State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0515

State of Minnesota,
Respondent,

vs.

Oscar Armando Vargas,
Appellant.

Filed December 16, 2019
Affirmed in part, reversed in part, and remanded
Worke, Judge

Mower County District Court
File No. 50-CR-17-2162

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Kristen Nelson, Mower County Attorney, Scott K. Springer, Assistant County Attorney,
Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Connolly, Judge; and Stauber,
Judge.*

* Retired judge of the Minnesota Court of Appeals, 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
WORKE, Judge
Appellant argues that the district court abused its discretion by denying his motion
for a downward dispositional departure and imposing consecutive sentences, and erred by
imposing a lifetime-conditional- release period. We affirm appellant’s sentences, but
reverse and remand the imposition of the lifetime conditional release.
FACTS
In September 2017, a 15- year-old girl reported that appellant Oscar Armando
Vargas, her stepbrother, had been sexually abusing her for the past nine years. She reported
that Vargas b egan having sexual intercourse with her when she was 10 or 11 years old.
Vargas was charged with five counts of first-degree criminal sexual conduct. On
February 20, 2018, Vargas pleaded guilty to two counts of first-degree criminal sexual
conduct, and the rem aining charges were dismissed. The state sought consecutive
sentences, and Vargas sought a downward dispositional departure. The district court
ordered a presentence investigation (PSI) and a psychosexual evaluation and set sentencing
for June 14, 2018.
Vargas failed to appear for his scheduled PSI and psychosexual evaluation. Vargas
did appear for his sentencing on June 14, but because he did not comply with the PSI
process, the district court could not proceed with sentencing. The district court noted that
Vargas planned to move for a dispositional departure and stated “the more that you don’t
cooperate in getting the things done . . . the less likely [that motion] is going to be granted.”
Vargas was held in custody until his sentencing.
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On January 2, 2019, the district court held Vargas’s sentencing hearing. The victim
read a victim-impact statement describing the sexual assaults and how the abuse throughout
her childhood affects her. Vargas argued for a downward dispositional departure, stating:
I understand what I did to my stepsister. I want to apologize to
the victim . . . and the family . . . for affecting the way [the
victim] is being impacted with them and their lives. I
understand what I have done is very serious. . . . I understand
that, you know, what I did, sexually abuse. I know I did that
to her, and I feel sorry. I am really, really sorry. I know I
impacted her life by a lot. Like she said in her statement, that
she couldn’t tell anybody. She had everything held inside. . . .
[I]t just looks like . . . it hurts her. It hurts me, as well. It hurts
the family.
Your Honor, I feel like I . . . should get a departure. The
reason why is because . . . . I have no criminal record behind
me. I have graduated college, one year. I graduated high
school. Your Honor, I don’t do drugs. I don’t drink. Your
Honor, I am 23 years old. I understand what I have done, and
I would like to have a second chance. I believe in second
chances for the reason of everybody makes mistake s.
Everybody makes mistakes. I made a very, very, very big
mistake, Your Honor. I see it, and I know I feel it. I know I
can do better. I have future plans of going back to school. . . .
I have always been working. I went to school. I graduated. I
wasn’t a guy that stayed at home all day, anything like that. I
was active. I was in sports. I played soccer.

