Eduardo Cortez, Jr. v. State of Minnesota

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-2062

Eduardo Cortez, Jr., petitioner,
Appellant,

vs.

State of Minnesota,
Respondent

Filed August 24, 2015
Affirmed
Worke, Judge

Polk County District Court
File No. 60-CR-11-1305

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Gregory Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Willis,

Judge.*

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 UNPUBLISHED OPINION

WORKE, Judge

Appellant challenges the district court’s denial of his petition to correct his

sentence imposed on 12 counts of possession of child pornography, arguing that he

should have received one sentence for a single behavioral incident and that his sentence

exaggerates the criminality of his conduct. We affirm.

FACTS

On October 23, 2010, an Internet Crimes Against Children software program

initiated by the Bureau of Criminal Apprehension established a connection with an IP

address for a computer that was making child-pornography files available. A history

report showed that the IP address identified as a download candidate for suspected child-

pornography files on eight prior occasions in 2010. The computer with the IP address

was connected to appellant Eduardo Cortez, Jr.

On December 23, 2010, agents executed a search warrant at Cortez’s address.

Cortez was interviewed and admitted to searching for and downloading child

pornography. The children in the videos were between two and five years old. Cortez

admitted to knowingly downloading and possessing child pornography, masturbating to

images of pre-teen and prepubescent girls, and having thoughts about having sex with

pre-teen girls. Files on Cortez’s computer and CDs and DVDs in his possession were

examined. Date- and time-creation information was identified for 12 videos. From those

videos, ten victims were identified.

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 Cortez was charged with 12 counts of possession of pornographic work involving

a minor. The complaint stated that 31 videos and 60 images of suspected child

pornography were discovered, and included nine different offense dates. The complaint

included a detailed description of 12 videos, including: the file name, the dates and times

the files were created or downloaded, the video length, the approximate age of the child,

and a description of the particular acts forced on the child.

On October 26, 2011, the prosecutor offered Cortez two plea options. Under

option one, Cortez would plead guilty to the 12 counts and receive a 120-month prison

sentence, a permissible sentence under the guidelines. Under option two, Cortez would

plead guilty to the 12 counts without an agreement regarding sentencing. The prosecutor

had given notice of intent to seek an aggravated departure, a 240-month sentence. The

prosecutor also agreed not to charge a “multitude of additional counts” based on the child

pornography Cortez possessed.

On December 5, 2011, Cortez chose the first option and pleaded guilty. Cortez

agreed that the plea agreement was in his best interests, acknowledging that he would

receive the sentencing benefit and the benefit of the prosecutor agreeing not to charge

other crimes. Cortez agreed that the facts in the complaint were “fair and accurate,” and

acknowledged that the 12 videos summarized in the complaint involved “sexual assaults

or rapes” of children between two and five years old. He agreed that he had intentionally

downloaded 31 videos and 60 images of child pornography, and had done so on

“different dates [and at] different times,” as summarized in the complaint. Cortez

admitted that he intentionally searched for these videos, collected them, and stored them

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on his computer or copied them to CDs. On February 15, 2012, the district court

sentenced Cortez according to the plea agreement:

Count Sentence (Months) Disposition

1 15 Requested execution1

2 20 concurrent with above Requested execution

3 25 concurrent with above Requested execution

4 30 concurrent with above Requested execution

5 39 concurrent with above Commit

6 51 concurrent with above Commit

7 60 concurrent with above Commit

8 15 consecutive to above Commit

9 15 consecutive to above Commit

10 15 consecutive to above Commit

11 15 consecutive to above Commit

12 60 concurrent with 1-7 Commit

The district court noted that each offense allowed for permissive consecutive

sentencing. See Minn. Sent. Guidelines II.F.2 (2010). The court also stated that the 120-

month sentence was appropriate because of the extremely young ages of the victims, as

1
The district court noted that, although the sentences on counts one through four had
presumptively stayed sentences, pursuant to the plea agreement, Cortez requested
execution of those sentences, which was not technically a dispositional departure.

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well as the “deplorable, inhumane, malicious, and violent acts inflicted upon [them].”

Finally, the district court stated that an additional benefit of Cortez’s plea agreement was

that there would not likely be a federal prosecution. Cortez acknowledged that if the plea

agreement were set aside, the prosecutor could forward the matter to federal authorities.

