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This opinion is nonprecedential except as provided by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
A19-2068

State of Minnesota,
Respondent,

vs.

Thomas Joseph Incantalupo,
Appellant.

Filed January 4, 2021
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-18-988

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

Michael O. Freeman, Hennepin County Attorn ey, Sarah J. Vokes, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Kevin C. Riach, Fredrikson & Byron, P.A., Minneapolis, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Coch ran, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this sentencing appeal, appellant Thom as Joseph Incantalupo contends that the
district court abused its discretion by impos ing upward durational departures based on
impermissible departure factors for his convicti ons of criminal sexual conduct. He also

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argues that the upward durational departures are disproportionate to other sentences
imposed for criminal-sexual-conduct crimes and unfairly exaggerate the criminality of the
offenses. Because the district court sent enced Incantalupo base d upon the admitted
aggravating factor and the sentences were neither disproportionate nor an exaggeration of
the criminality of the offenses, we affirm.
FACTS
In January 2018, respondent State of Minnesota charged Incantalupo, who was the
victim’s figure skating coach, with one count of criminal sexual conduct in the first degree
and four counts of criminal sexual conduct in the third degree.1 The state filed a notice of
intent to seek an aggravated upward sentencing departure pursuant to Minn. Stat. § 244.10
(2018) and the Minnesota Sentencing Guidelines on the ground that Incantalupo subjected
the victim to multiple forms of penetration.
Incantalupo pleaded guilty to one count of criminal sexual conduct in the first degree
and one count of criminal sexual conduct in the third degree, admitted the aggravating
factor, and waived his right to a Blakely hearing on that factor.2 The plea petition provided
that the parties would defer to the district c ourt for sentencing. In response to questions
from both attorneys and the district court, In cantalupo provided a factual basis for each
count. For the first count, In cantalupo admitted that on June 16, 2017, he had sexual
intercourse and oral sex with a 15-year-old girl at a hotel in Hennepin County, and

1 The state filed an amended complaint in November 2018, which added two additional
counts of criminal sexual conduct in the first degree and two additional counts of criminal
sexual conduct in the third degree.
2 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

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penetrated the girl with his fingers. He ack nowledged that he knew the girl was 15 years
old at the time of the conduct . For the second count, he admitted that on December 12,
2017, he was at the same hotel with the same girl, who was then 16 years old, and engaged
in the same sexual acts as in June 2017. The district court reserved accepting the plea
pending completion of a presentence investigation.
At the sentencing hearing, the court heard victim-impact statements from the victim
and her parents, and the parties presented se ntencing arguments. For the count of first-
degree criminal sexual conduct, the state as ked for a “double upward departure” of 288
months, and asked for the mandatory minimum sentence of 36 months for the count of
third-degree criminal sexual conduct—to be served consecutively to the first sentence—
for a total prison sentence of 324 months, which is 27 years. Incantalupo’s counsel argued
for “12 years” and that “less would be appropriate.”
For the first-degree count, the district c ourt ordered Incantalupo’s commitment to
prison for 234 months and noted this was an “aggravated durational departure based on
multiple forms of penetration being perp etrated during the offense” and was
“approximately a 60 percent increase of 90 mont hs over the presumptive sentence.” For
the third-degree count, the district court orde red commitment to prison of 54 months and
stated this was “an aggravated durational departure based on multiple forms of penetration
being perpetrated during th e offense” and “an 18-mont h aggravated duration or
approximately 50 percent over the guideline because the guidelines are 36 months.” The
district court ordered that the 54 months be served consecutively to the 234-month sentence
for a total prison sentence of 288 months, or 24 years in prison. Incantalupo appeals.

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DECISION
I. The district court did not rely on impermissible sentencing factors in imposing
upward sentencing departures.

