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This opinion is nonprecedential except as provided by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
A21-0092

State of Minnesota,
Respondent,

vs.

Mark Airen Mitchell,
Appellant.

Filed October 25, 2021
Affirmed
Worke, Judge

Olmsted County District Court
File No. 55-CR-20-1155

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

Mark A. Ostrem, Olmsted Coun ty Attorney, James E. Haase, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

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

Considered and decided by Slieter, Pres iding Judge; Worke, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges his first-degree criminal-sexual-conduct convictions, arguing
that the district court abused its discre tion by imposing a double -upward sentencing
departure. We affirm.
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FACTS
In February 2020, a child bo rn in 2012 (the victim) re ported to her mother that
appellant Mark Airen Mitchell, who lived with the victim’s family, had sexually assaulted
her. During a forensic interview, the victim disclosed that Mitchell sexually penetrated
“her vagina with his fingers” and put “his ‘personal’ inside her butt.” The victim reported
that the assaults occurred frequently; the last one occurring in the winter of 2019. She also
reported that Mitchell sexually assaulted her on February 15, 2020.
Mitchell was charged with two counts of first-degree criminal sexual conduct—
penetration or contact with a pe rson under 13 years of age. See Minn. Stat. § 609.342,
subd. 1a (2016). The state moved for an upward sentencing departure based on the
aggravating factor that Mitchell penetrated the victim in multiple ways.
In August 2020, Mitchell pleaded guilty to both counts of first-degree criminal
sexual conduct. Mitchell waived his right to a jury determination on the issue of the
aggravating factor for sentencing and admitted that there was a basis for the district court
to impose an enhanced sentence.
The presumptive sentence fo r count one was 144 months in prison, with a range
between 144 and 172 months. The presumptive sentence for count two was 180 months in
prison, with a range between 153 and 216 months. The district court sentenced Mitchell
on count one to 288 months in prison, a double-upward departure based on the aggravating
factor of multiple forms of penetration. The district court sentenced Mitchell to a
concurrent 216 months in prison on count two. The district court stated:
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In this case, the first count spans a significant timeframe
and Mr. Mitchell admitted to multiple forms of penetration
during this time. The [c]ourt’s reason for finding that there is
a substantial and compelling reas on to depart in his case is
because by penetrating [the vi ctim], using multiple forms of
penetration, his conduct caused more damage to her than a
typical single form of penetration that one would see in a first-
degree criminal sexual conduct case.

This appeal followed.
DECISION
Mitchell argues that the district court abused its discretion by imposing a 288-month
sentence, a double-upward departure, becaus e this sentence unfairly exaggerates the
criminality of his conduct. As the reviewi ng court, we are responsible for determining
whether a sentence “is inconsistent with statutory requirements, unreasonable,
inappropriate, excessive, unjustifiably disparate, or not warranted by th e findings of fact
issued by the district court.” Minn. Stat. § 244.11, subd. 2(b) (2020).
In considering a district court’s sentenci ng departure, we first review de novo
whether the district court’s reason for departing is permissible. State v. Rabold , 935
N.W.2d 902, 906 (Minn. App. 2019). Mitchell waived a jury determination on the
existence of the aggravating factor and admitted that multiple forms of penetration support
an enhanced sentence. Thus, Mitchell concedes that the district court’s reason for departing
is permissible. See State v. Stanke, 764 N.W.2d 824, 828 (Minn. 2009) (stating that facts
underlying a departure must be found by a jury or admitted by defendant).
Because Mitchell does not challenge the basi s for the departure, we proceed to the
next step of the analysis—whether the decision to depart was an abuse of the district court’s
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discretion. See Rabold, 935 N.W.2d at 906. Mitchell argues that the district court abused
its discretion because the sentence “is disp roportionate to the offense or unfairly
exaggerates the criminality” of his conduct. See State v. McLaughlin , 725 N.W.2d 703,
715 (Minn. 2007) (quotation omitted).
Here, the district court imposed a 288- month prison sentence , a double-upward
departure, based on the aggr avating factor that Mitchell, in assaulting the victim,
committed multiple forms of penetration. Mitc hell admitted that he “put [his] penis into
the victim’s anal cavity” and “digitally penetrated [her] vagina with [his] fingers.”
Mitchell argues that his sentence is disproportionate to other sentences imposed for
this offense. Mitchell cites State v. Suhon , in which the defendant was sentenced to an
aggregate 278 months in prison after bein g convicted of committi ng repeated sexual
assaults against his daughter over a span a several years. 742 N.W.2d 16, 19-20 (Minn.
App. 2007), rev. denied (Minn. Feb. 19, 2008). But Suhon is different because the district
court did not impose an upward durational departure; rathe r, the district court imposed
permissive consecutive sentences for three separate convictions. Id. at 20.
In State v. Adell , the defendant was convicted of first-degree criminal sexual
conduct and received an enhanced sentence ba sed on the aggravating factor of multiple
forms of penetration. 755 N.W. 2d 767, 770 (Minn. App. 2008), rev. denied (Minn.
Nov. 25, 2008). Similarly, the defendant received a double-upward departure resulting in
a 288-month sentence. Id. This court determined that “[t]he aggravating factor of multiple
forms of penetration alone justifie[d] a double-durational departure.” Id. at 776.
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Because multiple forms of penetration is a permissible basis for an upward departure
and because a double-upward departure is justif ied when the sole aggravating factor is
multiple forms of penetration, the district court did not abuse its discretion in sentencing.
Affirmed.