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This opinion is nonprecedential except as provided by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
A21-0679

State of Minnesota,
Respondent,

vs.

Tony James Hewitt,
Appellant.

Filed April 18, 2022
Affirmed in part, reversed in part, and remanded
Smith, John, Judge*

Nicollet County District Court
File No. 52-CR-18-411

Keith Ellison, Attorney General, Lydia Villalva Lijó, Assistant Attorney General, St. Paul,
Minnesota; and

Michelle Zehnder Fischer, Nicollet County Attorney, St. Peter, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Wheelock, Judge; and Smith, John,
Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
SMITH, JOHN,
We affirm the district court’s denial of appellant Tony James Hewitt’s motion for a
downward dispositional depart ure because the district court considered the reasons
advanced for departure and in its discretion rejected them. We reverse in part and remand
for resentencing because the eight convictions of burglary and two criminal-sexual-conduct
convictions were part of the same behavioral incident, and he shou ld only have been
sentenced on one conviction for burglary and one conviction for criminal sexual conduct.
FACTS
Appellant was awaiting sentencing after pl eading guilty to third-degree driving
while intoxicated.1 Hewitt was furloughed from jail in August 2018 to receive inpatient
treatment from the Veterans Affairs clinic in Mankato. Hewitt was discharged from
treatment and a warrant was issued because he failed to return to the Nicollet County jail.
Two days later, according to victim T.P.’s testimony, T.P. fell asleep on her living
room couch without locking the doors to he r St. Peter townhouse. She woke up to the
sound of her dog barking, and someone walking upstairs and speaking. T.P. went upstairs
and found Hewitt in her daughter’s bedroom sitting on her daughter’s bed. T.P testified
that she and Hewitt had consensual sexual relations decades earlier in high school, but that

1 The facts come from testimony established at trial.
3
recently he would come over to her house “a couple times a year” wanting to have sex.
She would agree to have sex with Hewitt to ge t him to leave. This night, however, T.P.
told Hewitt he had to leave. They walked downstairs to talk—T.P. repeatedly told Hewitt
to leave. When T.P. threatened to call the police, Hewitt said he would “knock [her] out”
if she did.
At around 3:00 a.m., T.P began calling and sending text messages to her friends
D.M. and T.H. asking for help. Hewitt, who refused to leave, approached T.P. in her living
room and tried to remove her pants. He eventually removed her pants and digitally
penetrated her vagina and anus in a “pounding” manner, causing T.P. “a lot of pain.” T.P.
continued to tell Hewitt to leave and resisted until D.M. arrived. D.M. said that police were
on their way, and Hewitt ran out of the front door.
In an amended complaint the state char ged Hewitt with fourteen offenses: four
counts of criminal sexual conduct, eight co unts of burglary, and one count each of false
imprisonment and interfering with an emergency call.
2
At trial, Hewitt testified that he went to T.P.’s house to discuss treatment, not to
have sex. Instead, Hewitt said that T.P. agreed to “role play,” which included sending text
and voicemails to her friends before they enga ged in, according to him, consensual sex.
He testified that he left after D.M. arrived and acted aggressively toward him.

2 Minn. Stat. §§ 609.342, subd. 1(e)(i), .343, subd. 1(e)(i), .344 subd. 1(c), .345, subd. 1(c),
.582, subd. 1(a), (c), .582, subd . 2(a)(1), .582, subd. 3, .713, subd. 1, .255, subd. 2, .78,
subd. 2(1) (2018).
4
The jury found Hewitt guilty of each count of criminal sexual conduct and burglary
and found him not guilty of false imprisonment and interference with an emergency call.
Hewitt requested that sentencing be contin ued to document his military service and
to allow for a psychosexual evaluation. Over the state’s objection, the district court
continued the matter, and he was remanded in to custody pending sentencing. After
submitting a presentence investigation report (PSI), a sentencing memorandum, and a
psychosexual evaluation report and exhibits, Hewitt moved for a downward dispositional
departure. At the sentencing hearing, Hewitt’s counsel detailed Hewitt’s military service,
physical and mental injuries, and disc ussed the psychosexual evaluation (which
recommended a probationary sentence).
The district court denied the dispositional departure, stating:
I have considered the briefs that have been filed on your behalf,
and your service to the country. And I recognize that you had
some traumatic things occur to you, but the offense that you
were convicted of is a very serious offense.