On February 14, 2014, Cortez moved to correct his sentence, claiming that his

sentence was illegal because he engaged in one behavioral incident and should have

received a stayed sentence. The district court denied Cortez’s motion, concluding that

the 12 downloads were separate incidents. The district court also concluded that even if

the offenses arose from a single behavioral incident, the sentence was appropriate

because there were 12 victims. Finally, the district court concluded that Cortez’s

sentence did not unfairly exaggerate the criminality of his conduct. This appeal follows.

DECISION

This court issued an order construing Cortez’s appeal as a postconviction appeal.

This court reviews a district court’s ruling on a motion to correct a sentence under the

same standard used for review of a ruling on a postconviction petition, an abuse-of-

discretion standard with de novo review of questions of law. Rainer v. State, 566 N.W.2d

692, 695 (Minn. 1997) (postconviction petition); State v. Stutelberg, 435 N.W.2d 632,

633-34 (Minn. App. 1989) (motion to correct sentence). An appellate court will “afford

great deference to a district court’s findings of fact and will not reverse” a decision on

postconviction relief absent clearly erroneous findings or an abuse of discretion. Dukes

v. State, 621 N.W.2d 246, 251 (Minn. 2001).

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Separate behavioral incidents

Cortez argues that his multiple offenses2 arose from a single course of conduct

because he “possessed pornographic works, without interruption, with the sole objective

of personal use, which were discovered on his computer at the same time.”

“[I]f a person’s conduct constitutes more than one offense under the laws of this

state, the person may be punished for only one of the offenses.” Minn. Stat. § 609.035,

subd. 1 (2010). With a few exceptions, section 609.035 has been interpreted to bar

multiple sentences for crimes that arise from a single behavioral incident. State v.

Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). “Whether the violations result from a

single behavioral incident depends upon the facts and circumstances of each case.” State

v. Reiland, 274 Minn. 121, 123, 142 N.W.2d 635, 637 (1966). In determining whether

criminal acts are separate events or a single behavioral incident, a court will consider

whether the conduct was motivated by an effort to obtain a singular criminal objective.

Bookwalter, 541 N.W.2d at 295. A court will also consider unity of time and place to

determine whether multiple acts constitute a single behavioral incident. State v.

Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001).

Cortez relies on State v. Bertsch, in asserting that possession of child pornography

is appropriately compared to drug-possession cases. 707 N.W.2d 660, 665 (Minn. 2006).

In Bertsch, the defendant pleaded guilty to one count of dissemination of child

pornography and 19 counts of possession of child pornography. Id. at 663. The district

court imposed a 48-month sentence for the dissemination offense and consecutive

2
Cortez concedes that each video depicted a different victim.

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sentences for two possession charges. Id. Bertsch argued on appeal that his sentences for

the possession offenses must be vacated as included offenses of the dissemination

offense. Id. at 664. The supreme court agreed, concluding that the offenses were part of

the same course of conduct. Id. at 665. In reaching this conclusion, the supreme court

compared Bertsch’s offenses to a drug case in which offenses of sale, possession with

intent to sell, and possession were concluded to be part of the same course of conduct.

Id.; see State v. Kemp, 305 N.W.2d 322 (Minn. 1981). But when the supreme court

stated that this was a “comparison we find persuasive,” it was analyzing whether multiple

sentences could be imposed for offenses that were lesser-included offenses. Id. at 665-

66.

The supreme court also determined that the sentences were not permissible

because Bertsch pleaded guilty to the original complaint that indicated that the offenses

occurred on the same date. Id. 664-65. Thus, the supreme court held that Bertsch’s

conduct was a single behavioral incident because the possession offenses were included

in the dissemination offense and the offenses occurred on the same date. Id. at 665-66.

The comparison in Bertsch was whether possession of child pornography should

be considered a lesser offense of dissemination, like possession of cocaine was

considered a lesser offense of sale. Id. at 665. It was not a general comparison of child-

pornography possession to drug possession, as Cortez asserts. Moreover, the court in

Bertsch did not reach the issue here. See id. at 666, n.5 (stating that the court did not

reach the issue of whether “multiple sentences for multiple convictions of possession of

child pornography are permissible”).