The district court denied Vargas’s departure motion, finding that nothing about
Vargas made him “particularly amenab le,” and stating that it would be “a complete
injustice” to grant Vargas’s motion. The district court sentenced Vargas to two consecutive
144-month sentences. The district court stated that it imposed consecutive sentences
because Vargas could have been convicted of the five counts in the complaint and received
a longer sentence, the victim suffered for years and will continue to deal with it, Vargas
appeared to have carried on a normal life while he was sexually assaulting the victim, and
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the public needed to be protected. The district court also imposed a lifetime conditional
release after imposing the second sentence. This appeal followed.
D E C I S I O N
Departure
A district court may depart from a presumptive guidelines sentence when
“identifiable, substantial, and compelling circumstances” exist that make the case atypical.
State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014) (quotation omitted). While a district
court focuses more on the defendant and his particular amenability to “individualized
treatment in a probationary setting,” in considering a dispositional-departure request, State
v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983); State v. Trog, 323 N.W.2d 28, 31 (Minn.
1982), it may also consider offense-related factors in deciding whether a departure is
appropriate. State v. Walker , 913 N.W. 2d 463, 468 (Minn. App. 2018). A district court
has broad discretion in deciding whether to depart, State v. Kindem, 313 N.W.2d 6, 7
(Minn. 1981), and this court will reverse only if there is “a clear abuse of discretion.” State
v. Abrahamson, 758 N.W.2d 332, 337 (Minn. App. 2008), review denied (Minn. Mar. 31,
2009).
Here, the district court imposed the presumptive guidelines sentence. A district
court is not required to depart from a presumptive prison sentence even if evidence in the
record shows that the defendant would be amenable to probation. State v. Olson, 765
N.W.2d 662, 664-65 (Minn. App. 2009); see also State v. Pegel, 795 N.W.2d 251, 253-54
(Minn. App. 2011) (stating that the existence of a mitigating factor does not obligate the
district court to depart). And a district court is not required to explain its reasoning for
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imposing a presumptive sentence “as long as the record shows [that it] carefully evaluated
all the . . . information presented before making a determination.” State v. Van Ruler, 378
N.W.2d 77, 80-81 (Minn. App. 1985); see State v. Johnson, 831 N.W.2d 917, 925 (Minn.
App. 2013) (stating we will generally affirm presumptive sentence when the record shows
that district court evaluated the circumstances), review denied (Minn. Sept. 17, 2013).
Vargas argues that his age (23 at the time of sentencing), his criminal-history score
of zero, and the psychosexual evaluator’s opinion that he is amenable weigh in favor of
finding that he is particularly amenable to probation. See Trog, 323 N.W.2d at 31 (stating
that in assessing whether a defendant is particularly amenable to probation, a district court
may consider age, record, remorse, cooperation, attitude in c ourt, and support of
friends/family).
But despite these facts, Vargas admitted that he began sexually abusing the victim
when he was as young as 11 years old (making the victim 4 years old). He admitted that
his abuse escalated to sexual intercourse when the victim was only 10 years old and he was
17 years old. He admi tted that he sexually assaulted the victim at least monthly. And
Vargas did not stop sexually assaulting the victim until she reported it when she was 15
years old. Thus, while Vargas is young and had no criminal-history score, he committed a
sexual assault nearly every month for at least nine years.
The district court found that there was nothing about Vargas that made him
“particularly amenable compared to people . . . convicted of the same thing.” In other
words, the district court found that there were no substantial and compelling circumstances
making the case atypical and justifying a departure. The district court further found that
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“it would be a complete injustice” if it granted Vargas’s request. When it imposed
consecutive sentences, the district court stated:
[The victim] suffered for years . . . and is going to
continue to deal with that. [Vargas] talked about it being a big
mistake and talked about [his] future plans, and all the things
that [he did], and being active and in soccer and all this. It
sounds to me like [Vargas] just carried on a regular normal life,
while [the victim] has not by any means. So . . . I still don’t
think [he is] looking at this the way [he] should.

