicted twice of second-degree criminal sexual conduct involving a child. Police reports from Rhoades's prior offenses established that child pornography had been found on Rhoades's computer. Rhoades's probation officer notified police in January 2002 that, as a condition of his probation, Rhoades was barred from having access to the Internet and from any contact with a minor. During the course of the January 2002 investigation, police learned that Rhoades spent most of his free time on the Internet. As a result, a probation violation warrant was issued, and Rhoades turned himself in on January 8, 2002.
That day, Rhoades's cousin arrived at Rhoades's home with a list of property, including Rhoades's computer and other electronics, to be removed from Rhoades's residence. The police subsequently seized the computer from Rhoades's cousin and submitted the computer to the Minnesota Internet Crimes Against Children Task Force for a forensic examination. The forensic examination disclosed that a large number of files had been deleted from the computer on January 6, 2002.*fn1 The forensic examiner recovered from the computer approximately 100 files containing child pornography.
Rhoades was charged with ten counts of possession of child pornography, in violation of Minn. Stat. § 617.247, subds. 4(a), (b) (2002).*fn2 On October 21, 2003, Rhoades signed a plea agreement and pleaded guilty to counts I through VI. Pursuant to the plea agreement, each count was ranked as a level-four offense, and Rhoades agreed to receive a separate sentence on each count, to be served consecutively. The remaining counts would be dismissed at sentencing. With a criminal-history score of five and an offense level of four for count I, Rhoades agreed to a sentence of 27 months' imprisonment on that count and an additional year and one day for each subsequent count, to be served consecutively. The district court later adopted the recommendation of the presentence investigation report and reduced Rhoades's criminal-history score to four. This resulted in a sentence of 24 months' imprisonment for count I. The district court sentenced Rhoades to consecutive sentences, in conformity with the plea agreement, totaling 84 months' imprisonment. Counts VII through X were dismissed. This appeal followed.
Did the district court err in imposing separate, consecutive sentences, in accordance with the plea agreement, for the six counts ...