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 For several other reasons we are not persuaded by Cortez’s argument that child-

pornography possession and drug possession are suitable comparisons leading to the

conclusion that multiple counts of possession of child pornography should be treated as a

single course of conduct. First, there is no comparison to the victims in a child-

pornography case to a drug-possession case. Second, there is often no evidence in a

drug-possession case as to when the drugs were acquired. Finally, in a drug-possession

case, the charges and sentences are based on the quantity of drugs. See, e.g., Minn. Stat.

§§ 152.021, subd. 2(a)(1) (2014) (stating that a person is guilty of first-degree controlled-

substance possession if he unlawfully possesses a total weight of 25 grams or more);

subd. 3(a) (2014) (stating that a person convicted of first-degree controlled-substance

possession may be sentenced to imprisonment for not more than 30 years); .022, subd.

2(a)(1) (2014) (stating that a person is guilty of second-degree controlled-substance

possession if he unlawfully possesses a total weight of six grams or more); subd. 3(a)

(2014) (stating that a person convicted of second-degree controlled-substance possession

may be sentenced to imprisonment for not more than 25 years). The possession-of-child-

pornography statute criminalizes possession of a single pornographic work involving a

minor. See Minn. Stat. § 617.247, subd. 4(a) (2014) (stating that a person who possesses

“a pornographic work” is guilty of a felony and may be sentenced to imprisonment for

not more than five years for a first offense and not more than ten years for a subsequent

offense).

Cortez also claims that his conduct should be treated as a single incident because

he had a single criminal objective—to collect pornography for his personal use. Cortez’s

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goal of “personal sexual gratification” is similar to “motivation by . . . perverse sexual

desires,” which this court has held is too broad of an objective to be inclusive of multiple

instances of sexual contact with a juvenile. State v. Secrest, 437 N.W.2d 683, 685 (Minn.

App. 1989), review denied (Minn. May 24, 1989). Secrest relied in part on State v.

Eaton, in which the supreme court determined that the defendant’s objective of swindling

as much money as possible was too broad to be a single criminal goal when the defendant

planned and executed the thefts of different checks at separate times. 292 N.W.2d 260,

267 (Minn. 1980). Similarly, Cortez’s criminal goal of collecting pornography was too

broad to be a single criminal goal when he searched for and downloaded multiple images

and videos on different dates and at different times.

Cortez admitted to the facts in the complaint that set out multiple dates and times

when he downloaded the pornographic images. He never denied that his conduct

continued over the course of years (2006-2010) and that the files were downloaded on

different dates and different times. See State v. Cannady, No. A05-811, 2006 WL

997782, at *5 (Minn. App. Apr. 18, 2006) (“It was permissible and necessary for the

district court to go beyond the ‘on or about’ time of the offense stated in the verdict and

look at the specific dates and times of file creation and last access for purposes of

determining how many sentences could be imposed.”), aff’d in part, rev’d in part on

other grounds, 727 N.W.2d 403 (Minn. 2007).

The record contains exact times of when the videos were downloaded, none of

which share the same time. Although several counts occur on the same day, the district

court determined that the amount of time between possessions was “substantially

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separate” as Cortez admitted to intentionally downloading the videos separately. Cf. State

v. Lovejoy, No. A12-1711, 2013 WL 3779192, at *1, *3 (Minn. App. July 22, 2013)

(remanding to the district court to determine whether the offenses arose from a single

course of conduct when the record was undeveloped regarding the circumstances

surrounding the downloading of 11 pictures depicting children engaged in sexual conduct

on the same date, but at different times). Because the dates and times that Cortez

downloaded are unambiguous and distinct, it supports the conclusion that the offenses are

separate incidents. Based on the record before us, the district court did not err in

concluding that the 12 downloads were separate behavioral incidents.

Exaggerate criminality of conduct

Cortez argues that even if the multiple sentences were permissible, the sentence

exaggerated the criminality of his conduct. We will not disturb a district court’s broad

discretion regarding permissive consecutive sentencing “unless the resulting sentence

unfairly exaggerates the criminality of the defendant’s conduct.” State v. Rhoades, 690

N.W.2d 135, 139 (Minn. App. 2004). An appellate court determines whether consecutive

sentencing unfairly exaggerates the criminality of the conduct by examining sentences in

similar cases. State v. Lee, 491 N.W.2d 895, 902 (Minn. 1992).