These comments justify the denial of Vargas’s departure motion as they relate to
Vargas’s lack of remorse, and the victim ’s suffering, which the district court may
appropriately consider in deciding whether to grant a dispositional departure. See Walker,
913 N.W.2d at 468. The district court also addressed Vargas’s lack of cooperation at his
original sentencing. The district court stated that Vargas failed to follow the district court’s
directive and schedule a psychosexual evaluation and PSI, and had him taken into custody.
Based on this record, the district court carefully considered Vargas’s departure
request and did not abuse its discretion in denying it. See Van Ruler, 378 N.W.2d at 80-81
(stating that a district court does not have to explain its reasoning for imposing a
presumptive sentence when the record shows it carefully evaluated all the inf ormation
presented).
Consecutive sentences
Vargas claims that the district court failed to “carefully consider” whether the
purposes of the guidelines would be best served by consecutive sentences, and, instead,
imposed consecutive sentences “based on outrage over Vargas’s conduct” and the district
court’s perception that Vargas lacked insight. This court reviews a district court’s
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imposition of consecutive sentences for an abuse of discretion and will reverse only when
a sentence “is disproportionate to the offense or unfairly exaggerates the criminality of the
defendant’s conduct.” State v. Ali, 895 N.W.2d 237, 247 (Minn. 2017).
Despite Vargas’s claims, the record shows that the district court carefully
considered whether consecutive sentences were more appropriate than concurrent
sentences. The district court stated that it imposed consecutive sentences for several
reasons. First, Vargas could have been convicted of five counts of criminal sexual conduct
and sentenced to a longer sentence. Second, the victim suffered for years and her suffering
will continue. Third, Vargas seemingly carried on a normal life while he was sexually
assaulting the victim. Finally, the public needed to be protected for a longer period of time
because Vargas lacked real insight into what he did. The district court stated: “I still don’t
think you are looking at this the way you should. Hopef ully, at some point you will . . . .
[t]hen maybe you will have some real insight into exactly what you have inflicted because
I don’t think you do now.”
Vargas claims that “lack of insight” should not be used as a basis for imposing
consecutive sentences. But the district court connected Vargas’s apparent lack of insight
to the need to protect the public —if Vargas lacks insight into what he did, he could do it
again; thus, the public needs to be protected.
Vargas also claims that the district court failed to consider that it is his “low
cognitive functioning” that resulted in his inability to express “real insight.” But the district
court commented that Vargas “carried on a normal life.” See State v. McLaughlin, 725
N.W.2d 703, 716 (Minn. 2007) (stating that in order to be considered a mitigating factor in
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sentencing, a mental impairment must be “ extreme to the point that it deprives the
defendant of control over his actions.”). Therefore, the district court carefully considered
the appropriateness of imposing permissive consecutive sentences, and did not abuse its
discretion in doing so.
Lifetime conditional release
Finally, Vargas argues that his lifetime-conditional-release term should be vacated.
The district court imposed the lifetime con ditional release pursuant to Minn. Stat.
§ 609.3455 (2012). “Interpreting a sentencing statute is a question of law, which we review
de novo.” State v. Noggle, 8 81 N.W.2d 545, 547 (Minn. 2016). Under Minn. Stat.
§ 609.3455, subd. 7(b),
when the court commits an offender to the custody of the
commissioner of corrections for a violation of section 609.342
[first-degree criminal sexual conduct] . . . and the offender has
a previous or prior sex offense conviction, the court shall
provide that, after the offender has been released from prison,
the commissioner shall place the offender on conditional
release for the remainder of the offender’s life.

Here, after the district court announced Vargas’s sentence for his second conviction,
it stated: “because it i s a subsequent offense, [this count] carries a lifetime conditional
release period.” Vargas argues that he cannot receive a lifetime conditional release because
the district court accepted his two guilty pleas simultaneously and, thus, he did not have a
“previous or prior sex offense conviction.”
The supreme court has addressed Vargas’s claim. In State v. Nodes, the defendant
pleaded guilty to two sex offenses at the same hearing. 863 N.W.2d 77, 78 (Minn. 2015).
At the sentencing hearing, the district court stated: “I will now formally accept the pleas,
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and on count one adjudicate him guilty of criminal sexual conduct in the first degree . . .
and also on count three, criminal sexual conduct in the second degree . . . .” Id. at 79. The
district court then imposed ten-year conditional-release periods for each count, determining
that the defendant was not subject to the lifetime conditional release just because he was
sentenced for both offenses on the same day. Id.
The supreme court disagreed and concluded that “[a]s long as one conviction is
entered before the second, it is a ‘prior conviction’ under the plain language of [Minn. Stat.
§ 609.3455].” Id. at 82. The supreme court stated that nothing in the statute required “a
particular temporal gap between the convictions.” Id. The supreme court explained that
whether an offense is still in progress before the court depends
on whether a conviction has been entered on that offense.
When the court announced on the record that [the defendant]
was adjudicated “guilty of criminal sexual conduct in the first
degree,” in that instant [he] was convicted of that offense, and
in the next instant it was no longer a present offense, but was
now a past conviction. [The defendant]’s first conviction,
which occurred a moment “before” the second, was at that
point a “prior sex offense conviction.”

