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This opinion is nonprecedential except as provided by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
A20-0634

State of Minnesota,
Respondent,

vs.

Angel Gabriel Aviles,
Appellant.

Filed May 3, 2021
Affirmed
Bratvold, Judge

Anoka County District Court
File No. 02-CR-19-3135

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
appellant)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
Appellant challenges the sentence imposed for his second-degree
criminal-sexual-conduct conviction, arguing that the district court abused its discretion by
failing to consider factors supporting a downward dispositional departure. We affirm.
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FACTS
In May 2019, respondent State of Minnesota charged appellant Angel Gabriel
Aviles with three counts of criminal sexual conduct for acts committed against victim 1,
his 17-year-old daughter, and victim 2, his 13-year-old stepdaughter.
According to the complaint, victim 1 lived with her mother until her mother became
ill. She then moved to Fridley to live with Aviles. Victim 1 was around 12 years old, and
Aviles sexually abused her for four years. Victim 1 reported that Aviles punished her by
taking her phone, and if she wanted it returned, she had to “manually stimulate his penis
until he ejaculated in her hand.” Victim 1 stated that this “happened too many times to
count.” Victim 1 also reported that Aviles once penetrated her anally. Aviles stopped
abusing victim 1 when her mother died. When victim 1 told victim 2 that Aviles had abused
her, victim 2 disclosed that Aviles had once put her hand on his penis.
In August 2019, Aviles pleaded guilty to one count of second-degree criminal sexual
conduct committed against victim 1. He agreed that victim 1 was correct that his sexual
conduct had happened “too many [times] to count.” Although Aviles acknowledged the
sexual conduct that he committed against victim 2, the state dismissed that count as well
as a third count in exchange for Aviles’s guilty plea to the count against victim 1. The state
also agreed to furlough Aviles to chem ical-dependency treatment before sentencing.
Aviles’s attorney stated he intended to seek a downward dispositional departure. The
district court accepted Aviles’s guilty plea and set sentencing for about four months later.
The district court told Aviles that there were “no promises” about a departure, and the court
would give him “an opportunity to show if [he] can earn a departure.”
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Aviles cooperated with a psychosexual evaluation and a presentence investigation
(PSI). During the PSI interview, Aviles disclosed that he has little interaction with his
family, who does not know about his criminal offenses, but he has two close friends who
are aware of his offenses and support him. Aviles added that, while he has had no contact
with his wife since the arrest, they plan to stay together. The PSI interviewer, however,
contacted Aviles’s wife, victim 2’s mother, who denied that she intended to remain married
to him. The PSI report stated that Aviles has zero criminal-history points, but also noted
that several offenses in his criminal history have decayed. The PSI report concluded that
Aviles had no understanding of his crimes or how he has affected his victim. And while
Aviles appeared to assume responsibility, he attempted to mitigate his actions by stating
that alcohol contributed to his conduct. Aviles’s excuse, however, failed to account for his
own admission that alcohol was not always involved during each instance of abuse.
The PSI report recognized that Aviles sought a departure and stated that his
chemical-dependency-treatment participation is a mitigating factor, but concluded that
treatment did not warrant a departure in this case. The PSI report concluded that substantial
factors support a prison sentence; for example, Aviles would benefit from intensive
correctional programming, community safety would be served by Aviles completing
institutional programming, and a departure would depreciate the seriousness of the offense.
The PSI report recommended a 90- month prison sentence. The presumptive range, given
Aviles’s offense and criminal-history score, was between 90 and 108 months.
On January 27, 2020, at the sentencing hearing, victim 1’s grandparents read two
statements: one prepared by victim 1 and one they prepared themselves. Before reading
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victim 1’s statement, the grandmother explained that victim 1 was not at sentencing
because “she lives in constant fear” of Aviles. The grandfather read a separate statement,
commenting that Aviles “groomed” victim 1 and “abused his parental power.” He asked
for the “longest no-contact order possible.”
As read by her grandmother, victim 1 wrote that she had always wanted Aviles in
her life, even though he left the home when she was two years old. For four years, Aviles
forced victim 1 to “touch his penis and manipulate him to orgasm, have oral sex with him,
and undergo the horrors of frequent sexual intercourse anally.” She always fought and
begged him to stop. She could not sleep because she feared he would come into her room
at night. She still has nightmares, worries about victim 2, and hopes to never see Aviles
again. Victim 1 fears that she will “never amount to anything” because Aviles made her
“feel like a nothing.” She has been diagnosed with “post-traumatic stress disorder, major
depressive disorder with recurrent episodes of anxiousness.”
The state argued for a 108- month prison sentence because the offense was “more
egregious than” the typical second -degree criminal-sexual-conduct offense given the
frequency of abuse against victim 1 and her mother’s illness. Aviles’s attorney argued for
a downward dispositional departure because of Aviles’s progress in chemical-dependency
treatment, which showed that he was amenable to probation. His attorney also argued that
Aviles was “very forthcoming” and “wants to get help.” Alternatively, Aviles’s attorney
asked for a 90-month prison sentence.
Aviles apologized, claiming that he “let foolish desire, foolish pleasures overcome”
him. He claimed that he is “better than this” and wants to “enjoy life.” He asked the district
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court to “have mercy” on him. The district court responded: “Fair enough,” and sentenced
Aviles to 108 months in prison with a ten- year conditional-release term. This appeal
followed.
DECISION
Aviles argues that the district court abused its discretion by failing to consider
factors that support a downward dispositional departure. The state responds that the district
court imposed a presumptive sentence and did not abuse its discretion in doing so.
A sentence that is prescribed under the Minnesota Sentencing Guidelines is
“presumed” appropriate. State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). A district court
may depart from a presumptive sentence only if “identifiable, substantial, and compelling
circumstances” warrant a departure. State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016)