While Cortez compares his sentence to others sentenced for similar offenses, he

entirely ignores the plea agreement. Cortez negotiated the permissible 120-month

sentence because it “benefitted” him. In Rhoades, the defendant pleaded guilty to six

counts of possession of child pornography and agreed to separate sentences on each

count, to be served consecutively. 690 N.W.2d at 137. Rhoades appealed his sentence,

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but this court rejected his argument that his sentence unfairly exaggerated the criminality

of his conduct. Id. at 139-40.

But while Cortez’s acceptance of the plea offer supports a conclusion that his

sentence does not exaggerate the criminality of his conduct, it does not provide the sole

basis for affirming his sentence because it was Cortez’s right to appeal his sentence. See

Ballweber v. State, 457 N.W.2d 215, 217 (Minn. App. 1990) (“Minnesota law gives a

criminal defendant an unconditional right to appeal from any sentence imposed or

stayed.”); see also Minn. Stat. § 244.11, subd. 1 (2014) (stating that the defendant or state

may appeal from any sentence imposed or stayed by the district court).

Cortez claims that in other child-pornography-possession cases defendants

received significantly shorter sentences than his. Cortez argues that his sentence is nearly

twice as long as the sentence imposed in Rhoades. Rhoades pleaded guilty to six counts

of possession of child pornography and was sentenced to 84 months in prison. Rhoades,

690 N.W.2d at 137. This court concluded that the sentence did not unfairly exaggerate

the criminality of Rhoades’s conduct because he committed the offenses while on

probation and accessed the pornographic images from the Internet, thereby violating

conditions of his probation. Id. at 140.

Cortez pleaded guilty to 12 counts, twice as many as Rhoades. Additionally, in

Rhoades, the state agreed that the offenses were part of a single behavioral incident. Id.

at 138. Here, based on our analysis, Cortez committed separate criminal acts. The court

in Rhoades imposed a sentence on each offense; however, because the complaint made

clear that there were at least five different victims. Id. Here, the district court found that

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there were 12 victims, seven more than in Rhoades. Thus, comparing Cortez’s case to

Rhoades supports a conclusion that Cortez’s sentence does not exaggerate the criminality

of his conduct because Rhoades pleaded guilty to six counts and Cortez pleaded guilty to

12 counts, and Rhoades had five victims and Cortez had 12 victims.

Cortez compares his case to State v. McCauley, in which a jury found the

defendant guilty of two dissemination counts and 22 possession counts, and the district

court imposed sentences of 102 months for each dissemination conviction and 60 months

for each possession conviction, all served concurrently. 820 N.W.2d 577, 583 (Minn.

App. 2012), review denied (Minn. Oct. 24, 2012). But in McCauley, the district court did

not treat the possession convictions as separate behavioral incidents. Id. at 591. There

was evidence of different file names for each video, but there was no evidence that the

defendant downloaded the files on different dates. Id. at 590. Because the district court

did not treat the possession offenses as separate incidents, it is not surprising that

McCauley’s sentence is shorter than the sentence Cortez received.

In comparing Cortez’s sentence to sentences imposed for similar offenses, we are

not persuaded that a comparison leads to the conclusion that Cortez’s sentence should be

reduced. First, sentences imposed in earlier cases did not establish a sentencing ceiling;

if the facts support it, as they do here, there is nothing preventing the district court from

imposing a higher sentence. Additionally, several of the other cases Cortez cites for

comparison similarly include plea agreements. See Bertsch, 707 N.W.2d at 663

(defendant pleaded guilty to one count of dissemination of child pornography and 19

counts of possession of child pornography); Rhoades, 690 N.W.2d at 137 (defendant

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pleaded guilty to six counts of possession of child pornography and agreed to a particular

sentence); Lovejoy, 2013 WL 3779192, at *1 (defendant entered Alford plea to five

counts of possession of pornographic work involving a minor in exchange for dismissal

of six additional counts). The defendants in those cases, like Cortez, pleaded guilty in

exchange for some benefit. Cortez acknowledged the benefits he received in exchange

for pleading guilty and agreeing to a particular sentence—the prosecutor’s agreement to

not file additional charges, the prosecutor’s agreement to not forward the case for federal

prosecution, and the prosecutor’s agreement to not seek an aggravated sentence.

Comparing Cortez’s sentence to sentences imposed in similar cases supports a conclusion

that his sentence does not exaggerate the criminality of his conduct.

Affirmed.

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