State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0897

State of Minnesota,
Respondent,

vs.

Pierce Gerald Heston,
Appellant.

Filed February 16, 2021
Affirmed
Bratvold, Judge

Ramsey County District Court
File No. 62-CR-17-5343

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

John J. Choi, Ramsey County Attorney, Alexandra Meyer, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Daniel P. Repka, Repka Law, LLC, South St. Paul, Minnesota (for appellant)

Considered and decided by Reilly , Presiding Judge; Bratvold , Judge; and Cleary ,
Judge.
*

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

2
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this direct appeal from the judgment s of conviction for first - and third-degree
criminal sexual conduct, and from the district court’s order denying appellant’s petition for
postconviction relief, appellant raises two issues. First, he argues the district court abused
its discretion by denying his request for a postconviction evidentiary hearing on his claim
of ineffective assistance of counsel. Second, he contends the district court erred by denying
his motion for a downward dispositional departure at sentencing. We affirm.
FACTS
The respondent State of Minnesota charged appellant Pierce Gerald Heston with
first- and third-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(e)(i) (2014)
(causes injury and uses force or coercion) (count one), and Minn. Stat. § 609.344,
subd. 1(c) (2014 ) (uses force or coercion) (count two). The following summarizes the
evidence received during the jury trial.
In May 2016, T.O. was an 18 -year-old college freshman in St. Paul living in a
campus dormitory. On the evening of Ma y 14, 2016, T.O. and two friends drank alcohol
in T.O.’s dorm room before going a few blocks away to a house party. At the party, T.O.
consumed more alcohol. The party included T.O.’s older sister, who was a senior at the
same college and who lived with three other students, including Heston, who was also at
the house party . Sometime around 1:00 a.m. or 2:00 a.m., Heston offered to walk T.O.
home, saying that T.O.’s older sister had asked him to “make sure [T.O.] got home all
right.” Heston and T.O. walked back to T.O.’s dormitory.
3
T.O. testified that Heston followed her to her room. Once inside her room, Heston
told T.O that her sister “didn’t ask him to walk [her] home.” Heston then put his hands on
T.O.’s hips and started kissing her. T.O. “told him no and that . . . [she] didn’t want to do
it.” T.O.’s testimony described how she raised her arms up in front of her chest , hands
fisted, and was “pushing a little bit back.” T.O. testified she did not remember how she
ended up on the bed, but that Heston “had unzipped his pants and then he had grabbed [her]
head,” and “put his penis in [her] mouth.” T.O. testified that Heston was “[f]orceful,” and
she felt pain in the back of her throat. She started having a panic attack an d had trouble
breathing. T.O. testified that she has “blocked it out,” but recalls that Heston removed her
clothes and put his pen is in her vagina. She also testified that it was “really painful and
there was a lot of blood.” T.O. testified that she left the room to go to the bathroom where
she contacted three friends.
One of the friends, I.M., was in a nearby dormitory , walked over to T.O.’s
dormitory, and found T.O. at the exterior door slouched over and crying. I.M. noticed that,
as Heston was leaving, T.O. stiffened up and hid behind her. They returned to T.O.’s room
where I.M. “noticed that there was blood on the mattress.” T.O. asked I.M. to leave. I.M.
left, but contacted another friend, M.S., and told her something was wrong with T.O.
M.S. went to T.O.’s room, and, shortly afterwards , T.O. went to the bathroom to
shower. M.S. heard crying, entered the bathroom, and saw “a trail of blood through t he
whole bathroom.” M.S. found T.O. “covered in blood” and crying. M.S. helped T.O., who
said, “it was her sister’s roommate who had done it.” They called campus security, who
4
responded, and M.S. accompanied T.O. to the emergency room, where T.O. was treated
for sexual assault.
A sexual-assault nurse examined T.O. and later testified, “The thing that I remember
the most was the amount of blood that was on the ER bed, because I’ve never seen that
before.” The nurse explained that T.O.’s blood “soaked through her clothing” and onto the
bed. The nurse photographed T.O.’s bruises and abrasions, which the district court received
as exhibits. The nurse’s testimony described injuries to T.O.’s shins, knees, buttocks, left
arm, vagina, mouth, and throat.
The nurse also testified that she observed broken blood vessels in T.O.’s mouth and
throat which “was consistent with what [T.O.] reported of an oral assault.” The nurse
testified that she observed a tear extending through the labia and into the vaginal opening,
but given “the amount of blood that was inside” T.O.’s vaginal cavity, she “wasn’t able to
visualize if there was anything internally” injured. Lastly, a forensic scientist testified about
other physical evidence, including T.O.’s blood test, which showed an a lcohol
concentration of 0.089 at 7:45 a.m.
During the jury trial, the s tate offered testimony from T.O., her older sister, I.M.,
M.S., other campus witnesses, the sexual-assault nurse, two police officers, and a Bureau
of Criminal Apprehension forensic scientist . Heston offered testimony by a
sexual-assault-investigation consultant, an emergency-room physician, and, after waiving
his right to remain silent, Heston testified on his own behalf.
Heston testified that T.O. invited him to her room . Heston also testified that, after
they had a drink, they began making out, which progressed into groping, removing their
5
clothes, and having consensual sex. Heston testified that T.O. “was a full participa nt and
that she was enjoying it,” they did not have “rough sex,” and he did not notice any evidence
of injuries to T.O. Heston also testified that he was a member of the college’s track and
football teams, weighs 310 pounds, and is 6 feet, 1 inch tall. Heston acknowledged that he
outweighs T.O. and is bigger than she is.
The jury returned a guilty verdict on both counts and answered special verdict
questions where they found Heston did not use force, found he used coercion, and found
he did not use both force and coercion in committing the offense. The district court referred
Heston for a presentence investigation (PSI) and a psychosexual evaluation.
The PSI report summarized Heston’s interview and stated that his “callousness and
lack of emotion were notable when describing the offense. He demonstrated a complete
lack of empathy for the victim.” The report also stated that Heston “minimized his actions
by describing a consensual sexual encounter,” “denied having any knowledge of hurting
the victim and denied seeing any blood,” and “presented absolutely no empathy for the
victim.” The report concluded that Heston “clearly does not comprehend the severity of his
actions or how the y have affected the victim.” The Minnesota Sentencing Guidelines
recommended a sentence of 144-172 months, and the report recommended that the district
court sentence Heston at “the high end of the box” to serve 172 months in prison.
During the sentencing hearing, the district court told the parties that it had received
the PSI report, Heston’s motion for a dispositional departure, and asked for corrections to
the PSI report. Heston’s attorney relied on a memorandum previously filed with the court,
and also argued that the district court should grant a downward dispositional departure by
6
staying execution of the sentence, along with a jail sentence, probation, and treatment. The
state disagreed and asked the district court to impose an executed sentence of 156 months.
The district court heard a statement by T.O.’s sister, Heston read a statement and
apologized, and the district court said it had read other letters submitted by the parties.
The district court denied Heston’s motion and sentenced him to 150 mon ths in
prison. Heston appealed, and the court of appeals stayed the appeal to permit Heston to
seek postconviction relief. Heston’s postconviction petition argued that his trial attorney
did not provide him with effective ass istance of counsel because the attorney did not
prepare a complete defense. Heston’s petition included his affidavit and an email exchange
in which his trial attorney discussed the state’s evidence of force, stated that she did not
“think there’s really a good coercion argument in the facts ,” and explained that she
expected the state “will lean more on ‘force.’” Heston argued that his trial attorney failed
to consider or prepare him for the state’s alternative claim that Heston coerced T.O.
The district court denied the postconviction petition without an evidentiary hearing:
“[n]othing” in the trial attorney’s email “or in any of her representation of [Heston] before,
during, or after trial, evidences a lack of legal understanding or suggests that she put forth
anything less than a vigorous defense.” This court then reinstated the appeal and dissolved
the stay.
7
DECISION
I. The district court did not abuse its discretion by denying Heston’s petition for
postconviction relief without an evidentiary hearing.

