Polk County District Court File No. 60-CR-12-1172
Lori Swanson, Attorney General, St. Paul, Minnesota; and Gregory A. Widseth, Polk County Attorney, Crookston, Minnesota (for appellant)
Cathryn Middlebrook, Interim Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant State Public Defender, St. Paul, Minnesota (for respondent)
Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and Chutich, Judge.
Appellant State of Minnesota appeals from the district court's sentence of respondent after his conviction of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342 subd. 1(e)(i) (2010). Because the district court's dispositional departure from the Minnesota Sentencing Guidelines is not supported by evidence in the record, depreciates the criminality of respondent's conduct and is inconsistent with respondent's lack of remorse, we reverse the sentence and remand for resentencing.
On May 18, 2012, respondent Jose Arriaga Soto, Jr. and his co-defendant Ismael Hernandez attended a bonfire where M.L.F. was present. After respondent, Hernandez, M.L.F., and another person left the bonfire together, they went to an apartment. Once there, respondent and Hernandez ended up in a bedroom with M.L.F. According to the complaint, respondent pinned M.L.F. face-down against the bed while Hernandez anally raped her. Hernandez left the room and respondent proceeded to forcibly rape M.L.F. several times, using multiple forms of penetration. As a result, M.L.F. blacked out and received numerous injuries. She went to the emergency room the next day, where her injuries were photographed.
Respondent and Hernandez were each charged with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i). Respondent pleaded guilty by way of what the district court minutes refer to as a "combined" Alford/Norgaard plea,  pursuant to a written plea agreement. As part of the plea agreement, the state agreed to recommend the presumptive guidelines sentence of 144 months imprisonment and agreed not to seek an upward durational departure. The district court accepted the plea and ordered the completion of a presentence investigation (PSI) and sentencing worksheet.
As part of the PSI process, a "Diagnostic Assessment for Adults" was completed and a report was prepared through the Upper Mississippi Mental Health Center on January 11, 2013 (Upper Mississippi report). Several diagnostic tests were administered to respondent and scale scores were given for several risk categories, establishing that respondent minimizes both his sex-related and other problems and concerns. Respondent fell in the "problem risk range" for his sex-item truthfulness and test-item truthfulness scale scores. Respondent also was found to "exhibit and use denial excessively." Also, because respondent "exhibit[s] some sex-related frustration and anger, " his sexual adjustment scale score and sexual assault scale score place him within the "medium risk range" for each category. Finally, respondent's violent scale score placed him in the "medium risk range."
The Upper Mississippi report noted that respondent does not accept responsibility for his actions and blames M.L.F. Respondent contended to the assessor that M.L.F.'s claim that he had raped her was motivated by M.L.F. having been in a relationship at the time of the offense. The assessor noted that respondent used M.L.F. "for his own sexual gratification without care or concern for the impact his actions may have had on this individual. . . . [Respondent] clearly violated the rights of another without remorse." Despite these findings, a comment near the end of the report stated that respondent "appears to be an appropriate candidate for participation in the outpatient Sexual Abuse Treatment program."
An agent of the Tri-County Community Corrections completed a PSI on February 14, 2013. The agent recommended in the PSI report that respondent be sentenced to 144 months in prison consistent with the Minnesota Sentencing Guidelines. The agent noted that respondent attempts to shift blame to M.L.F. and poses a "high risk to re-offend" and a "high risk to the community." The agent also indicated that respondent's family members believe him to be innocent of the charges, noting that a family member had at one point acted in a threatening manner toward the agent, causing the agent to conclude that the relative would not be a "pro-social influence" for respondent. The agent also reported that, during the interview, respondent "spent a huge portion of his time minimizing his actions." The agent, referring in part to the Upper Mississippi report and its conclusions and recommendations, concluded: "Community safety may best be served by [respondent] serving his time in the Minnesota Correctional Facility as the plea agreement states. [Respondent] would also benefit from completing a sexual abuse treatment and cognitive behavior program while incarcerated."
At the sentencing hearing, M.L.F. gave a brief victim-impact statement, summarizing the effects she suffered as a result of the sexual assault. Respondent argued for a downward dispositional departure, while the state argued for execution of the presumptive 144-month sentence. The district court sentenced respondent to 144 months in prison, but stayed the execution of the sentence and placed respondent on probation for 30 years with conditions. The district court emphasized respondent's ...