Xanth Tyler Wilkins, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A22-0684

Xanth Tyler Wilkins, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 3, 2023
Affirmed
Bratvold, Judge

Olmsted County District Court
File No. 55-CR-19-3682

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Gaïtas, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this appeal from the district court’s order denying postconviction relief from a
criminal-sexual-conduct conviction, appellant challenges his sentence. Appellant argues
that the district court abused its discretion by denying his motion for a downward
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dispositional departure and relying on “offense-based characteristics” instead of “the
offender-based Trog criteria.” Because the district court did not abuse its discretion when
it (a) imposed a guidelines sentence after considering the parties’ submissions and
arguments and (b) denied postconviction relief after reviewing the sentencing record, we
affirm.
FACTS
On May 21, 2019, appellant Xanth Tyler Wilkins met a woman, K.C., at a bar.
Wilkins and K.C. then went to Wilkins’s residence in Rochester and began consensual
sexual contact that changed abruptly. Wilkins , without obtaining K.C.’s consent, choked
her to the point she could not breathe. K.C. tried to kick Wilkins away but could not.
Wilkins then penetrated K.C.’s vagina and anus until he ejaculated. K.C. later told an
investigating police officer she thought that “if she lost consciousness, she would not make
it out of Wilkins’s house alive.”
From her own apartment, K.C. called police. Responding officers brought her to a
hospital, where she had a sexual-assault exam. K.C. was scratched and bruised on her legs,
arms, and vaginal area. A police investigator interviewed Wilkins, who admitted to having
sexual contact with K.C. and to choking K.C. during penetration. Wilkins told the
investigator that K.C. never said that “she was okay with [choking], but also didn’t say that
she was not.” Wilkins also acknowledged that K.C. could not speak while he choked her.
Police arrested Wilkins, and respondent State of Minnesota charged him with
first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1 (2018). Count
one alleged penetration with reasonable fear of imminent bodily harm; count two alleged
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penetration using force or coercion. Id., subd. 1(c), (e)(1). Wilkins completed a
psychosexual evaluation with Riverside Psychological Services and a psychosexual
assessment with Skipped Parts LLC.
Wilkins pleaded guilty to count one in exchange for the state’s agreement to dismiss
count two and a separate complaint alleging Wilkins’s criminal sexual conduct with an
ex-girlfriend. After testifying about his decision to plead guilty, Wilkins agreed he enjoys
sex in which he is dominating or physically controlling his partner. Wilkins agreed that,
without obtaining K.C.’s consent, he “chok[ed] her for up to a minute and she became very
scared,” and he had “nonconsensual penetration.” Wilkins also agreed “there were multiple
bruises on [K.C.’s] neck and her body.” The district court accepted Wilkins’s guilty plea,
ordered a presentence investigation (PSI), and set a sentencing hearing.
Wilkins moved for a downward departure from the presum ptive sentence
disposition and duration. His motion included several letters and emails supporting his
character along with excerpts from Wilkins’s police interview. Wilkins argued that his
employment, lack of criminal history, military service, and relationship with his daughter
demonstrated that there were “more effective endeavors” than prison. He also filed a
sentencing memorandum by a dispositional advisor.
At the November 13, 2019 sentencing hearing, the district court identified each item
it reviewed, including Wilkins’s motion submissions, the letters and emails supporting him,
the reports from Skipped Parts and Riverside Psychological Services , and the PSI report.
The district court asked if there was anything else to review, both parties said no, and the
court stated that the PSI report recommended a presumptive commitment to the
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commissioner of 144 months with a guidelines range of 144 to 172 months. When asked,
neither party noted any error in the PSI report.
The district court asked for dispositional arguments first and heard from Wilkins’s
attorney and the prosecuting attorney; it also received a victim-impact statement from K.C.
and photos of K.C.’s injuries. After a brief rebuttal from Wilkins’s attorney, the district
court took a 45-minute recess to consider the dispositional motion. Upon reconvening, the
district court heard from Wilkins, who said he wanted to tell K.C. “how sorry I am for what
I’ve done. . . . I violated her and hurt her physically in ways that nobody deserves to be
treated.” The district court denied Wilkins’s motion for a stayed sentence, heard argument
on the durational-departure motion, and sentenced Wilkins to 144 months in prison.
On November 10, 2021, Wilkins petitioned for postconviction relief and did not ask
for an evidentiary hearing. He challenged his sentence, arguing the district court abused its
discretion by disregarding “offender-specific grounds for a dispositional departure .”
Wilkins contended that he should be granted “a new sentencing hearing focused on whether
the Trog factors support a motion for a downward dispositional departure.” He did not
challenge the denial of a durational departure. In a March 17, 2022 order, the district court
denied Wilkins’s petition for postconviction relief. After a detailed review of the
sentencing proceedings and applicable caselaw, the district court determined that the
evidence and the “applicable case law conclusively show that [Wilkins] is entitled to no
relief.” Wilkins appeals.
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DECISION
The district court has “great discretion in the imposition of sentences and [appellate
courts] reverse sentencing decisions only for an abuse of that discretion.” State v. Soto,
855 N.W.2d 303, 307 -08 (Minn. 2014) (quotation omitted). A district court may depart
from the presumptive sentence in the Minnesota Sentencing Guidelines “when substantial
and compelling circumstances are present.” State v. Kindem, 313 N.W.2d 6, 7 (Minn.
1981); accord Minn. Sent’g Guidelines 2.D.1 (2018). “The Minnesota Sentencing
Guidelines define two types of sentencing departures: dispositional and durational. A
dispositional departure places the offender in a different setting than that called for by the
presumptive guidelines sentence . . . [and] typically focuses on characteristics of the
defendant.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (citations omitted).