Heston argues that the district court erred in denying his postconviction petition
without an evidentiary hearing because his claim of ineffective assistance of counsel turned
on disputed material facts. The state respon ds that, even if the facts alleged in the
postconviction petition and Heston’s affidavit are taken as true, he failed to sufficiently
allege that his trial attorney’s representation was objectively unreasonable or that the trial
outcome would have been different absent his attorney’s deficiencies.
“[A] person convicted of a crime” may seek postconviction relief by filing a petition
claiming that the conviction “violated the person’s rights under the Constitution or laws of
the United States or of the state.” Minn. Stat. § 590.01, subd. 1(1) (2018). “Unless the
petition and the files and records of the proceeding conclusively show that the petitioner is
entitled to no relief,” a district court must hold an evidentiary hearing on postconviction
relief. Minn. Stat. § 590.04, subd. 1 (2018); see also Reed v. State , 925 N.W.2d 11, 18
(Minn. 2019). An appellate court review s a district court’s denial of a petition for
postconviction relief for abuse of discretion. Id. “A postconviction court abuses its
discretion when its decision is based on an erroneous v iew of the law or is against logic
and the facts in the record.” Brown v. State, 895 N.W.2d 612, 617 (Minn. 2017) (quotation
omitted).
To determine whether an evidentiary hearing is required, “a postconviction court
considers the facts alleged in the petit ion as true and construes them in the light most
8
favorable to the petitioner.” Andersen v. State , 913 N.W.2d 417, 422 –23 (Minn. 2018)
(quotation omitted). If there are material facts in dispute and “the allegations in the petition,
if true, would entitle t he petitioner to relief, then the court must schedule an evidentiary
hearing.” Martin v. State, 825 N.W.2d 734, 740 (Minn. 2013). But the postconviction court
need not hold an evidentiary hearing “if the petitioner fails to allege facts that are sufficient
to entitle him or her to the relief requested.” Leake v. State, 737 N.W.2d 531, 535 (Minn.
2007).
For Heston to obtain relief on his claim of ineffective assistance of counsel, his
petition must allege facts showing that (1) his trial attorney’s representation fell below an
objective standard of reasonableness and (2) the trial outcome would have been different
absent counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88,
694, 104 S. Ct. 2052, 2064, 2068 (1984). “We need not address both the performance and
prejudice prongs if one is determinative.” State v. Rhodes , 657 N.W.2d 823, 842 (Minn.
2003).
As to the first step of the Strickland analysis, “[t]he objective standard of
reasonableness is defined as representation by an attorney exercising the customary skills
and diligence that a reasonably competent attorney would perform under similar
circumstances.” State v. Hokanson , 821 N.W.2d 340, 358 (Minn. 2012) (quotation
omitted). “[T]here is a strong presumption th at counsel’s performance was reasonable.”
Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013).
Heston’s claim of ineffective assistance of counsel relies on an email exchange with
his trial attorney, which Heston contends shows that his attorney did not prepare a defense
9
to the coercion component of the state’s two charges. As for count one, first -degree
criminal sexual conduct requires the state to prove beyond a reasonable doubt that Heston
(1) engaged in sexual penetration with another person, (2) used for ce or coercion to
accomplish sexual penetration , and (3) caused personal injury to the victim. Minn. Stat.
§ 609.342, subd. 1(e)(i). As for count two, t hird-degree criminal sexual conduct requires
the state to prove beyond a reasonable doubt that Heston (1) engaged in sexual penetration
with another person and (2) used force or coercion to accomplish the penetration . Minn.
Stat. § 609.344, subd. 1(c). Statutes define force and coercion.1
In the email exchange, Heston asked whether the prosecution is “more than
likely . . . using the injury aspect to help their force case? Or do you think they are going
to push more coercion based on what I ‘said’?” Heston’s trial attorney responded:
“Force” under the statute can include things that don’t result in
an injury, like pinning someone down, pushing them, pulling
their hair, things like that. My guess is that they are trying to
say “force” because she’s claimed that you “threw her onto the

