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This opinion is nonprecedential except as provided by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
A21-0550

State of Minnesota,
Respondent,

vs.

Terrance Lee Tonnessen,
Appellant.

Filed March 28, 2022
Affirmed
Slieter, Judge

Becker County District Court
File No. 03-CR-19-1586

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

Brian W. McDonald, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, An drew J. Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Pres iding Judge; Worke, Judge; and Halbrooks,
Judge.


 Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant argues that the district court’s decision to conduct his sentencing hearing
remotely was unconstitutional and the district court’s denial of his motion for a downward
dispositional departure was an a buse of its discretion. Beca use a presumed violation of
Tonnessen’s constitutional rights is harmless beyond a reasonable doubt and the district
court acted within its discretion to deny Tonnessen’s departure motion, we affirm.
FACTS
Appellant Terrance Lee Tonnessen pleaded guilty to second-degree criminal sexual
conduct, in violation of Minn. Stat. § 609. 343, subd. 1(e)(i) (2018). Tonnessen admitted
to coercing the 15-year-old victim to have sexual contact with him when he was 40 years
old.
The district court ordered the preparation of a psychosexual evaluation. See Minn.
Stat. § 609.3457, subd. 1 (2020) (requiring the district court “order an independent
professional assessment” before sentencing someone convicted of a sex offense).
Tonnessen filed a motion for a downward dispositional departure based upon his claim that
he is particularly amenable to probation.
The district court scheduled a sentencing hearing to be conducted remotely.
Tonnessen’s trial counsel sent a letter to the district court requesting an in-person
sentencing hearing. The letter asked that th e hearing be continued and rescheduled as an
in-person hearing because “it is best to handle matters involving potential prison
3
commitment in-person.” The district court, without ruling on Tonnessen’s request, held
the sentencing hearing remotely.
During the sentencing hearing, the distri ct court denied Tonnessen’s motion for a
downward dispositional departure and sentenced Tonnessen to a presumptive 90 months’
imprisonment. Tonnessen appeals.
DECISION
Tonnessen argues two issues on appeal. First, by holding his sentencing hearing
remotely, the district court violated his constitutional right to be present at all critical stages
of his criminal proceedings. Second, the district court abused its discretion when it denied
his motion for a downward dispositional departure.
I. A presumed constitutional error is harmless.