(quotation omitted). Appellate courts “afford the [district] court great discretion in the
imposition of sentences and reverse . . . only for an abuse of that discretion.” Soto,
855 N.W.2d at 307-08 (quotation omitted). “[I]t would be a rare case which would warrant
reversal of the refusal to depart.” State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
In considering a motion for a downward dispositional departure, a district court
focuses on whether the defendant is particularly amenable to probation. State v. Trog ,
323 N.W.2d 28, 31 (Minn. 1982). Trog identified several factors that show amenability to
probation, commonly called the “Trog factors.” See id. at 31 (stating that, in determining
whether to grant a dispositional departure, a district court may consider age, prior record,
remorse, cooperation, attitude in court, and support of family and friends).
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A district court is not required to depart from a presumptive sentence even if the
record shows that the defendant would be amenable to probation. State v. Olson,
765 N.W.2d 662, 664-65 (Minn. App. 2009). But if a defendant requests a departure, the
district court must “exercise [its] discretion by deliberately considering circumstances for
and against departure.” State v. Pegel, 795 N.W.2d 251, 253 (Minn. App. 2011) (quotation
omitted).
When the record shows that the district court did not consider the circumstances for
and against a departure, this court will remand the case for consideration of the departure
motion. State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984). This court, however,
will not reverse the district court’s denial of a departure request when the record shows that
the district court “ carefully evaluated all the testimony and information presented before
making a determination.” Pegel, 795 N.W.2d at 255 (quotation omitted). And while a
district court must state reasons that support a departure when granting a departure, it is
not required to explain reasons for denying a departure request following consideration of
the circumstances for and against a departure. State v. Van Ruler, 378 N.W.2d 77, 80
(Minn. App. 1985).
Aviles argues that the district court failed to consider the Trog factors. Aviles also
asserts that the PSI report shows that he is particularly amenable to probation, and claims
that the district court did not even consider the circumstances that supported a departure.
He argues that, at 47 years old, he is less likely to reoffend because of his advanced age
and because his victims were “victims of convenience.” Aviles also points out that his
criminal-history score is zero, his past offenses are decayed , he expressed remorse and
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apologized, he cooperated with the psychosexual evaluation and the PSI, he was respectful,
he voluntarily entered chemical-dependency treatment, and he has two supportive friends.
Aviles accurately points out that, during the sentencing hearing, the district court
did not state its reasons for denying Aviles’s request for a departure. But a district court is
not required to do so. Van Ruler, 378 N.W.2d at 80. For four reasons, we conclude that the
record shows the district court “carefully evaluated all the testimony and information
presented before making a determination.” See Pegel, 795 N.W.2d at 255.
First, when the district court accepted Aviles’s guilty plea, it told Aviles that he had
an opportunity “to show if [he] can earn a departure.” Second, the PSI report noted that
Aviles planned to seek a departure and provided information on the Trog factors. Third, at
Aviles’s sentencing, the district court asked the parties if they had reviewed the
psychosexual evaluation and the PSI report and whether they had changes, corrections, or
additions, suggesting that the district court had reviewed the information and sought to
ensure that the information was accurate and complete. Fourth, before imposing Aviles’s
sentence, the district court heard victim 1’s statement, a statement from victim 1’s
grandparents, arguments for and against a departure, and Aviles’s allocution. Thus, the
record shows that the district court considered information for and against a departure
before imposing the presumptive sentence.
At sentencing, and again on appeal, Aviles argues for departure by relying largely
on his progress in chemical-dependency treatment and his acceptance of responsibility for
his conduct. We are not persuaded that the district court failed to consider these reasons for
departure. The PSI report provided information about Aviles’s participation in treatment
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and stated it was a mitigating factor. But the PSI report also pointed out that treatment did
not support a departure in this case. The PSI report stated that Aviles tried to mitigate his
offending behaviors by claiming alcohol was a contributing factor, but the PSI report also
disclosed that Aviles admitted alcohol was not involved during each instance of abuse.
And, as for Aviles’s acceptance of responsibility, the PSI report stated that Aviles’s
remorse was superficial. Aviles’s own statements at sentencing underscored the
conclusions of the PSI report. Aviles told the district court that he “let foolish desire, foolish
pleasures overcome” him.
On appeal, Aviles claims that other Trog factors also support a departure, even
though his attorney did not raise these points during the sentencing hearing. The record
reflects that the district court also considered this information. First, Aviles claims that he
is unlikely to reoffend because the victims were “victims of convenience.” This is
mentioned in the PSI report as one factor, along with Aviles’s age, that lowers the
probability he would reoffend. But the PSI report also flagged Aviles’s inability to
empathize with his victims. Second, Aviles’s criminal-history score is zero, but he has
committed assaults, including one against his wife. Third, although Aviles claims to have
the support of two friends, the PSI report showed he does not have support from his family
or his wife.
Additionally, victim 1’s written statement explained how the years of sexual
assaults affected her, and described Aviles as manipulative. She also described, in
statements summarized in the PSI report, that Aviles was sexually inappropriate with her
friends. And Aviles admitted to criminal sexual conduct with victim 2. Finally, Aviles’s
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statement at sentencing asked the district court for “mercy.” The district court responded,
“Fair enough.”
The district court appropriately considered all of this information in deciding
whether to grant a dispositional departure. See State v. Walker, 913 N. W.2d 463, 468
(Minn. App. 2018) (stating a district court may consider offense-related factors in deciding
whether a dispositional departure is appropriate). We conclude that the record shows the
district court considered information for and against departure before imposing the
presumptive sentence, and properly exercised its discretion in doing so.
Affirmed.