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This opinion is nonprecedential except as provided by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
A21-0601

State of Minnesota,
Respondent,

vs.

Robert Kent Pioro,
Appellant.

Filed April 18, 2022
Affirmed
Johnson, Judge

Carlton County District Court
File No. 09-CR-20-1053
St. Louis County District Court
File No. 69DU-CR-20-2119

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

Lauri A. Ketola, Carlton County Attorney , Jeffrey L.H. Boucher, Assistant County
Attorney, Carlton, Minnesota; and

Kimberly J. Maki, St. Louis County Attorn ey, Jonathan D. Holets, Assistant County
Attorney, Duluth, Minnesota (for respondent)

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

Considered and decided by Johnson, Presiding Judge; Reyes, Judge; and Cochran,
Judge.

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NONPRECEDENTIAL OPINION
JOHNSON, Judge
In 2020, Robert Kent Pioro pleaded guilty to four co unts of third-degree criminal
sexual conduct based on his admission that, fro m 2000 to 2002, he engaged in sexual
conduct toward a student athlete at the high school where he was a teacher and a coach.
Before sentencing, Pioro moved for a downward dispositional departure. The district court
denied the motion and imposed an executed sentence of 33 months of imprisonment, which
is a presumptive sentence under the 2000 sent encing guidelines. We conclude that the
district court did not err by denying Pioro’s motion for a downward dispositional departure.
Therefore, we affirm.
FACTS
From 2000 to 2002, when Pioro was in his early 40s, he was a high school teacher
and basketball coach. During that time period, Pioro engaged in a sexual relationship with
a student who was a member of the basketball team that he coached.
Years later, in November 2019, the former student athlete reported Pioro’s conduct
to the Carlton County Sheriff’s Office. In July 2020, in Carlton County, the state charged
Pioro with three counts of third-degree criminal sexual conduct, in violation of Minn. Stat.
§ 609.344, subd. 1(e) (2000), for conduct occurring in Car lton County between October
2000 and March 2001. On the same day, in St. Louis County, the state charged Pioro with
three counts of third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344,
subd. 1(e), for conduct occurri ng in St. Louis County betw een February 2001 and April
2002.
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In December 2020, Pioro pleaded guilty to counts 1 and 2 in each case. The district
court ordered Pioro to cooperate with a ps ychosexual evaluation and a pre-sentencing
investigation (PSI).
In January 2021, Pioro moved for a downw ard dispositional departure. He argued
that he is particularly amenable to probation. One sentence of his memorandum of law in
support of the motion states, “He struggles w ith chronic health conditions which he fears
would become unmanageable in a custodial setting.” Pioro’s attorneys later submitted to
the district court a one-page letter from Pioro’ s physician, which states that Pioro has a
particular rare lung condition. The physician stated further that Pioro is at “increased risk
of developing severe life-threatening respir atory infections” and that the COVID-19
pandemic and “close proximity to others” in prison “would very likely adversely affect Mr.
Pioro’s overall marginal health.”
At the consolidated sentencing hearing in February 2021, the former student athlete
provided a victim-impact statement. Pioro’s attorney argued in support of the motion for
a downward dispositional departure. The stat e urged the district court to deny Pioro’s
motion and to impose an executed sentence “at the high end of the box.” Pioro spoke in
allocution and expressed remorse.
In the Carlton County case, the district court imposed and executed a sentence of 33
months of imprisonment on count 2. The district court denied Pioro’s motion for a
downward dispositional departure by stating, “I am going to conclude, based on everything
that I’ve reviewed, read, and heard, that th ere are not substantial and compelling reasons
for me to depart, either durationally or di spositionally, downward from the guidelines.”
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With respect to count 1, the district court imposed a concu rrent sentence of 28 months of
imprisonment but expressed its intention to stay execution of that sentence. In the St. Louis
County case, the district court imposed concurrent sentences of 18 months and 23 months
of imprisonment on counts 1 and 2, respec tively, but expressed its intention to stay
execution of those sentences. At Pioro’s request, the district court executed the three stayed
sentences. Pioro appeals from the judgments in both district court cases.
DECISION
Pioro argues that the district court erre d by denying his motion for a downward
dispositional departure from the presumptive se ntencing range with respect to count 2 in
the Carlton County case.
The Minnesota Sentencing Guidelines gene rally provide for presumptive sentences
for felony offenses. Minn. Se nt. Guidelines II.C (2000). Fo r any particular offense, the
presumptive sentence is “presumed to be appropriate” for all typical cases sharing criminal
history and offense-severity characteristics. Minn. Sent. Guidelines II.D (2000); State v.
Soto, 855 N.W.2d 303, 308 (Minn. 2014). A di strict court “shall utilize the presumptive
sentence provided in the sentencing guide lines unless the individual case involves
substantial and compelling circumstances.” Minn. Sent. Guidelines II.D (2000).
“Substantial and compelling circumstances are those demonstrating that the defendant’s
conduct in the offense of conviction was signi ficantly more or less serious than that
typically involved in the commission of the crime in question.” State v. Hicks, 864 N.W.2d
153, 157 (Minn. 2015) (quotations omitted).
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In reviewing a decision on a motion to depart from the applicable sentencing range,
this court applies an abuse-of-discretion standard of review. Soto, 855 N.W.2d at 307-08.
A district court “has broad discretion to de part” from the sentenci ng guidelines “only if