The district court formally adjudicated an d sentenced Hewitt on all ten counts. The
sentence for the first-degree criminal se xual conduct was a term of 144 months’
imprisonment. The remaining sentences were all concurrent because, as the district court
found, they were part of a “single behavioral incident.”
DECISION
I. The district court considered Hewi tt’s arguments before denying his motion
for a downward dispositional departure.

First, Hewitt challenges the district cour t’s denial of his motion for a downward
dispositional departure. We re view the district court’s deci sion whether to depart from a
5
presumptive sentence for an abuse of discretion. State v. Schmit , 601 N.W.2d 896, 898
(Minn. 1999). The Minnesota Se ntencing Guidelines limit th at discretion by prescribing
presumptive sentences. State v. Soto , 855 N.W.2d 303, 308 (Minn. 2014) (citing Minn.
Sent. Guidelines 2.D.1 (2014) 3). A district court must a dhere to those presumptive
sentences unless “substantial, and compe lling” reasons warrant a departure. Id. (quoting
Minn. Sent. Guidelines 2.D.1 and cmt. 2.D.103).
At issue here is a downward dispositional departure. In determining whether to
grant a downward dispositional departure, the district court focuses on the defendant’s
individual characteristics and what sentence would be best fo r the defendant and society.
State v. Heywood , 338 N.W.2d 243, 244 (Minn. 1983). It is also well-established that
district courts may consider both offens e-related and offender-related factors when
deciding whether to grant a reque st for dispositional departure. State v. Walker , 913
N.W.2d 463, 468 (Minn. App. 2018). The guidelines provide a nonexclusive list of
mitigating factors that may warrant a dispositional departure, including when the defendant
is “particularly amenable to probation.” Soto, 855 N.W.2d at 308. The factors the district
court may consider in determ ining whether the defendant is particularly amenable to
probation include, but are not limited to, “the defendant’s age, his prior record, his remorse,
his cooperation, his attitude while in court, a nd the support of friends and/or family” (the
Trog factors). See id. at 310 (quoting State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982)).

3 The 2019 version of the guidelines has not materially changed.
6
The presence of mitigating factors does not obligate the district court to grant a departure.
Wells v. State, 839 N.W.2d 775, 781 (Minn. App. 2013) (quoting State v. Wall, 343 N.W.2d
22, 25 (Minn. 1984)).
Additionally, there are sentencing considera tions that apply for military veterans.
The district court is required to ask if a defendant is a veteran of the armed forces. Minn.
Stat. § 609.115, subd. 10 (2018). If that vete ran has been diagnosed as having a mental
illness by a medical professiona l, the district court “ may . . . consider the treatment
recommendations of any diagnosing or treating mental health professionals together with
the treatment options available to the defendant in imposing sentence.” Id. at subd. 10(b)
(emphasis added). And if the defendant has a serious and persistent mental illness, which
includes PTSD, the district court “whe n consistent with public safety, may instead place
the offender on probation.” Minn. Stat. § 609.1055 (2018) (emphasis added).
Here, the district court considered the state’s sentencing memorandum and defense
counsel’s written reply, as well as the psychose xual evaluation and exhibits. The district
court also heard testimony on the results of the evaluati on, the doctor’s recommendation
that Hewitt be put on probation, and the victim impact statement from T.P. But the district
court, while recognizing Hewitt’s military-relat ed trauma, noted that the offense against
T.P. was a “very serious offense.” Based on th is record, we discern that the district court
considered all this information and testimony—including military-related and mental-

7
illness-related mitigating factors—before ruling that Hewitt was not amenable to
probation. Therefore, the district court did not abuse its discretion.
To convince us otherwise, Hewitt also alle ges that the district court erred by not
showing a “deliberate consideration” of th e factors supporting a probationary sentence
because the district court did not expressly refute the expert testimony regarding his mental
health. The district court noted it read the briefs and other responses, and there are over 12
pages of transcript in which Hewitt’s counsel explained Hewitt’s underlying mental health
issues and summarized the expert’s conclusi ons. Hewitt does not otherwise point to a
requirement that the district court must expressly refute every point made when denying a
departure. And our caselaw highlights the opposite—there is no requirement to discuss all
mitigating factors presented to the court. State v. Van Ruler , 378 N.W.2d 77, 80 (Minn.
App. 1985) (stating that if the district cour t “considers reasons for departure but elects to
impose the presumptive sentence,” an explanation for denying departure is not required).4
Accordingly, the district court did not abuse its discretion when denying the motion
for a dispositional departure.