1 Force is defined as
the infliction, attempted infliction, or threatened infliction by
the actor of bodily harm or commission or threat of any other
crime by the actor against the complainant or another, which
(a) causes the complainant to reasonably believe that the actor
has the present abilit y to execute the threat and (b) . . . also
causes the complainant to submit.
Minn. Stat. § 609.341, subd. 3 (2014). Coercion is defined as
the use by the actor of words or circumstances that cause the
complainant reasonably to fear that the actor will inflict bodily
harm upon the complainant or another, or the use by the actor
of confinement, or superior size or strength, against the
complainant that causes the complainant to submit to sexual
penetration or contact against the complainant’s will. Proof of
coercion does not require proof of a specific act or threat.
Minn. Stat. § 609.341, subd. 14 (2014).
10
bed” and then “forced” her to perform oral sex —so, pushing
someone can be use of force, grabbing someone’s head/face
can be use of force, etc. I don’t think there’s really a good
coercion argument in the facts (but I could be wrong —
prosecutors can come up with weird, nonsense arguments)
since usually coercion involves things like threatening to harm
someone if they don’t cooperate, displaying a weapon to get
them to cooperate, trying to convince them to cooperate by
saying they’ll lose their job/housing/etc. if they don’t, that sort
of stuff. I don’t see a nything like that in the allegations so I
think they will lean more on “force” and her claims that you
pushed her/grabbed her head/etc.