Among other things, a downward dispositional departure may be based on a
defendant’s “particular amenability to individualized treatment in a probationary setting.”
State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). But “merely being amenable to
probation” is insufficient; “requiring a defendant to be particularly amenable to
probation . . . distinguishes the defendant from most others and . . . presents the substantial
and compelling circumstances that are necessary to justify a departure.” Soto, 855 N.W.2d
at 308-09 (quotation omitted). Factors to examine when considering a defendant’s
“particular amenability” to probation include “the defendan t’s age, his prior record, his
remorse, his cooperation, his attitude while in court, and the support of friends and/or
family.” Trog, 323 N.W.2d at 31 (Trog factors).
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If the “record suggests factors for departure,” those factors “should be deliberately
considered.” State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984). When the district
court fails to exercise its discretion in denying a motion to depart, we will remand for
resentencing. State v. Mendoza, 638 N.W.2d 480, 484 (Minn. App. 2002) (remanding for
resentencing where “we cannot conclude from the record that the district court made a
deliberate decision to impose presumptive sentences by weighing reasons for and against
departure”), rev. denied (Minn. Apr. 16, 2002); Curtiss, 353 N.W.2d at 264.
But even if a district court finds that a defendant is particularly amenable to
probation, the district court need not depart. State v. Olson, 765 N.W.2d 662, 664-65
(Minn. App. 2009). “We will affirm the imposition of a presumptive guidelines sentence
when the record shows that the sentencing court carefully evaluated all the testimony and
information presented before making a determination.” State v. Johnson, 831 N.W.2d 917,
925 (Minn. App. 2013) (quotation omitted), rev. denied (Minn. Sept. 17, 2013). We reverse
a district court’s refusal to depart only in “rare” cases. State v. Walker, 913 N.W.2d 463,
468 (Minn. App. 2018) (quoting Kindem, 313 N.W.2d at 7).
Wilkins argues that the district court (1) ignored the “appropriate factors in
determining whether the defendant was particularly amenable to treatment in a
probationary setting” when it denied Wilkins’s sentencing motion and (2) erred by denying
postconviction relief. We address these arguments in turn.
1

1 The state did not file a brief on appeal, so this case is submitted for decision under Minn.
R. Civ. App. P. 142.03 and is “determined on the merits.”
7
A. The district court considered Wilkins’s motion for a downward
dispositional departure and did not abuse its discretion.

