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This opinion is nonprecedential except as provided by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
A21-0616

State of Minnesota,
Respondent,

vs.

Nicholas Rodriguez,
Appellant.

Filed April 18, 2022
Affirmed in part, reversed in part, and remanded
Ross, Judge

Dakota County District Court
File No. 19HA-CR-19-2806

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

Kathryn M. Keena, Dakota County Attorney , Jessica Bierwerth, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Pres iding Judge; Ross, Judge; and Larkin,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
After Nicholas Rodriguez pleaded guilty to six counts of possession of child
pornography, the district court sentenced hi m to 51 months in prison and imposed a
ten-year conditional-release term. On appeal Rodriguez argues that the district court should
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have granted his motion for a downward di spositional departure and not ordered the
conditional-release term. Because the district court acted within its discretion by sentencing
Rodriguez to the presumptive prison term , we affirm in part; but because the
child-pornography statute does not authorize the ten-year conditional-release period in this
case of simultaneous convictions, we reverse in part and remand for an adjusted sentence.
FACTS
The state charged Nicholas Rodriguez with six counts of possessing pornographic
material involving minors based on photographs investigators discovered on his computer.
Rodriguez pleaded guilty and th e district court adjudicated him guilty on all six counts
simultaneously.
Before sentencing Rodriguez, the district court considered information suggesting
that he failed to appreciate his culpability. A preplea inves tigation report stated that
Rodriguez “does not accept responsibility for the child pornographic images.” He first told
the investigator that he tried to delete the photos from his computer, then said the photos
“looked fake,” and then he said that former roommates placed them on his computer. The
report referenced a psychosexual evaluation th at found that Rodriguez’s responses raised
concerns of improper sexual behavior. The evaluator concluded that Rodriguez’s answers
suggested that he had viewed the photos and that he seemed to be “underreporting with
regard to his sexual interests and behaviors. ” She added, “There is an abundance of
evidence of sexual preoccupation and behavior, yet he presents himself as largely asexual.”
The district court also received a presente nce investigation report that similarly
indicated that Rodriguez was minimizing his gu ilt. It recounted that he claimed to have
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simply discovered the violative images on his computer, that he had tried to delete them,
and that the images were merely “computer-gen erated.” And he again insinuated that his
former roommates were responsible. He e xpressed remorse for fa iling to delete the
photographs from his computer, not for possessing child pornography. He said that he was
willing to enter treatment. But he clarified that he wanted to comple te treatment only to
establish his innocence, saying, “[It will] prove to you guys this case is not me . . . . I will
prove you guys were wrong.”
Rodriguez moved for a downward dispositio nal departure, seeking a stayed prison
sentence with five years of supervised prob ation. At his sentenci ng hearing, Rodriguez
informed the district court that, although he had pleaded guilty, he maintained that he was
not responsible for the images on his computer. He reiterated his desire to “prove you all
wrong.”
The district court denied Rodriguez’s motion for a downward departure. It
sentenced him to 51 months in prison, which is the presumptive sentence under Minnesota
Sentencing Guidelines 4.B. The district court set a conditional-release term of five years
for count 1 and ten years for counts 2 through 6.
Rodriguez appeals.
DECISION
Rodriguez challenges two elements of his sentencing. He first argues that the district
court improperly denied his motion for a downward dispositional departure and second that
the child-pornography statute does not authorize a ten-year conditional-release term in this
case of simultaneous convictions. Only his second argument prevails.
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We are unpersuaded by Rodriguez’s contention that we must reverse the district
court’s decision denying his motion for a downward dispositional departure. We review a
district court’s sentencing decisi on for an abuse of discretion. State v. Soto, 855 N.W.2d
303, 307–08 (Minn. 2014). A district court ma y (but is not required to) depart from a
presumptive sentence when “identifiable, s ubstantial, and compelling circumstances”
justify doing so. Minn. Sent. Guidelines 2.D.1 (2020); Soto, 855 N.W.2d at 308. This