Heston’s affidavit stated that he “interpreted” this email “to mean that the state could
not argue for a conviction based on coercion.”
2 Heston also attested that, when they met to
prepare the day before Heston testified, his trial attorney “did not cover any questions
relating to [Heston’s] purported use of coercion to engage in sexual penetration with the
victim.” In the same paragraph, Heston’s affidavit added, however, that his trial attorney
“did discuss counterarguments to coercion.” Heston’s affidavit also stated that he was “in
disbelief when the jury returned its ‘guilty’ verdicts on the basis that I coerced the victim.”
The district court denied postconviction relief, in part, because it found that
Heston’s trial attorney’s decision to “prepare a defense focused [] primarily on ‘force’ was
a tactical decision that was not unreasonable given the facts alleged in the criminal

2 The district court rejected this averment because it found that, in the email, Heston’s trial
attorney “explained what she believed the state’s focus would be at trial, without making
promises or guarantees.” The district court also determined that Heston’s “interpretation of
[his trial attorney’s] legal advice does not prove that her performance fell below the
standard of objective reasonableness.” We agree with the district court and note that
Heston’s brief to this court alludes to this averment without making a cogent argument.
11
complaint and the information disclosed by the state before trial.” Heston contends that the
district court erred by characterizing this as a tactical decision.
Appellate courts “will not typically disturb the strategic or tactical decisions of trial
counsel.” State v. Beecroft, 813 N.W.2d 814, 845 (Minn. 2012). Trial strategy includes the
extent of trial counsel’s investigation and her selection of evidence presented to the jury.
Andersen, 830 N.W.2d at 10 . The supreme court has held that “[t ]he determination of
which defenses to raise represents an attorney’s trial strategy.” State v. Vang, 847 N.W.2d
248, 267 (Minn. 2014). Indeed, “[w]hat evidence to present and which witnesses to call at
trial are tactical decisions properly left to the dis cretion of trial counsel.” State v. Mems ,
708 N.W.2d 526, 534 (Minn. 2006).
Heston argues that his trial attorney’s performance fell below the objective standard
of reasonableness because her “decision to not p repare a complete defense in itself” was
unreasonable and “resulted from inattention, not reasoned, strategic judgements.” Heston
cites Wiggins v. Smith , which states that an attorney’s conduct is unreasonable if “their
failure to investigate thoroughly resulted from inattention, not reasoned strategi c
judgment.” 539 U.S. 510, 526, 123 S. Ct. 2527, 2537 (2003).
We are not persuaded for five reasons. First, Heston’s affidavit alleged no facts
suggesting that his trial attorney’s failure to focus on the state’s alternative theory of
coercion resulted from inattention . To the contrary, Heston’s affidavit included an email
exchange that was five pages long and covered force and coercion in some detail. Heston’s
affidavit also averred that his attorney “always answered my questions timely, completely,
and thoughtfully.”
12
Second, Heston’s argument rests on a mischaracterization of his own affidavit. His
brief to this court asserts that “his trial attorney did not discuss any counterarguments to a
claim that he coerced the victim into engaging in sexual penet ration.” (Emphasis added.)
But Heston’s affidavit says the opposite: “To the best of my recollection, [Heston’s trial
attorney] did discuss counterarguments to coercion.” (Emphasis added.)
Third, Heston’s argument rests on a mischaracterization of the dist rict court’s
decision. His brief to this court asserts that “[t]he district court further reasoned that
appellant’s petition ‘evidences a lack of legal understanding or suggests that his trial
attorney put forth anything less than a vigorous defense of appellant.’” (Emphasis added.)
The district court actually found that “[n]othing in [the trial attorney’s] email to [Heston],
or in any of her representation of [Heston] before, during, or after trial, evidences a lack of
legal understanding or suggests that she put forth anything less than a vigorous defense of
[Heston].”
Fourth, Heston points out that he attested his trial attorney did not prepare him to
testify in response to questions about coercion and that this is unreasonable because
coercion was the state’s alternative theory. Even if Heston’s affidavit is taken as true and
we set aside that he also averred that his attorney discussed counterarguments to coercion,
the district court found that Heston’s trial attorney’s decision to focus on force was
reasonable. The district court reasoned that “the facts alleged in the criminal complaint and
the information disclosed by the state before trial” supported the trial attorney’s decision.
Indeed, the complaint alleged that “Heston grabbed T.O. by her hips,” “threw T.O. down”
onto the bed, “forced his penis into [her] mouth,” “forced her to have vaginal intercourse,”
13
and described various severe injuries to T.O.’s vagina and throat. Because the facts alleged
against Heston reasonably suggested that the state was more likely to argue force than
coercion, we conclude that Heston’s affidavit did not provide evidence that his trial
attorney’s preparation of Heston fell below an objective standard of reasonableness.3
Finally, Heston’s petition, even when viewed favorably to him, at its heart
challenged his trial attorney’s strategy and tactics because he claims she unreasonably
focused on the force component of the state’s case. But precedent instructs that we rarely
review ineffective-assistance-of-counsel claims based on trial strategy or tactics . Vang,
847 N.W.2d at 267-68; Mems, 708 N.W.2d at 534.
For all of these reasons, w e conclude that Heston’s petition fail ed to allege facts
showing that his trial attorney’s representation fell below an objective standard of
reasonableness. Thus, the district court did not abuse its discretion by denying an
evidentiary hearing and we affirm based on the first step in Strickland without considering
the second step. See Rhodes, 657 N.W.2d at 842.
II. The district court did not abuse its discretion by imposing a guideline s
sentence.