“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) (emphasi s omitted) (quotations omitted) (citations
omitted). “[W]hether a particular reason fo r an upward departure is permissible is a
question of law, which is subject to a de novo standard of re view,” and a district court’s
decision to depart based on permissible factors is reviewed for an abuse of discretion. State
v. Grampre , 766 N.W.2d 347, 350 (Minn. App. 2009), review denied (Minn. Aug. 26,
2009). As noted above, Incantalupo waived his right to a trial and admitted the aggravating
factor of multiple forms of penetration.
Incantalupo argues that the district court improperly relied on impermissible
aggravating factors. At sentencing, the district court clarified it “cannot depart on the fact
that there was a significant relati onship . . . [n]or can [it] base on the fact that there is a
breach of trust because that’s inherent in a significant relationship.” The district court did
identify and discuss various sentencing factors in cluding breach of trust, age, and lack of
remorse, but indicated that it was “going to base the sentence on the facts of the two cases
that [he] pleaded guilty to” and that “there are aggravated factors.” The district court also
stated:

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 “[Breach of trust] is an aggrav ating factor, but [the district
court is] basing [its] departure on the one [aggravating factor]
admitted, and that is multiple forms of penetration.”

 There were “aggravated factors” such as “multiple forms of
penetration being perpetrated during both offenses that
[Incaptalupo] pleaded guilty to” and a “breach of trust” in the
“significant relationship” Incantalupo had with the victim and
victim’s family.

 [Multiple forms of penetration] is an aggravating factor
regardless of the victim’s age, bu t the age of the victim at the
time of the crime does make it mo re serious . . . if you have
multiple penetration on a younger child.”

 “[T]his is not the type [of cas e] that would require a double
departure, but it does require a significant departure, especially
for the count when [the victim] was 15.”

The district court then found Incantalupo guilty of both counts and proceeded to sentence
Incantalupo after entering the convictions.
The district court did not impose a departure on impermissible aggravating factors.
The district court clearly identified “multiple forms of penetration” as the sole basis for
departure for each count. A discussion of ot her aspects of a case during sentencing does
not imply that the judge relied on thos e aspects in issuing its sentence. State v. Adell ,
755 N.W.2d 767, 772 (Minn. App. 2008), review denied (Minn. Nov. 25, 2008)
(concluding that district court’s “associated comments” of the case at sentencing did not
justify reversal). Because Minnesota caselaw di ctates that “[i]f the reasons given for an
upward departure are legally permissible a nd factually supported in the record, the
departure will be affirmed,” State v. Edwards , 774 N.W.2d 596, 601 (Minn. 2009), and
because multiple forms of penetration is a legally permissible reason for an upward

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departure, see Adell, 755 N.W.2d at 775-76 (stating that “multiple penetrations alone will
generally justify a double . . . upward durational departure”), the judge’s references to other
aspects of the case do not constitute a reversible error.
II. The district court’s sentence was not di sproportionate and did not unfairly
exaggerate the criminality of the offenses.

The Minnesota Sentencing Gu idelines provide that in cases of criminal sexual
conduct in the first degree, a defendant with a criminal-history score of zero who engages
in a single act of sexual penetration is presumed to receive a sentence of 144 to 172 months
in prison. Minn. Sent. Guidelines 4.B (2018 ). A defendant with a criminal history score
of zero guilty of criminal se xual conduct in the third degree who engages in penetration
with a minor child is presumed to receive a mandatory minimum sentence of 36 months in
prison. Id.
“An appellate court will not interfere wi th a [district] court’s discretion in
sentencing unless the sentence is di sproportionate to the offense.” State v. Hough ,
585 N.W.2d 393, 397 (Minn. 1 998). “A [district] court’s decision regarding permissive,
consecutive sentences will not be disturbe d unless the resulting sentence unfairly
exaggerates the criminality of the defendant’s conduct.” Id. Appellate courts “review a
district court’s determination of whether se ntences exaggerate the criminality of the
defendant’s behavior for abuse of discretion.” State v. Alger, 941 N.W.2d 396, 403 (Minn.
2020). “In determining whether a sentence has exaggerated the criminality of a defendant's
conduct, [appellate courts] take guidance from past sentences imposed on similarly situated
defendants.” See State v. Yang , 774 N.W.2d 539, 563 (Minn. 2009). A sentence is

