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This opinion is nonprecedential except as provided by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
A21-1291

State of Minnesota,
Respondent,

vs.

Diedrich Allen Middleton,
Appellant.

Filed August 15, 2022
Affirmed
Johnson, Judge

Brown County District Court
File Nos. 08-CR-18-428, 08-CR-18-489

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

Charles W. Hanson, Brown County Attorney, Daniel D. Kalk, Assistant County Attorney,
New Ulm, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and John Smith,
Judge.∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Diedrich Allen Middleton was charged with eleven counts of criminal sexual
conduct in three cases involving three different children. He pleaded guilty to two counts,
and nine counts were dismissed. On appeal, he challenges the district court’s imposition
of a presumptive sentence for one of his two convictions. We conclude that the district
court did not err in imposing the sentence and, therefore, affirm.
FACTS
In April and May of 2018, the state charged Middleton with multiple counts of
criminal sexual conduct in three separate cases.
First, in case number 08-CR-18-428, the state charged Middleton with one count of
first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a)
(2006), and four counts of second-degree criminal sexual conduct, in violation of Minn.
Stat. § 609.343, subd. 1(a), (g) (2006 ). The state alleged that Middleton attempted to use
his penis to penetrate the anus of his daughter, K.P., when she was three years old, and,
later, groped her breasts, touched her vagina, and forced her to touch his penis when she
was approximately nine years old.
Second, in case number 08-CR-18-459, the state charged Middleton with one count
of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a)
(2004). The state alleged that Middleton used his penis to penetrate the vagina of M.D.,
the daughter of Middleton’s then-girlfriend, when she was three years old.
3
Third, in case number 08-CR-18-489, the state charged Middleton with four counts
of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(b),
(c), (e), (h)(iii), and one count of second- degree criminal sexual conduct, in violation of
Minn. Stat. § 609.343, subd. 1(h)(iii). The state alleged that Middleton forced K.S., the
daughter of a man who was renting a room in Middleton’s home, to engage in sexual
contact on multiple occasions. The state also alleged that, when K.S. was nine years old,
Middleton showed her pornographic videos and inappropriately touched her over her
clothes. When she was between 13 and 14 years old, Middleton forced her to engage in
sexual conduct with him on a weekly basis. The sexual conduct included the penetration
of K.S.’s vagina and anus with Middleton’s penis as well as dildos, other sex toys, and a
beer bottle. On at least one occasion, Middleton choked K.S. to the point that she could
not breathe. The state alleged that Middleton threatened K.S. with physical violence on
more than one occasion and once shocked her with a cattle prod.
Approximately three years after the charges were filed, the state and Middleton
entered into two plea agreements that resolved all 11 charges. In May 2021, in the third
case, Middleton entered into an Alford plea1 to one of the first-degree charges. The state

1A defendant enters an Alford guilty plea if he maintains his innocence but has
“clearly expressed his desire to enter the plea based on his belief that the State’s evidence
would be sufficient to convict him.” State v. Theis, 742 N.W.2d 643, 647 (Minn. 2007)
(citing North Carolina v. Alford, 400 U.S. 25, 38 (1970)). An Alford plea is valid in
Minnesota so long as there is a “strong factual basis,” the defendant has agreed “that the
evidence is sufficient to support his conviction,” and the district court “independently
conclude[s] that there is a strong probability that the defendant would be found guilty of
the charge to which he pleaded guilty, notwithstanding his claims of innocence.” Id. at
649.
4
dismissed the four other counts and dismissed its then-pending motion for an aggravated
sentence. The parties agreed to the imposition of an executed sentence of between 144 and
160 months of imprisonment, which is entirely within the presumptive sentencing range
given Middleton’s criminal-history score. See Minn. Sent. Guidelines IV (2007).
In June 2021, in the first case, Middleton entered an Alford plea to one of the second-
degree charges. The state dismissed the four other counts in the first case and dismissed
the second case in its entirety. The parties also agreed to a presumptive sentence in the
first case that would run concurrently with the sentence imposed in the third case.
In July 2021, in the third case, the district court imposed a sentence of 160 months
of imprisonment, the maximum length to which the parties agreed. The district court
explained its reasoning as follows:
I think that this is a particularly egregious case. Its
charge is sexual penetration or contact with a person under 13
by an actor more than 36 months older. There’s a world of
difference between a 12-year -old and a 3-year -old, and what
we have here is several young women who were sexually
abused in multiple ways, over multiple years, and I, I think that
I would be remiss if I gave Mr. Middleton anything less than
the maximum allowed by the parties’ agreement in this case.

In the first case, the district court implemented the parties’ agreement by imposing a
presumptive 70-month prison sentence and ordering that it run concurrently with the 160-
month prison sentence in the third case. Middleton appeals.