We first note that Tonnessen has forfeited this argument because he did not present
it to the district court. Roby v. State , 547 N.W.2d 354, 357 (Minn. 1996) (holding that
appellate courts “generally will not decide issues which were not raised before the district
court, including constitutional questions of criminal procedure.”). Tonnessen never
formally moved the district c ourt, based upon a constitutional violation, to hold an in-
person sentencing hearing. Instead, his trial counsel sent a letter to the district court
“requesting that the sentencing hearing . . . be continued” until the hearing could be held
in person. Moreover, once the remote sentencing hearing began, Tonnessen’s trial counsel
did not orally object to the remote nature of the hearing.
We decline to reach issues on appeal that were not raised before the district court.
See State v. Vasko, 889 N.W.2d 551, 559 n.6 (Minn. 2017) (citing In re Welfare of C.L.L.,
4
310 N.W.2d 555, 557 (Minn. 1981)). Because Tonnessen failed to raise his constitutional
argument to the district court, he forfeits this argument on appeal.
Though we need not analyze Tonnessen’s constitutional argument, upon review of
its merits, it fails. We will presume, withou t so deciding, that by holding his sentencing
hearing remotely, it violated Tonnessen’s constitutional right to be present in-person during
his sentencing hearing. However, it was harmless beyond a reasonable doubt. When a
defendant is wrongly denied the right to be present at a critical stage of trial, reversal is
necessary “unless the error was ha rmless beyond a reasonable doubt.” Peterson v. State,
672 N.W.2d 612, 616 (Minn. App. 2003), rev. denied (Minn. Mar. 16, 2004).
Criminal defendants have a due-process ri ght to be present at their sentencing
hearing. U.S. Const. amend. XIV; State v. Martin , 723 N.W.2d 613, 619 (Minn. 2006);
Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005). See also Gardner v. Florida, 430 U.S.
349, 358, 362 (1977) (concluding that a defendant was “denied due process of law when
[a] death sentence was imposed, at least in pa rt, on the basis of information which he had
no opportunity to deny or explain.”). The concept of due process is meant to be fluid and
dynamic with “such procedural protections as the particular situation demands.” Morrissey
v. Brewer, 408 U.S. 471, 481 (1972).
In Minnesota, this right is codified at Minnesota Rule of Criminal Procedure 1.05,
subdivision 2. However, in response to the COVID-19 pandemic, the supreme court
temporarily suspended strict compliance with rule 1.05. Order Governing the Continuing
Operations of the Minnesota Judicial Branch , No. ADM20-8001, at 3 (Minn. Jan. 21,
2021). The order, which was in effect dur ing Tonnessen’s sentencing hearing, required
5
that all proceedings other than jury trials and grand juries “be conducted remotely unless
the chief judge of the district in which the proceeding is to be held grants an exception for
an in-person proceeding.” Id. at 2-3.1
Tonnessen argues that this constitutional error was not harmless because the district
court could not adequately assess his remorse. It is his claim of remorse, Tonnessen argues,
that was the primary basis for his claim to be amendable to probation. And, absent an in-
person expression of his remorse, Tonnessen claims, the district court was not able to fully
assess his sincerity. The record belies Tonnessen’s claim.
First, the record is clear that the district court considered Tonnessen’s oral statement
of remorse before explaining its reason why, given the presence of other factors also
supported in the record, it found the absence of substantial and compelling circumstances
to depart. During his allocution, Tonnessen stated the following:
TONNESSEN: This is the single most shameful and
humiliating experience time of my life. I violated [the victim]
and abused my friendship with [t he mother of the victim] in
ways that will be difficult for them . . . and I will carry the
shame and pain for having done that for the rest of my life.

I know when I was having sexual contact with [the
victim], I knew it was wrong, but I did it anyways.
. . . .
The best thing to do with th is case [was plead guilty],
and I respect the decision of the Court and I want [the mother
of the victim] and [the victim] to know that I’m truly sorry.

1 Our court recently held that a generalized concern about the COVID-19 pandemic is an
insufficient policy reason to justify the curta iling of a criminal defendant’s Confrontation
Clause right. State v. Tate , 969 N.W.2d 378, 388 (Minn. App. 2022); see also State v.
Modtland, ___ N.W.2d.___, ___, 2 022 WL 433245, at *5-6 (M inn. App. Feb. 14, 2022)
(holding that the district court made suffici ent case-specific findings to justify denying
defendant’s request that a witness remove their face covering while testifying).
6

THE COURT: All right, Thank you. . . .

TONNESSEN: Did you get all that?

THE COURT: I did. Thank you. . . . [T]hank you for your
statement, Mr. Tonnessen.