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reviewed with the understanding that “[a district court] judge sits with a unique perspective
on all stages of a case, including sentencing, a nd the [district court] judge is in the best
position to evaluate the offender’s c onduct and weigh se ntencing options,” Hough,
585 N.W.2d at 397, and that the district court has “broad discretion” in sentencing
decisions, State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Incantalupo admitted to engaging in multip le forms of penetr ation for each count
that he pleaded guilty to and that this admission meets the aggravating factor. Incantalupo
argues, however, that “the combination of upward durational depa rture and consecutive
sentencing have resulted in an excessive sentence that exagge rated the criminality of the
conduct for which [he] pleaded guilty” and resulted in a disp roportionate sentence. He
asserts that “[c]omparing [his] aggravated 288-month sentence to other similar aggravated
[criminal-sexual-conduct] sentences confirms that [his] sentence was disproportionate”
and that “when a sentence falls so far outside the heartland of sentences for similar crimes,
and instead falls within the heartland of sentences for more significant crimes, that sentence
can fairly be said to exaggerate the defendant’s criminality.” “When reviewing whether a
consecutive sentence unfairly exaggerates a defendant’s criminality, [appellate courts] are
guided by past sentences re ceived by other offenders for similar offenses.” See Alger,
941 N.W.2d at 403 (quotation omitted). We therefore look to sentences imposed in other
cases where a defendant faced similar charge s to determine whether this sentence was
comparably excessive.
Incantalupo points to several cases in which a defendant was sentenced to less prison
time than him despite being convicted of mo re counts, and several cases in which a

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defendant received the same 288-month sentence as him for “more charges, more incidents
of abuse, and/or more aggravating factors.” One such cases is State v. Bauer, in which the
defendant was sentenced to 288 months for three counts of criminal sexual conduct in the
first degree. No. A07-1836, 2009 WL 112842 , at *2 (Minn. App. Jan. 20, 2009), review
granted (Minn. Mar. 31, 2009) (mem.), remanded to 2009 WL 2596077 (Minn. App. Aug.
25, 2009). In another case, State v. Yaritz, the defendant was sentenced to 288 months for
one count of first-degree criminal sexual conduct with six aggravating factors. 791 N.W.2d
138, 142 (Minn. App. 2010), review denied (Minn. Feb. 23, 2011). He also references,
among others, State v. Vance , 765 N.W.2d 390, 391 (Minn. 2009) (288 months for two
counts of criminal sexual conduct and two aggravating factors) and—in a case cited by the
state as support for Incantalupo’s sentence—Adell, 755 N.W.2d at 779 (288 months based
on one count of criminal sexual conduct in the first degree with same aggravating factor,
with 30 separate incidents of penetration).
The state notes that the defendant in Adell received an even greater sentencing
departure than Incantalupo despite being co nvicted of only one co unt of first-degree
criminal sexual conduct and ultimately received 288 months—an upward departure of 144
months. Id. It also notes that Incan talupo received 234 months for the same count, or a
departure of 90 months. The state also cites State v. Benitez , No. A14-2188, 2015 WL
9437512 (Minn. App. Dec. 28, 2015) (344 months based on one co unt of first-degree
criminal sexual conduct with two aggravating factors), review denied (Minn. Mar. 29,
2016), and State v. Lewis, No. A12-1532, 2013 WL 3368431, at *1 (Minn. App. July 8,
2013) (240 months based on one count of firs t-degree criminal sexual conduct with one

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aggravating factor, multiple forms of penetration), review denied (Minn. Sept. 17, 2013),
as additional support that Incantalupo’s sentence was proportionate.
The caselaw cited by both parties makes it clear that district courts have imposed a
wide range of sentences for cases involving criminal-sexual-conduct charges and each case
involved different aggravating factors, numbers of counts, and facts. This caselaw fails to
demonstrate that Incantalupo’s sentence was comparatively exaggerated or excessive. As
previously mentioned, Minnesota caselaw dictates that “[m]ultiple penetrations alone will
generally justify a double . . . upward durational departure,” Adell, 755 N.W.2d at 775, and
Intantalupo received less than a double upward durational departure for each offense. The
facts of this case are serious —Incantalupo admitted to sexually abusing the minor victim
at a hotel room on two occasions—and the dist rict court stated that it was basing its
sentencing decision on the facts supporting the two charges and the sole admitted
aggravating factor. Having considered the br oad discretion provided to district courts in
sentencing and the facts of this case, we conclude the dist rict court did not abuse its
discretion in its sentence.
Affirmed.