Adalberto Sevilla, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0498

Adalberto Sevilla, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 28, 2017
Affirmed
Reyes, Judge

Ramsey County District Court
File No. 62-CR-15-4649

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, La ura Rosenthal, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Considered and decided by Reyes, Presid ing Judge; Jesson, Judge; and Toussaint,
Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant argues in this postconviction a ppeal that his 280-month sentence for his
conviction of first-degree criminal sexual c onduct should be reduced because it unfairly
exaggerates the criminality of his conduct. We affirm.
FACTS
On June 21, 2015, appellant Adalberto Sevilla found himself alone in a house with
a 13-year-old girl. Appellant entered the 13 -year-old’s bedroom, th reatened her with a
knife, removed her clothing, and penetrated her anus and vagina. Appellant stopped when
the girl’s mother entered the room.
Respondent State of Minnesota charged appellant with three counts of first-degree
criminal sexual conduct in violation of Minn . Stat. § 609.342, subd. 1(c) (great bodily
harm), subd. 1(d) (dangerous weapon), subd. 1(e)(i) (personal injury) (2014). Prior to trial,
the state filed a notice of intent to seek an upward durational depa rture, asserting as
aggravating factors particular vulnerability, zone of privacy, particular cruelty, and
appellant’s prior criminal-sexual-conduct conviction.
Pursuant to a plea agreement, appellant pl eaded guilty to one count of first-degree
criminal sexual conduct in violation of Minn . Stat. § 609.342, su bd. 1(d) (dangerous
weapon). In exchange, the stat e dismissed the other charges, and the parties agreed to a
sentencing cap of 280 months in prison if appellant had four or fewer criminal-history
points. Appellant also waived his right to have a trial on the aggravating factors and
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admitted that he has a prior criminal-sexual-conduct conviction from 1997 involving a 13-
year-old girl.
The presentence investigation report dete rmined that appellant had two criminal-
history points and recommended a 280-month sentence. The state requested a 280-month
sentence, and the district court sentenced ap pellant to 280 months in prison with lifetime
conditional release. The presumptive sentence is 168 months. Minn. Sent. Guidelines 4.B
(2014). The district court’s reasons for the sentence and upward departure were that “this
is a subsequent sex offense, it was a violent offense, and . . . [appellant] pose[s] an unjust
risk of public safety and a danger to children in the community.”
Appellant filed a petition for postconv iction relief seeking a reduction in his
sentence, arguing that it exagge rates the criminality of his conduct. The postconviction
court denied appellant’s petition for relief. This appeal follows.
D E C I S I O N
Appellant argues that the postconviction court abused its discretion in affirming his
280-month sentence because the sentence exaggerates the criminality of his conduct, and
appellant requests a reduction in his sentence to 249 months. We are not persuaded.
We review a postconviction court’s decision to deny a petition for relief for an abuse
of discretion. Carpenter v. State, 674 N.W.2d 184, 189 (Minn. 2004). “A postconviction
court abuses its discretion when its decision is based on an erroneous view of the law or is
against logic and the facts in the record.” Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012)
(quotation omitted).
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A departure is justified where the reasons supporting it are proper and the severity
of the sentence is within the district court’s broad discretion. State v. Shattuck, 704 N.W.2d
131, 139-40 (Minn. 2005). “[G]enerally in a case in which an upward departure in sentence
length is justified, the upper limit will be double the pres umptive sentence length.” State
v. Evans, 311 N.W.2d 481, 483 (Minn. 1981) (emphasis omitted); see also Dillon v. State,
781 N.W.2d 588, 596 (Minn. App. 2010) (“We have found no cases in which an appellate
court has held that adequate gr ounds to depart exist but that the district court abused its
discretion by extending the sentence up to twice its pres umptive term.”), review denied
(Minn. July 20, 2010). To de termine whether a sentence exaggerates the criminality of a
defendant’s conduct, courts will compare th e defendant’s sentence to those received by
other offenders for similar offenses. State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988).
Appellant does not dispute that a departure is justified based on his prior criminal-
sexual-conduct conviction, but argues that th e postconviction court improperly compared
his sentence to those of other offenders because appellant’s sentence is not proportional to
other departures based on a prior sex offens e. Appellant supports his argument with
unpublished decisions, which are not binding on this court. Minn. Stat. § 480A.08, subd.
3 (2016).
This court has previously affirmed a do uble-durational sentencing departure for a
first-degree criminal-sexual-conduct conviction where the offender had a prior sex offense.
See, e.g. , State v. Dalsen , 444 N.W.2d 582, 583-84 (Minn. App. 1989), review denied
(Minn. Oct. 13, 1989). Appe llant’s 280-month sentence is 1.67 times the presumptive
sentence. Accordingly, appellant has not es tablished that his sentence exaggerates the
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criminality of his conduct because appellant’s sentence is not disproportionate to those
received by other offenders for a similar offens e. The postconviction court did not abuse
its discretion in denying appellant’s request for relief.
Affirmed.