4 Hewitt also cites to Porter v. McCollum, 558 U.S. 30, 43- 44 (2009) to ar gue that there
were substantial and compelling reasons to depart. Porter is not applicable here. Not only
does Porter involve the determination of mitigating factors for a defendant facing the death
penalty, the error was in the Florida postconviction court fa iling to consider Porter’s
military service and childhood abuse. Here, the record shows that Hewitt’s military service
and mental trauma were explicitly stated and repeated before the district court. The district
court, in its discretion, did not consider them adequate for a departure. This is not the same
as the error of not considering those issues at all.
8
II. The district court impr operly adjudicated and se ntenced Hewitt due to the
offenses being part of a single behavioral incident.

Next, Hewitt argues that the district c ourt improperly adjudi cated and sentenced
Hewitt to two counts of criminal sexual conduct and eight counts of burglary. Hewitt and
the state agree on all points of this issue, including the remedy: reverse the judgments of
conviction for all counts and remand for resentencing for one count of first-degree criminal
sexual conduct and one count of first-degree burglary based on viol ations of Minnesota
Statutes sections 609.035, .04, and .585 (2018).
5
We review whether a conviction or sentence violates sections 609.035, .04, or .585
de novo. State v. Holmes , 778 N.W.2d 336, 339 (Minn. 20 10). When a defendant is
convicted of more than one charge for the same act, the proper procedure is to reverse the
convictions and remand for the district court to adjudicate formally and impose a sentence
on one count only and to leave the re maining counts unadjudicated. State. v. LaTourelle,
343 N.W.2d 277, 284 (Minn. 1984).
Turning to the violated statutes, under se ction 609.04, a person may be convicted of
either the crime charged or an included offense, but not both. Minn. Stat. § 609.04, subd. 1.
This statute also bars multiple convictions under different sections of a criminal statute for
acts committed during a single behavioral incident. State v. Jackson, 363 N.W.2d 758, 760
(Minn. 1985). Similarly, if a defendant commits multiple offenses against the same victim

5 Hewitt did not object before the district court to the multiple adjudications and sentences.
But an appellant does not waive claims of mu ltiple convictions or sentences by failing to
raise the issue at the time of sentencing. Spann v. State , 740 N.W.2d 570, 573 (Minn.
2007).
9
during a single behavioral incident, section 609.035 provides that the defendant may be
sentenced for only one of those offenses. Minn. Stat. § 609.035; State v. Bookwalter, 541
N.W.2d 290, 293 (Minn. 1995). Finally, section 609.585 permits a district court to impose
a sentence for burglary and “any other crime” committed during the burglary.
Criminal-sexual-conduct convictions
Looking first at the criminal sexual cond uct offenses, third-degree criminal sexual
conduct is an included o ffense of first-degree criminal sexual conduct. State v. O’Brien,
369 N.W.2d 525, 526-27 (Minn. 1985).
Here, the district court adjudicated and sentenced Hewitt on both first-degree
criminal sexual conduct and third-degree criminal sexual conduct. The district court also
found that this conduct was part of a singl e behavioral incident. Because third-degree
criminal sexual conduct is an included offense of first-degree criminal sexual conduct, and
because Hewitt’s conduct was found to be pa rt of a single behavioral incident, the
conviction and sentence on the count of thir d-degree criminal sexual conduct violate
sections 609.035 and .04.
Burglary convictions
Turning next to the burglary convicti ons, the district court adjudicated and
sentenced Hewitt to four counts of first- degree burglary, two counts of second-degree
burglary, and two counts of third-degree burglary. Because these counts are all under the
same statute, section 609.582, the convictions for all eight offenses violate section 609.04.
Jackson, 363 N.W.2d at 760.
10
In sum, we reverse and rema nd to the district court with instructions to vacate all
but one conviction and sentence for first- degree criminal sexual conduct and one
conviction and sentence for first-degree burglary.6
Affirmed in part, reversed in part, and remanded.

6 Vacating the convictions and sentences does not reverse or overtu rn the jury’s guilty
verdicts on these offenses. Walker, 913 N.W.2d at 467, 469.