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This opinion will be unpublished and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
A19-1608

State of Minnesota,
Respondent,

vs.

Eduardo Delariva-Larios,
Appellant.

Filed July 20, 2020
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Ramsey County District Court
File No. 62-CR-18-4976

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M. , Presiding Judge; Reilly, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
On appeal from his conviction of first -degree criminal sexual conduct, appellant
argues that the district court abused its discretion by denying his motion for a downward

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dispositional departure, and erred by imposing a lifetime term of conditional release. We
affirm ap pellant’s conviction and prison sentence . But we reverse the district court’s
imposition of a lifetime term of conditional release and remand for resentencing.
D E C I S I O N
I. The district court did not abuse its discretion by denying appellant’s motion
for a downward dispositional departure.
The Minnesota Sentencing Guidelines prescribe a sentence or a range for the
sentence that is “presumed to be appropriate.” State v. Soto, 855 N.W.2d 303, 308 (Minn.
2014) ( quotation omitted). The district court “must pronounce a sentence within the
applicable range unless there exist identifiable, substantial, and compelling circumstances”
distinguishing the case and overcoming the presumption in favor of a guidelines sentence.
Id. (quotation omitted). The decision to depart from the sentencing guidelines rests within
the discretion of the district court and will not be disturbed absent a clear abuse of
discretion. State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015); State v. Pegel, 795 N.W.2d
251, 253 (Minn. App. 2011). Our review of a district court’s decision whether to impose
a sentencing departure is “extremely deferential.” Dillon v. State, 781 N.W.2d 588, 59 5-
96 (Minn. App. 2010), review denied (Minn. July 20, 2010).
Appellant Eduardo Delariva -Larios pleaded guilty to first - and second -degree
criminal sexual conduct for touching the victim’s bare vagina and breasts with his hands
when she was fifteen and he was mo re than 48 months ol der than the victim and in a
position of authority . Appellant moved for a downward dispositional or durational
departure from the presumptive guidelines sentence. The district court denied the motion,

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adjudicated appellant guilty, and imposed the presumptive sentence. Appellant challenges
the district court’s denial of his motion for a downward dispositional departure 1 on the
grounds that he is particularly amenable to treatment in a probationary setting , showed
remorse, cooperated with the police, and has the support of his friends and family.
A defendant’s “‘particular amenability to individualized treatment in a probationary
setting’” may justify a downward dispositional departure from a presumptive commitment
to prison. Soto, 855 N.W.2d at 308 (emphasis omitted) (quoting State v. Trog, 323 N.W.2d
28, 31 ( Minn. 1982)). Minnesota courts are guided by several factors, known as Trog
factors, to determine whether a defendant is particularly amenable to individualized
treatment in a probationary setting. Trog, 323 N.W.2d at 31. These factors include “the
defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court,
and the support of [the defendant’s] friends and/or family.” Id. Even so, “the presence of
mitigating factors does not obligate the court to place a defendant on probation or impose
a shorter term than the presumptive term.” Wells v. State , 839 N.W.2d 775, 781 (Minn.
App. 2013) (quotation omitted), review denied (Minn. Feb. 18, 2014).
The district court reviewed all of the evidence in the record to evaluate appellant’s
amenability to treatment in the community. The district court did not make specific
determinations related to appellant’s age , or his cooperation and attitude in court. As for
appellant’s prior record, our caselaw “specifically endorse[s] referring to a defendant’s
criminal history” to determine whether a defendant is particularly suited to treatment in a

1 Appellant does not challenge the district court’s denial of his durational-departure motion.

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probationary setting. Soto, 855 N.W.2d at 311 (citing Trog, 323 N.W.2d a t 31). The
district court considered appellant’s prior criminal record and concluded that this factor did
not support departure. The district court also noted that appellant failed to express remorse
for the pain suffered by his victim. Finally, the dis trict court determined that appellant
continued to remain a threat to the community and noted that his recovery “will not be
helped by a family that wants to deny that [he] did anything wrong.” After weighing the
Trog factors, the district court determined that appellant was not entitled to a downward
dispositional departure because he was not amenable to individualized treatment in a
probationary setting.
We have reviewed all of the evidence in the record , including the confidential
documents, and we have determined that the evidence supports the district court ’s
reasoning. And even assuming appellant did present evidence that he was particularly
amenable to probation, the district court still would not have been required to grant a
downward dispositional departure. See State v. Bertsch , 707 N.W.2d 660, 668 ( Minn.
2006) (recognizing that appellate courts “will not ordinarily interfere with a [presumptive]
sentence . . . even if there are grounds that would justify departure” (quotation omitted)).
The Minnesota Supreme Court recognizes that only the “rare case” merits reversal
based on the district court’s refusal to depart from the sentencing guidelines. State v.
Kindem, 313 N.W.2d 6, 7 (Minn. 1981). This is not the “rare case” compelling reversal.
And we will affirm the imposition of a presumptive sentence when, as here, “ the record
shows that the sentencing court carefully evaluated all the testimony and information
presented before making a determination.” State v. Johnson, 831 N.W.2d 917, 925 (Minn.

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App. 2013) (quotation omitted), review denied (Minn. Sept. 17, 2013). The district court
considered the circumstances for and against departure and concluded that appellant was
not entitled to a downward dispositional departure from the sentencing gu idelines. We
discern no abuse of discretion, and we affirm.2
II. The district court erred by imposing a lifetime term of conditional release.
Appellant argues that the district court erred by imposing a lifeti me term of
conditional release, and we agree. The state charged appellant with first -degree criminal
sexual conduct under Minn. Stat. § 609.342, subd. 1(b) (2016), and second-degree criminal
sexual conduct under Minn. Stat. § 609.343, subd. 1(b) (2016). Appellant pleaded guilty
to both counts. Minnesota law mandates a ten-year conditional-release term for offenders
convicted of criminal sexual conduct in violation of Minn. Stat. §§ 609.342 or 609.343.
Minn. Stat. § 609.3455, subd. 6 (2016). However, an offender convicted under these
sections may be se ntenced to a lifetime conditional -release term if the offender “has a
previous or prior sex offense conviction.” Id., subd. 7(b) (2016).
It is uncontested that appellant does not have a previous or prior sex-offense
conviction as established under Minn. S tat. § 609.3455 and, as such, he is entitled to
resentencing. The parties agree , as do we, that the case should be remanded with
instructions to reduce the conditional release term to ten years. We remand the case to the
district court for resentencing consistent with this opinion. See State v. Brown, 937 N.W.2d

2 Appellant submitted a pro se supplemental brief in support of his departure request.
Appellant failed to support his arguments with relevant facts or legal authority, and we
consider them waived. See State v. Manley, 664 N.W.2d 275, 286 (Minn. 2003) (deeming
as waived pro se arguments that do not cite to relevant legal authority).

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146, 157 (Minn. App. 2019) (determining that dist rict court improperly imposed lifetime
conditional-release term and remanding to district court to vacate term for resentencing).
Affirmed in part, reversed in part, and remanded.