Wilkins argues that, at the sentencing hearing, the district court erred by “only
rel[ying] on offense-based characteristics, ” and the district court’s analysis “excluded”
evidence of the Trog factors. Wilkins, however, does not fairly summarize the district
court’s reasons for denying his motion for a downward dispositional departure.
At the sentencing hearing, the district court received and reviewed the psychosexual
assessment by Skipped Parts, the psychosexual evaluation by Riverside Psychological
Services, the PSI report, excerpts from Wilkins’s police interview, letters and emails
supporting Wilkins’s motion, the victim-impact statement, photographs of K.C.’s injuries,
and Wilkins’s allocution. Wilkins’s attorney agreed there were no other materials the
district court needed to consider. The district court took a 45-minute recess to consider the
evidence before reconvening and hearing from Wilkins.
Wilkins’s attorney’s argument during the sentencing hearing acknowledged that the
evidence supported both prison and community treatment. Wilkins’s attorney asked the
district court for a stay of imposition, arguing that the PSI evaluator noted Wilkins “is
amenable to treatment.” Wilkins’s attorney said the issue was, “where does that treatment
need to occur, ” and recognized that the PSI evaluator recommended prison “because of
Mr. Wilkins’s propensity toward violence and impulsive behavior.” Wilkins’s attorney
asked the district court to determine otherwise because Wilkins “acknowledged that what
he did was wrong” and should receive treatment. Wilkins’s attorney reasoned that Wilkins
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is “truly remorseful” and “[n]ormally would get consent before he had rough sex with a
partner. Intoxicated this time, didn’t do it.”
In denying Wilkins’s motion, the district court explained its reasoning in some
detail, which runs over four pages of transcript. Wilkins is correct that the district court
addressed offense-based characteristics as part of its reasoning. As Wilkins points out, the
district court stated that “when we are sentencing person-offenses like this, where profound
harm has been done to another human being, the sentence is about punishment, about
making clear through the seriousness of that punishment, that this conduct will not and
cannot be tolerated.”
The district court, however, also discussed offender-based characteristics. The
district court weighed Wilkins’s “admirable qualities,” including his loving relationship
with his “little girl,” his other family and friends, and his seven years of “serv[ice to] his
country in the Navy.” The district court commented, “Wilkins, like all of us, is the sum of
many parts, good and bad. I do not doubt the sincerity of the remorse that he expresses for
what he did. But it is clear that something very bad, very cruel, took over on the night of
this encounter.” Thus, the district court did not “only rely on offense-based characteristics,”
because the district court also considered offender-based criteria.
The district court imposed a guidelines sentence, which is presumptive absent
“substantial and compelling” circumstances. Kindem, 313 N.W.2d at 7. To provide a
substantial and compelling circumstance for departure, Wilkins must be particularly
amenable to treatment, not just amenable to treatment—as the Skipped Parts assessment
described him. See Soto, 855 N.W.2d at 309. The district court explicitly considered the
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Skipped Parts assessment, which, the district court observed, stated that Wilkins had “an
inaccurate understanding of consent” and failed to “effective[ly]” communicate with
“sexual partners.” But the district court determined “this offense was not a mere failure to
communicate. . . . This was a choking and a beating administered to a woman who flailed
with her body, tried to kick the defendant off of her, and felt she was fighting for her life.”
Because the record shows the district court reviewed the parties’ arguments and
submitted materials as well as statements by the victim and Wilkins, we conclude that the
district court “deliberately considered” Wilkins’s motion for a dispositional departure and
the relevant evidence. Simply stated, the district court considered the factors for and against
dispositional departure, unlike the district courts in Curtiss, 353 N.W.2d at 264, and
Mendoza, 638 N.W.2d at 484. The district court, thus, did not abuse its discretion by
denying Wilkins’s motion for a downward dispositional departure.
B. The district court did not abuse its discretion by denying postconviction
relief.

Wilkins argues the district court erred in denying postconviction relief because it
determined that when a district court “declines to depart dispositionally downward, it is
not required to provide [a Trog-factor] analysis.” The district court relied on State v. Pegel,
in which this court reviewed a sentencing decision that, as here, reflected “the district court
did not discuss all of the Trog factors before it imposed the presumptive sentence.”
795 N.W.2d 251, 254 (Minn. App. 2011). We concluded that “there is no requirement that
the district court must do so.” Id. The district court’s postconviction memorandum also
cited two nonprecedential opinions that reiterated the holding in Pegel . Based on the
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caselaw, the district court denied postconviction relief partly because the “failure here to
specifically address each Trog factor on the record was not improper.”
Wilkins contends first that the district court erred by relying on nonprecedential
caselaw. Wilkins correctly notes that nonprecedential opinions from this court are not
binding authority. See Minn. R. Civ. App. P. 136.01, subd. 1(c). Nonprecedential opinions
may, however, be considered for their persuasive value. Id.; Dynamic Air, Inc. v. Bloch ,
502 N.W.2d 796, 800 (Minn. App. 1993). Thus, no error occurs when a district court
considers a nonprecedential opinion for its persuasive value.
Wilkins contends second that postconviction relief is warranted for Wilkins because
the district court failed to exercise its discretion when it did not “consider factors the
Supreme Court deemed relevant to the question of whether a district court should order a
downward dispositional departure.” We are not persuaded. Wilkins admits that, under
applicable caselaw, “the district court need not articulate its rationale if denying a request
for a dispositional departure.” We agree that this is the central holding in Pegel ,
795 N.W.2d at 254. Rather, the district court must “carefully evaluate[] all the testimony
and information presented before making a determination.” Johnson, 831 N.W.2d at 925
(quotation omitted).
As was recognized during the postconviction proceedings, the district court at
sentencing “did not specifically enumerate each Trog factor in its explanation for the
denial,” but it “did address some factors on the record.” We specifically reject Wilkins’s
assertion that the postconviction analysis “validates” the need for relief because it finds
“most” of the Trog factors “supported a probationary sentence.” To the contrary, the district
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court’s postconviction analysis stated that the offender-related factors “were a mixed-bag,”
and “no factors—or combination thereof— made a compelling case” for why Wilkins was
“particularly amendable” to probation.
In conclusion, because the district court’s decision to deny postconviction relief is
supported by applicable law and the sentencing record in this case, the district court did
not abuse its discretion by denying Wilkins’s postconviction petition.
Affirmed.