State of Minnesota, Respondent,

This opinion will be unpublished and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
A17-1685

State of Minnesota,
Respondent,

vs.

Hakeem Manuel Rochao,
Appellant.

Filed September 10, 2018
Affirmed
Ross, Judge

Stearns County District Court
File No. 73-CR-17-2818

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

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assis tant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Florey, Judge; and Stauber,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Hakeem Rochao pleaded guilty to first -degree assault after he punched two teeth
from his girlfriend’s mout h and wrenched so many fistfuls of hair from her head that he
rendered her nearly bald. Rochao moved for a downward dispositional departure at
sentencing. The district court denied the motion. Rochao appeals , arguing that the district
court erred because h e is particularly unamenable to incarceration as is shown by his
bouncing in and out of prison. Because chronic recidivism is not a factor favor ing a
downward dispositional departure, we affirm.
FACTS
Rochao pushed his girlfriend, who was the mother of three children with Rochao,
to their basement floor during an argument. She begged him not to hit her. She told him to
leave or she would call the police , and she headed outside. Rochao followed. He knocked
her to the ground, breaking her phone. He kicked her repeatedly . Then he punched her in
the head ten to fifteen times and ripped handfuls of hair from her head. She escaped.
Missing two teeth, covered in blood, and nearly bald, she ran to a nei ghbor’s for
help. Rochao fled. Police found him covered in blood with strands of hair on his socks.
They arrested him and the state charged him with first-degree assault . Rochao pleaded
guilty.
During the presentence-investigation process, Rochao underwent two psychological
assessments of h is risk to reoffend. He scored poorly on both. The first test, the Ontario
Domestic Abuse Risk Assessment , measures the risk of future assaults. Only six percent
3
of domestic-violence offenders fall into the high -risk category with a score of seven or
higher. Rochao scored a ten. The second test, the “Level of Service/Case Management
Inventory Assessment,” rated Rochao’s risk factors poorly in all categories except one.
Rochao told the presentence investigator that he was motivated to seek professio nal help
for his mental -health and anger -management problems, which, according to Rochao,
resulted from h is difficult upbringing. He said that he was born in the Philippines,
abandoned by his parents, and ultimately discovered by an alcoholic United States sailor
who brought him to America and physically disciplined him excessively. The investigator
did not believe that Rochao sincerely wanted psychological help.
Rochao moved for a downward dispositional departure at sentencing , seeking
probation instead of his presumptive prison sentence. He claimed that he was ashamed of
himself and wanted to change for his children. The district court considered the
presentence-investigation report and listen ed to Rochao ’s testimony , his attorney ’s
argument, and the prosecutor’s argument. The district court denied Rochao’s motion and
imposed the presumptive sentence of 98 months in prison , concluding that “there [were]
no substantial and compelling reasons to grant [Rochao] a departure.” The district court
reasoned that Rochao had “been in the system for a long time and . . . refused to take help
when help ha[d] been offered” and that the only way the court could ensure that Rochao’s
girlfriend would not be a victim again at Rochao’s hands was to execute the presumptive
sentence.
Rochao appeals.

4
D E C I S I O N
Rochao argues that the district court improperly denied his motion for a downward
dispositional departure. We review a district court’s decision not to depart from
the sentencing guidelines for an abuse of discre tion. State v. Stempfley, 900 N.W.2d 412,
417–18 (Minn. 2017). A district court abuses its discretion when its decision is premised
on legal errors or clearly erroneous facts. State v. Solberg , 882 N.W.2d 618, 623 (Minn.
2016). Departures from a presumptive sentence, which “are discouraged and are intended
to apply to a small number of cases,” may occur “only when there are ‘identifiable,
substantial, and compelling circumstances to support a departure.’” Id. (quoting Minn.
Sent. Guidelines 2.D.1).
The kind of “substantial and compelling circumstances” necessary to depart from a
presumptive sentence depend on whether the departure is dispositional or durational. Id.
Durational departures are based on the seriousness of the offense, and dispositional
departures are based on the defendant’s characteristics that show whether he is
“particularly suitable for individualized treatment in a probationary setting.” Id. at 623
(quoting State v. Wright, 310 N.W.2d 461, 462 (Minn. 1981)). We have no difficulty here
concluding that the district court acted well within its broad sentencing discretion when it
rejected Rochao’s motion for a downward dispositional departure.
A district court answering a motion for a dispositional departure must deliberately
compare fa ctors for depart ing against factors for no t departing. State v. Curtiss , 353
N.W.2d 262, 264 (Minn. App. 1984). Some factors a district court may consider include a
defendant’s age, prior record, remorse, motivation to change, cooperation, attitude in court,
5
and unamenability to incarceration. State v. Soto, 855 N.W.2d 303, 308–09 (Minn. 2014);
State v. Hennessy, 328 N.W.2d 442, 443 (Minn. 1983) ; State v. Wright, 310 N.W.2d 461,
463 (Minn. 1981).
Rochao argues that he is particularly amenable to probation and that he is
particularly unamenable to incarceration. The district court found otherwise. We review
findings of fact for clear error. State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006). Rochao
relies primarily on Wright, where the supreme court upheld a downward dispositional
departure because the defendant, who had no criminal history, was particularly unamenable
to incarceration and particularly amenable to individualized treatment in a probationary
setting. 310 N.W.2d at 462–63. But the Wright court was being asked to affirm the district
court’s finding that the defendant was particularly amenable to probation, not to overturn
it, and our standard of review is deferential. And unlike the defendant in Wright, Rochao
has a lengthy criminal history of violent crimes, two risk assessments that put him at a high
risk of reoffending , nothing in his record suggesting he risks being victimized in prison ,
and no recommendation from any psychiatrist supporting probation.
We reject Rochao’s legally and logically unsupported proposition that his history of
recidivism favors placing him on probation . Taken to its reasoned end, the proposition is
self-contradictory, because it also supports the conclusion that Roch ao is unamenable to
probation in that he continues to commit violent crimes despite his having been placed on
probation multiple times before. The proposition is especially flawed here , where one of
the reasons the district court rejected the departure motion was to protect Rochao’s victim
6
from more victimization. Rochao cites nothing in the record to challenge the district court’s
finding that imprisoning him is the “only way” to protect her from him.
We similarly reject Rochao’s argument that the district court focused exclusively
on the extent of the harm he caused his victim. His premise is false. In addition to the harm
Rochao caused, the district court also focused on Rochao’s repeated failure to avail himself
of the rehabilitative aspects of probation:
You do need help. You’ve been on probation. You’ve
been involved in probation for a long, long time. You’ve been
in the system for a long time and you’ve refused to take help
when help has been offered. And I understand sometimes
people just refuse to take help. But at this point the only way I
can insure that this victim is not a victim again from your hands
or that the children don’t have to – even though they maybe
weren’t present, it’s their mother. They know things are going
on and things are going wrong. They can sense it even if they
are three, two, and one. They do know. They can sense things.
The Court is going to find that there are no substantial
and compelling reasons to grant you a departure. The only way
that this Court can guarantee that this victim is safe is to have
you in prison.

Although we disagree with Rochao that the district court failed to “deliberately
compare” the factors for departing against factors for not departing, as it is required to do,
Curtiss, 353 N.W.2d at 264, we observe that this is a somewhat arguable case only because
of the cursory nature of the district court’s analysis . The district court’s discussion of
Rochao’s argument was brief; but our review of the brief discussion in the context of the
entire record affords us bare ground to discern the district court’s reasoning and in fer that
it deliberately compared factors weighing both for and against probation.
Affirmed.