Heston argues that the district court abused its discretion by denying his motion for
a downward dispositional departure because it failed to consider Heston’s reasons for the

3 This view of the state’s case is also supported by the trial record. Based on the state’s
cross-examination and closing argument, the state’s case emphasized force. During
Heston’s cross-examination, the prosecuting attorney asked “[h]ow much force do you
think you used,” “[w]ere you having rough sex,” “[y]ou’re the one grabbing her,” “[y]ou’re
the one picking her up,” “you were all over her body?” During closing arguments, the
prosecuting attorney repeatedly referred to Heston’s use of “force ” and only mentioned
coercion when discussing the statute or providing a definition.
14
departure. The state responds that no abuse of discretion occurred because the district court
thoroughly evaluated the information, evidence, and arguments presented during the
sentencing hearing, and imposed a sentence within the Minnesota Sentencing Guidelines.
The district court must impose a presumptive sentence in accordance with the
guidelines, “unless there exist identifiable, substantial, and compelling circumstances to
support a departure.” Minn. Sent. Guidelines 2.D.1 (Supp. 2015). “Whether to depart from
the guidelines rests within the district court’s discretion, and this court will not reverse the
decision absent a clear abuse of that discretion.” State v. Olson , 765 N.W.2d 662, 664
(Minn. App. 2009) (quotation omitted). “Accordingly, a sentencing court can exercise its
discretion to depart from the guidelines only if aggravating or mitigating circumstances are
present, and those circumstances provide a substantial and compelling reason not to impose
a guidelines sentence.” State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014) (quot ations and
citations omitted). Only in a rare case, will we reverse the district court’s decision to impose
a presumptive sentence. State v. Pegel, 795 N.W.2d 251, 253 (Minn. App. 2011).
The guidelines provide two types of sentencing departures: dispositional and
durational.4 “A ‘dispositional departure’ occurs when the court orders a disposition other
than that recommended in the Guidelines.” Minn. Sent. Guidelines 1.B.5.a (2014). In other