aggravating or mitigating circumstances are present.” State v. Best, 449 N.W.2d 426, 427
(Minn. 1989) (emphasis omitted). But “if aggravating or mitigating circumstances are not
present, the trial court has no discretion to depart.” Id. One way in which a district court
may abuse its discretion is by basing its decision “on an erroneous view of the law.” Soto,
855 N.W.2d at 308 n.1 (quotation omitted). Whether an aggravating or mitigating
circumstance is present is, in essence, a question of law. See Best, 449 N.W.2d at 427.
“[T]o the extent a decision to depart turns on a question of law, reviewing the decision for
an abuse of discretion . . . calls for resolving the legal question de novo.” Soto, 855 N.W.2d
at 308 n.1; accord State v. Jackson , 749 N.W.2d 353, 357 (Minn. 2008); State v. Dentz ,
919 N.W.2d 97, 101 (Minn. App. 2018); Dillon v. State, 781 N.W.2d 588, 595 (Minn. App.
2010), rev. denied (Minn. July 20, 2010); State v. Grampre, 766 N.W.2d 347, 350 (Minn.
App. 2009), rev. denied (Minn. Aug. 26, 2009).
Pioro’s primary argument for reversal is that the district court erred by not
concluding that he is particularly amenable to probation. In determining whether a
defendant is particularly amenable to probation so as to ju stify a downward dispositional
departure, a district court may consider, among other things, “the defendant’s age, his prior
record, his remorse, his cooperation, his attitude while in court, and the support of friends
and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). A district court need not
discuss all of the Trog factors if the district court denies a motion for a downward
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dispositional departure. State v. Pegel , 795 N.W.2d 251, 254 (Minn. App. 2011).
Particular amenability to probation is not es tablished if the defendant is only somewhat
amenable to probation. Soto, 855 N.W.2d at 308-09. Rather, the defendant must be
“particularly” amenable to probation in a way that “distinguishes the defendant from most
others and truly presents the substantial and compelling circumstances that are necessary
to justify a departure.” Id. at 309 (alteration omitted) (quotation omitted).
In this case, the district court indicated that it had reviewed the parties’ submissions
and listened to the parties’ arguments and considered all relevant information before
denying Pioro’s motion. The district court specifically stated that there are not “substantial
and compelling reasons” for a departure from the sentencing guidelines.
Pioro contends that the dist rict court erred on the ground that he is particularly
amenable to probation because he admitted his guilt, accepte d responsibility, expressed
remorse, engaged in chemical-dependency treatment before the offense, is willing to attend
sex-offender treatment, is now in his 60s, has support in his family and in the community,
and has no other criminal history. In response, the state argues that Pioro has not expressed
remorse for the harm he has cau sed to the victim but, rather, for the impact his crime has
had on his own life. The state further conte nds that Pioro has blam ed the victim and his
wife, has denied that he needs sex-offender treatment, and has deceived persons in the
community who support him.
We have reviewed the district court record, which provides some support for Pioro’s
arguments but also some support for the st ate’s counter-arguments. The mixed factual
record indicates that Pioro may be “som ewhat” amenable to probation but is not
7
“particularly” amenable to probation in a wa y that distinguishes him from most other
defendants. See Soto, 855 N.W.2d at 308-09. Thus, the district court did not err by
determining that Pioro is not particularly amenable to probation.
Pioro’s secondary argument for reversal is that the district court erred by not
concluding that a presumptive sentence woul d be “unreasonable, inappropriate, and
excessive” in light of his physical health. He cites one relevant opinion: State v. Kraft, 326
N.W.2d 840 (Minn. 1982). In that case, the supreme court considered but rejected the
appellant’s argument that a probationary jail term should not have been imposed because
he had been diagnosed with leukemia and was taking prescription medications. Id. at 840-
41. The supreme court stated that—notwithstanding State v. Kindem, 313 N.W.2d 6 (Minn.
1981) and other opinions expressing a gene ral reluctance to reverse a presumptive
sentence—an appellate court may modify a presumptive sentence if a defendant, “because
of his physical condition, is particularly unam enable to this form of incarceration at this
time.” Id. at 842. But the supreme court rejected the appellant’s argument in that case
because his condition did not prevent him from being a full-time college student and
because his physician’s statement was “apparently without scientific foundation.” Id.
In this case, Pioro relies on the one-page letter from his physician and the existence
of the COVID-19 pandemic. The district c ourt was not necessarily obligated to depart
from the presumptive sentencing range merely because a physician had submitted a letter
urging that action. See Soto, 855 N.W.2d at 309. In our view, the physician’s letter does
not present a compelling case fo r a downward dispositional depa rture. The letter states
that Pioro “requires meticulous care” because of his condition but does not state that such
8
care cannot be provided in prison. Similarly, the letter states that Pioro would be “at
increased risk of developing severe life-threat ening respiratory infections,” but the letter
does not elaborate on the extent of the increased risk in Pioro’ s case. It is notable that
Pioro’s physical health was mentioned only in passing in the memorandum of law in
support of Pioro’s motion and in his attorney’s oral argume nt at the sentencing hearing.
Given the nature of the evid ence and the manner in which Pi oro presented his arguments
concerning sentencing, the district court di d not err by not modi fying his presumptive
sentence as an accommodation to his physical health.
Thus, the district court did not err by denying Pioro’s motion for a downward
dispositional departure.
Affirmed.