deference to the district court exists because a guidelines-generated sentence is presumed
to be correct, departures are by nature unusual, the district court is not required to give
reasons justifying its denial of a departure motion, and the district court is not obligated to
depart even if the circumstances would allow it. Soto, 855 N.W.2d at 308; State v.
Abrahamson, 758 N.W.2d 332, 337 (Minn. App. 2008), rev. denied (Minn. Mar. 31, 2009).
The supreme court accurately anticipated in dicta that it would be a “rare” occasion when
an appellate court would reverse the district court’s decision to impose a presumptive
sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). This is not one of those cases.
Rodriguez contends that the record shows that he is particularly amenable to
probation. A substantial and compelling circ umstance exists to support a dispositional
departure when the convicted defendant is particularly amenable to probation. State v.
Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). Fact ors relevant to whether a defendant is
particularly amenable to probation include his age, prior crimin al record, remorse,
cooperation, attitude while in court, and the support of family and friends. State v. Trog,
323 N.W.2d 28, 31 (Minn. 1983 ). But whatever factors the de fendant points to, he must
show that he is particularly amenab le, not just amenable, to probation. Soto, 855 N.W.2d
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at 309. Under different circumstances, Rodri guez’s age, lack of criminal history,
willingness to participate in sex-offender tr eatment, and the support of his family and
friends might suggest that he is amenable to probation. Bu t he would still need to show
further that he is particularly amenable to probation. And the record supports the district
court’s concern that Rodriguez was neither genuinely remorseful about having the child
pornography in his possession nor accepting of his responsibility for doing so. He passed
the responsibility onto his roommates, and he even referred to the incriminating
photographs as “fake” while insisting on his own moral innocence. Blame-shifting and
minimizing one’s culpability does not make one amenable to probation, let alone
particularly amenable to it. The record supports the distri ct court’s refusal to grant
Rodriguez’s motion for a downward departure.
Rodriguez also argues that the district court was not authorized to impose a ten-year
conditional-release term to follow his incarcera tion. He is correct. Wh ether a sentence is
authorized by statute is a question of law that we review de novo. State v. Williams ,
771 N.W.2d 514, 520 (Minn. 2009). The statute presumes a five-year conditional-release
term for a child-pornography conviction, but it requires a ten-year term “[i]f the person has
previously been convicted of a violation of this section.” Minn. Stat. § 617.247, subd. 9
(2020). We recently interpreted a different but similar statutory scheme in a manner that
favors Rodriguez’s contention. In State v. Brown , as here, the defendant was
simultaneously convicted on different coun ts. 937 N.W.2d 146, 155 (Minn. App. 2019).
The district court imposed a lifetime conditional-release term under Minnesota Statutes
section 609.3455, subdivision 1(g) (2016), reasoning that one of the simultaneous
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convictions was a “prior sex offense” based on the timing of the condu ct rather than the
timing of the convictions. Id. at 156. We reversed, reasoning that a “prior sex offense” for
sentencing purposes is not an offense ad judicated simultaneously with another. Id. at
156–57. The same reasoning applies here to a statute that similarly triggers a longer term
based on one conviction following another. If a simultaneous conviction is not a “prior sex
offense,” it also is not a “previously” occurring conviction.
We are not persuaded otherwis e by the state’s argument that State v. Overweg ,
922 N.W.2d 179 (Minn. 2019), requires a different outcome. Overweg addressed a
different issue, which is whether the defe ndant had a qualifying conviction when he
committed the conduct leading to his child-pornography conviction. Id. at 182. Overweg
had argued that he should receive only a five-year rather than ten-year conditional-release
term because he “was not convicted of th e sex offense at the time he committed the
possession of pornographic work s involving a minor offense.” Id. Unlike the Overweg
issue of the timing of the related offensive conduct, here our issue is the timing of the
related adjudications.
We reverse the district court’s order im posing a ten-year conditional-release term
on counts 2 through 6. On remand, the district court should amend the sentence to impose
a five-year conditional-release term.
Affirmed in part, reversed in part, and remanded.