4 Heston sought a dispositional departure, so we note, but do not discuss, the district court’s
discretion to impose a durational departure. A durational departure “is a sentence that
departs in length from the presumptive guidelines range.” State v. Solberg , 882 N.W.2d
618, 623 (Minn. 2016) (citing Minn. Sent. Guidelines 1.B.5.b). A durational departure
turns on factors that reflect the severity of the offense , not the characteristics of the
defendant. Id. A downward durational departure is justified “if the defendant’s conduct
was significantly less serious than that typically involved in the commission of the
offense.” Id. at 624 (quotation omitted).
15
words, a “dispositional departure places the offender in a different setting than that called
for by the presumptive guidelines sentence.” Solberg, 882 N.W.2d at 623. For example, a
district court imposes a dispo sitional departure when the guidelines presume
imprisonment, but the court stays execution and places the defendant on probation. Id. “A
dispositional departure typically focuses on characteristics of the defendant that show
whether the defendant is particularly suitable for individualized treatment in a probationary
setting.” Id. (emphasis added) (quotation omitted).
Circumstances supporting a dispositional departure include whether the defendant
is “particularly a menable” to probation or treatment. State v. Trog , 323 N.W.2d 28, 31
(Minn. 1982). The supreme court in Trog provided a nonexclusive list of factors relevant
to determining particular amenability: “the defendant’s age, his prior record, his remorse,
his cooperation, his attitude while in court, and the support of friends and/or family.” Id.
The district court need not consider all of the Trog factors before it imposes the
presumptive sentence. Pegel, 795 N.W.2d at 254. Rather, the district court must consider
the circumstances for and against departure and deliberately exercise its discretion. Id. at
255. Even if the defendant is particularly amenable to probation or treatment, the district
court is not required to impose a downward dispositional departure. Olson, 765 N.W.2d at
664–65.
The district court must explain a decision to depart in writing , but a written
explanation is not required when the court considers the reasons for a departure and decides
to impose the presumptive sentence. State v. Curtiss , 353 N.W.2d 262, 263 (Minn. App.
1984). Indeed, we have consistently held that a district court need not explain its reasons
16
for imposing a presumptive sentence. State v. Johnson, 831 N.W.2d 917, 925 (Minn. App.
2013), review denied (Minn. Sept. 17, 2013).
Heston moved for a downward dispositional departure and filed a 21 -page
memorandum that contested the findings of the PSI report and the psychosexual evaluation,
and argued the Trog factors weighed in his favor. During the sentencing hearing, the district
court heard arguments from both parties about Heston’s amenability to probation. Heston’s
attorney expanded on Heston’s employment opportunities, his likeliho od of recidivism ,
and his cooperation during the lit igation process. The state argued that substan tial and
compelling reasons did not support a departure based on Heston’s amenability because he
had not accepted responsibility for his actions and still maintained his innocence. T.O.’s
sister read a statement explaining the impact of Heston’s offenses on T.O.
Heston read his own statement, which stated that “[t]hrough these reflections and
self-analysis, I realize no matter how you roll the dice the woman left our experience
together with the reality that I sexually assaulted her. And that is a reality she’ll live with
for the rest of her life.” Heston repeated this sentiment after the court commented on his
change of demeanor from the trial to the sentencing hearing. The district court then asked
Heston whether he sexually assaulted T.O. and followed up with related questions.
Heston contends that the district court abused its discretion because, during the
sentencing hearing, the court did not discuss Heston’s age, his attitude while in court, or
his prior record. The district court, however, explicitly addressed Heston’s demeanor
before trial, during trial, and at the sentencing hearing. The court also explicitly considered
Heston’s remorse and the support of Heston’s friends and family. The only Trog factors
17
not explicitly addressed by the district court during the sentencing hearing— Heston’s age
and his prior record —were addressed in Heston’s sentencing memorandum and the PSI
report, both of which the court reviewed before the hearing and referenced during the
hearing.
The state argues that the sentencing-hearing transcript evidences that the court “was
fully aware of the arguments for and against a departure, carefully evaluated the
information, and used that information to make [its] decision to deny the departure
motion.” We agree and note that Heston’s argument fails to address the district court’s
comments about Heston’s lack of remorse. As the district court announced the reasons for
its decision, the district court commented: “[h]ow is [Heston] amenable when he stands
before me now and can hardly admit that he committed criminal sexual conduct in the first
degree . . . the language that Mr. Heston uses reveals kind of some questions in his mind
about whether he did something wrong.”
5
An offender’s remorse, or lack thereof, is a relevant consideration at sentencing. See
Trog, 323 N.W.2d at 31 (clarifying that a defendant’s remorse and attitude in court are
relevant factors in deciding whether to depart dispositionally); see also Soto , 855 N.W.2d
at 311 (stating that defendant’s remorse is “just one” of several factors a court can consider
when “determining whether the defendant is particularly amenable to probation”). A
“district court is properly tasked with deciding whether a defendant’s actions express

5 The district court explained that Heston’s statements suggested that the victim “thought”
she was sexually assaulted, to which Heston responded: “I coaxed her into bed. I apologize,
Your Honor, I sexually assaulted her.” Heston later said he meant to say “coerced,” not
“coaxed.”
18
genuine remorse and how much weight to give to that remorse.” Solberg, 882 N.W.2d at
626; see Soto, 855 N.W.2d at 311 (“[W]hether Sotos’ apology was genuine or should be
given much weight were matters for the district court to decide.”).
Based on the record, we conclude that the district court did not abuse its discretion
by denying Heston’s motion for a dispositional departure and imposing a guideline
sentence.
Affirmed.