5
DECISION
Middleton argues that the district court erred by imposing the longest possible
presumptive sentence, instead of a shorter presumptive sentence, for his conviction in the
third case.
The Minnesota Sentencing Guidelines prescribe presumptive sentences for felony
offenses. Minn. Sent. Guidelines II.C (2007). For 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 app. (2007). “The offenses
within the Sentencing Guidelines Grids are presumptive with respect to the duration of the
sentence.” Minn. Sent. Guidelines II.C. A district court may depart from the presumptive
range only if “there exist identifiable, substantial, and compelling circumstances to support
a sentence outside the range on the grids.” Minn. Sent. Guidelines II.D.
This court has stated that “any sentence within the presumptive range . . . constitutes
a presumptive sentence.” State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), rev.
denied (Minn. July 20, 2010). As a consequence, we “will not generally review a district
court’s exercise of its discretion to sentence a defendant when the sentence imposed is
within the presumptive guidelines range.” Id. We may modify a presumptive sentence but
only in “rare” cases and only if modification is supported by “compelling circumstances.”
Id. (quotations omitted).
A.
Middleton contends that the district court erred for two reasons. He first contends
that the district court misunderstood the offense of conviction when it imposed a sentence
6
for his first-degree conviction in the third case. His contention is based on the fact that, at
the sentencing hearing, the district court referred to a charge of “sexual penetration or
contact with a person under 13 by an actor more than 36 months older.” Middleton notes
that the conviction for which he was sentenced in the third case is penetration or contact
with a person less than 16 (not 13) years of age and that the complaint alleged that the
victim, K.S., was more than 13 at the time of the offense. Middleton asserts, “Because the
court misunderstood the offense before it for sentencing, it considered offense elements
that were both legally irrelevant and absent from the factual record.” In response, the state
acknowledges that the district court referred to a charge that is not the offense of conviction
but contends that the district court properly based its sentence on the facts underlying the
offense of conviction.
The record as a whole does not indicate that the district court misunderstood the
offense of conviction when it imposed Middleton’s sentence. The district court stated that
it had reviewed the pre-sentence investigation report, which correctly identified the offense
of conviction as first-degree criminal sexual conduct involving a person under the age of
16. In addition, the district court judge signed the warrant of commitment, which correctly
identified the offense of conviction. The district court’s misst atement during the
sentencing hearing may have arisen from the fact that the 2006 version of section 609.342,
subdivision 1, generally criminalizes conduct toward persons “under 13 years of age,” yet
some paragraphs of that subdivision specifically criminalize conduct toward persons who
are older than 13. See Minn. Stat. § 609.342, subd. 1(b), (h) (2006). We are not convinced
7
that the district court incorrectly sentenced Middleton for a crime committed against a
person under the age of 13.
B.
Middleton also contends that the district court improperly based its sentence on
conduct underlying other counts that were dismissed or on which a sentence was imposed.
He bases this contention on the fact that the district court referred to “several young
women,” which, Middleton asserts, implies that the district court considered the allegations
concerning the children involved in the first and second cases.
In support of his argument, Middleton relies primarily on two supreme court
opinions holding that, in imposing an upward durational departure from a presumptive
sentence, a district court may not rely on conduct underlying other charges that either were
not proved or were dismissed. See State v. Cermak, 344 N.W.2d 833, 837-39 (Minn. 1984);
State v. Womack, 319 N.W.2d 17, 18-20 (Minn. 1982). These opinions do not apply to this
case because the district court did not impose an upward durational departure. Rather, the
district court imposed a sentence within the presumptive guidelines range. “A sentence
within the range provided in the appropriate box on the sentencing guidelines grid is not a
departure from the presumptive sentence.” Delk, 781 N.W.2d at 428-29. Accordingly, the
applicable caselaw is the well-developed caselaw—consisting of opinions issued both
before and after Cermak and Womack—that an appellate court “generally will not interfere
with a sentencing court’s decision to impose a term within the presumptive sentence
range.” State v. Kangbateh, 868 N.W.2d 10, 14 (Minn. 2015); see also State v. Freyer,
328 N.W.2d 140, 142 (Minn. 1982); State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); Delk,
8
781 N.W.2d at 428; State v. Andren, 347 N.W.2d 846, 848 (Minn. App. 1984). Middleton
has not cited any caselaw for the proposition that a district court errs by considering
conduct underlying dismissed charges when imposing a presumptive sentence. Thus,
Middleton has not established that the district court erred by referring to conduct other than
the conduct toward K.S. for which he pleaded guilty.
Even if we were to apply Cermak and Womack and conclude that the district court
erred, we nonetheless would affirm the sentence imposed. If Cermak and Womack were
extended to the imposition of a presumptive sentence, it would be appropriate to also
extend supreme court caselaw that limits the remedy available under Cermak and Womack.
The supreme court has held, in the context of an upward departure, that “[r]eversal is
warranted only if . . . there is insufficient evidence to justify [the] sentence for the offense
of which the defendant was convicted.” State v. Vance, 765 N.W.2d 390, 395 (Minn.
2009). Stated differently, “In deciding whether to affirm or remand, [an appellate court]
must determine whether the district court would have imposed the same sentence absent
reliance upon the improper . . . factor.” State v. Stanke, 764 N.W.2d 824, 828 (Minn. 2009).
In Stanke, the “admitted facts” were “ so extreme” that the supreme court concluded on
appeal that the absence of improper considerations “would not change the court’s sentence
on remand.” Id. at 829. Accordingly, the supreme court affirmed the erroneously imposed
sentence without remanding. Id.
The facts underlying Middleton’s conviction of first-degree criminal sexual conduct
in the third case are similarly extreme. Middleton admitted that, if the case were tried, the
state would introduce sufficient evidence that he engaged in criminal sexual conduct
9
toward K.S. multiple times “over an extended period of time,” starting when she was 13
years old, that he sometimes penetrated her after she asked him to stop, that he once choked
her while sexually assaulting her, and that he once used a beer bottle to penetrate her
vagina. Thus, even if we were to apply Cermak and Womack, we would affirm Middleton’s
sentence, which is within the presumptive range.
In sum, the district court did not err by imposing a presumptive sentence of 160
months of imprisonment for Middleton’s conviction of first-degree criminal sexual conduct
in the third case.
Affirmed.