Though not all these statements involved remorse for the harm he caused the victim,
he did ultimately express his apology and the district court clearly heard it.
However, a showing of remorse is but one factor for district courts to consider when
adjudicating dispositional departure motions. See State v. Trog, 323 N.W.2d 28, 31 (Minn.
1982) (providing a non- exhaustive list of offender-relate d factors district courts may
consider, including the defendant’s age, prio r record, remorse, cooperation, attitude in
court, and support of family and friends). The record supports the district court’s
conclusion that, considering all factors, which included Tonnessen’s remorse, there did not
exist substantial and compelling circumstances to depart from the sentencing guidelines.
When explaining its reasons not to depart, the district court to ld Tonnessen that
“when you committed this offens e you were 40 and she was 15 ,” and “[i]t was not a one
time occurrence and so it didn’t just happen. . . . [Y]ou had time to reflect upon your
actions after the first time that it happened.” The district court also stated that because the
victim was “the daughter of a friend . . . ther e was an established and trusted relationship
that existed” between Tonnessen and the victim.
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The district court’s conclusions are supported by the record. Neither party contests
the age difference between Tonnessen and the victim. 2 The victim also provided a
statement to the PSI author that Tonness en arranged several sexual encounters and
sometimes would help her out of her bedroom window so that he could have sex with her
in his car. Finally, both the victim and her mother—once a close friend of Tonnessen’s—
presented compelling oral impact statements to the district court prior to its sentence. The
victim explained that Tonnesse n “played on [her] mental he alth, [her] low self-esteem,”
and her mother stated that Tonnessen’s actions heightened her worry about her children’s
safety and whom she can trust.
In sum, any additional impact of an in-person showing of remorse would not have
affected the district court’s sentencing decision. State v. Rund, 896 N.W.2d 527, 533
(Minn. 2017). Thus, a presumed error by conducting a remote sentencing hearing is
harmless beyond a reasonable doubt.
II. The district court acted within its di scretion by imposing a presumptive
sentence.

District courts have broad discretion in sentencing. State v. Soto, 855 N.W.2d 303,
307-08 (Minn. 2014). We review a district court’s sentencing decision for an abuse of
discretion. Id. A district court “abuses its discre tion when its decision is based on an

2 Tonnessen argues that, by relying on the age di sparity between the pa rties, the district
court used an element of th e offense to deny his motion for a downward departure. See
State v. Thompson, 720 N.W.2d 820, 830 (Minn. 2006) (stating that sentencing courts may
not use elements of an offense as an aggravating factor during sentencing). We disagree.
The district court noted the vast age diffe rence between Tonnessen and the victim to
highlight Tonnessen’s manipulation of the victim.
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erroneous view of the law or is agains t logic and the facts in the record.” Riley v. State,
792 N.W.2d 831, 833 (Minn. 2011). Th e Minnesota Sentencing Guidelines, which
prescribe sentences that are “presumed to be appropriate,” limit the district court’s
sentencing discretion. Minn. Sent. Guidelines 2.D.1 (2018); see Soto, 855 N.W.2d at 308
(quoting this provision of guidelines).
If a defendant requests a downward dispositi onal departure, a district court must
determine whether “mitigating circumstances are present” and, if so, whether “those
circumstances provide a substantial and co mpelling reason not to impose a guidelines
sentence.” Soto, 855 N.W.2d at 308 (quotations omitted). Among those mitigating factors
is whether appellant is “particularly amenab le to probation.” Minn. Sent. Guidelines
2.D.3.a(7) (2018); see Soto , 855 N.W.2d at 308-09. But ev en if a mitigating factor is
present, the district court is not obligated to grant a dispositional departure. State v. Pegel,
795 N.W.2d 251, 253-54 (Minn. App. 2011) (quotation omitted).
To determine whether a defendant is partic ularly amenable to probation, a district
court may consider “both offender- and o ffense-related factors” for a downward
dispositional departure. State v. Walker, 913 N.W.2d 463, 468 (Minn. App. 2018); Minn.
Sent. Guidelines 2.D.3.a(7); see also Trog, 323 N.W.2d at 31 (providing a non-exhaustive
list of offender-related factors district courts may consider).
Tonnessen’s argument that th e district court abused its discretion is unpersuasive
for two reasons. First, even if the district court determined that Tonnessen is particularly
amenable to probation, the district court would still not be obligated to downwardly depart
from the presumptive sentence. See Pegel, 795 N.W.2d at 253-54.
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Second, the district court’s decision that Tonnessen is not particularly amenable to
probation is supported by the record for all the reasons described in part I above. Thus, the
district court did not abuse its discretion by denying Tonnessen’s motion for a downward
dispositional departure.
Affirmed.