Id. The court stated that a “conviction” occurs when the district court accepts a guilty plea
and the acceptance is on the record. Id. at 81. Vargas asserts that applying Nodes shows
that he did not have a prior or previous conviction because his first conviction did not occur
even a moment before his second as the district court accepted the guilty pleas
simultaneously.
Vargas claims that his case is like State v. Klanderud, in which the district court
stated: “Pleas [to Count 1 and Count 4] are accepted. Judgment of guilt will be entered.”
No. A15-1897, 2016 WL 6395252, at *5 (Minn. App. Oct. 31, 2016), review denied (Minn.
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Jan. 17, 2017). This court concluded that, unlike Nodes, the record showed that the “pleas
and adjudications were accepted simultaneously”; thus, the defendant “had no previous or
prior convictions at the time he was sentenced.” Id.
Vargas also claims that his case is like State v. Rekdal, in which the district court
stated: “I’m going to accept your pleas of guilty [to Counts I and II].” No. A14-1364, 2015
WL 7199866, at *3 (Minn. App. Nov. 16, 2015). This court determined that because the
acceptance of the guilty pleas occurred simultaneously, the defendant was not convicted of
one count before the other, and therefore had no previous or prior conviction at the time he
was sentenced. Id.
Here, the district court stated: “I will accept your plea of guilty to both of those
counts.” Unlike Klanderud, the district court did not state that “[j]udgment of guilt will be
entered.” See 2016 WL 6395252, at *5. But this situation is similar to Rekdal, in which
the district court stated: “I’m going to accept your pleas of guilty [to Counts I and II].” See
2015 WL 7199866, at *3.
Also similar is State v. Broehl, in which the district court accepted the guilty pleas
by stating: “I am going to . . . adopt the recommendations here [in the plea agreement].”
No. A16-0966, 2017 WL 2535681, at *1 (Minn. App. June 12, 2017). The district court
then sentenced the defendant, including the imposition of a lifetime-conditional-release
term. Id. This court determined that because the district court accepted the guilt y pleas
simultaneously, the defendant was not convicted of any sex offense before he was
convicted of another. Id. at *3.
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The state contends that because the district court did not adjudicate guilt, Vargas
was not convicted until he was sentenced and, because he was sentenced sequentially, he
had a prior conviction. But in Broehl, this court stated that it was “inconsequential that
[the defendant] was sentenced sequentially. [Because] [t]he focus is on when the
convictions were accepted and entered and whether [the defendant] had a prior conviction
at the time the second conviction was entered.” Id. And the supreme court in Nodes stated
that a “conviction” occurs when the district court accepts a guilty plea and the acceptance
is on the record. 863 N.W.2d at 81. Therefore, sequential sentencing is inconsequential.
Additionally, it would seem an unusual course for a district court to sentence separate
counts simultaneously.
Because Vargas’s convictions occurred when the district court accepted his guilty
pleas on the record, and the district court accepted the guilty pleas simultaneously, the
district court erred by imposing a lifetime conditional release because Vargas did not have
a prior sex-offense conviction. Accordingly, we reverse and remand to the district court
for imposition of a ten-year conditional-release period on each offense.
Affirmed in part, reversed in part, and remanded.