State of Minnesota, 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This opinion is nonprecedential except as provided by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
A25-0708

State of Minnesota,
Appellant,

vs.

Timothy Michael Leistiko,
Respondent.

Filed April 6, 2026
Reversed and remanded
Smith, Tracy M., Judge

Carver County District Court
File No. 10-CR-24-109

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

Mark Metz, Carver County Attorney, Angella M. Erickson, Assistant County Attorney,
Chaska, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, John Patrick Monnens, Assistant
Public Defender, St. Paul, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Smith, Tracy M., Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION

SMITH, TRACY M., Judge
In this sentencing appeal, appellant State of Minnesota argues that the district court
abused its discretion by departing durationally from the presumptive guidelines sentence.
Because nothing in the record establishes that respondent Timothy Michael Leistiko’s
2
conduct was less serious than typical for the offenses that he committed, we reverse and
remand for resentencing.
FACTS
By an amended complaint, Leistiko was charged with 29 counts of possessing child-
sexual-abuse material involving a minor under the age of 14, in violation of Minnesota
Statutes section 617.247, subdivision 4(a), (b)(3) (2022). 1 Pursuant to a plea agreement,
Leistiko agreed to plead guilty to counts 2, 8, 12, 15 and 19. In exchange, any remaining
counts would be dismissed, and the state would argue for a commitment to the department
of corrections of no more than 102 months— the low end of the presumptive range given
Leistiko’s criminal-history score based on Hernandizing.2 Leistiko would remain free to
argue for a durational and a dispositional departure. At the plea hearing, Leistiko admitted
to viewing, accessing, and downloading child-sexual-abuse images from February to
August in 2023.
In January 2025, the district court held a sentencing hearing. The state requested a
102-month commitment. Leistiko’s counsel argued for a dispositional departure to
probation. Leistiko also addressed the district court personally, expressing remorse and
recognition of his personal issues and need for therapy.

1 At the time of appellant’s offenses, the relevant statute stated that it criminalized the
possession of “pornographic work” involving a minor. Minn. Stat. § 617.247 (2022). In
2025, the legislature amended the statute and changed the phrase “pornographic work” to
“child sexual abuse material.” Minn. Stat. § 617.247 (Supp. 2025). Because this
amendment does not affect the resolution of the case, we use the updated language.

2 As further explained below, Hernandizing is a method for incorporating in an offender’s
criminal-history score other offenses that are sentenced on the same day.
3
The district court then proceeded with sentencing. It followed the guidelines for the
first three counts, Hernandizing as it went. This resulted in the following concurrent
sentences for the first three counts:
Count 2: 24 months’ imprisonment, stayed
Count 8: 36 months’ imprisonment, stayed
Count 12: 60-month commitment.
The district court then continued to Hernandize for the last two counts but departed
durationally from the presumptive sentences for each count. This resulted in the following
concurrent sentences for the last two counts:
Count 15: 60-month commitment (presumptive 78 months)

Count 19: 60-month commitment (presumptive 120 months).

The state appeals.
DECISION
The state argues that the district court abused its discretion by durationally departing
from the guidelines on counts 15 and 19 and asks us to reverse and remand with instructions
to impose a sentence within the guidelines. Leistiko makes two arguments in support of his
sentence: (I) in imposing the 60-month concurrent sentences on counts 15 and 19, the
district court was not departing but was effectively choosing not to Hernandize the last two
offenses, which was a proper exercise of its discretion; and (II) alternatively, even if the
district court did depart, the departure is justified. We address these arguments in turn.
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I. The district court Hernandized counts 15 and 19 according to the guidelines.

Leistiko argues that the 60-month sentences for counts 15 and 19 resulted from the
district court’s discretion not to Hernandize, rather than from a durational departure.
Hernandizing is a process defined in the sentencing guidelines for counting criminal
history when, like here, the offenses being sentenced arose out of separate behavioral
incidents and are sentenced on the same day before the same court. Minn. Sent’g
Guidelines 1.B.10, 2.B.1.e (2022); see State v. Hernandez, 311 N.W.2d 478, 481 (Minn.
1981). In those circumstances, the district court sentences each offense in the order in
which it occurred and, as each offense is sentenced, includes it in the criminal-history score
of the next offense. Minn. Sent’g Guidelines 1.B.10, 2.B.1.e.
Leistiko argues that the district court stopped Hernandizing after the third offense
sentence when it imposed 60-month sentences for the last two offenses. He asserts that
district courts have the discretion not to Hernandize and that the district court properly
exercised that discretion here. The state counters that Hernandizing is mandatory, arguing
that it is part of the guidelines and cannot be deviated from without “aggravating or
mitigating factors.”
As Leistiko points out, this court has characterized Hernandizing as discretionary.
See State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985) (“The Hernandez method
may be used by the trial court, in its discretion, . . . provided it is not used to achieve a
substantive result not intended by the guidelines.”). But we need not further address
whether the district court had discretion not to Hernandize because it explicitly did
Herndandize here. When sentencing on counts 8, 12, 15, and 19, the district court
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incorporated the prior counts to calculate the criminal-history score. After Hernandizing ,
the presumptive sentences for counts 15 and 19 were, respectively, 78 months (range of
67-93 months) and 120 months (range of 102-120 months). See Minn. Sent’g Guidelines
4.B (2022). The district court imposed 60-month sentences for counts 15 and 19 and stated
that each sentence constituted a durational departure. The district court therefore departed,
and we turn to the question whether the departure was proper.
II. The district court’s durational departure was an abuse of discretion.

The state argues that the district court abused its discretion by durationally departing
from the guidelines on counts 15 and 19.
Appellate courts review a district court’s decision to depart from the presumptive
guidelines sentence for an abuse of discretion. Taylor v. State, 670 N.W.2d 584, 588 (Minn.
2003). The district court abuses its discretion when the “reasons for departure are improper
or inadequate.” State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009) (quotation omitted).
“If the reasons given are improper or inadequate and there is insufficient evidence of record
to justify the departure, the departure will be reversed.” State v. Geller, 665 N.W.2d 514,
516 (Minn. 2003) (quoting State v. Williams, 361 N.W.2d 840, 844 (Minn. 1985)).
The district court may depart from the guidelines only when “there exist identifiable,
substantial, and compelling circumstances to support a departure.” Minn. Sent’g
Guidelines 2.D.1 (2022). Departures from the guidelines are meant to apply only to a small
number of cases. State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002); Minn. Sent’g
Guidelines cmt. 2.D.301 (2022). “Durational departures may be justified by offense-related
reasons only.” State v. Rund, 896 N.W.2d 527, 533 (Minn. 2017). “[T]o support a
6
downward durational departure, the reason must demonstrate that the defendant’s conduct
was significantly ‘less serious than that typically involved in the commission of the crime
in question.’” Id. at 535 (quoting State v. Leja, 684 N.W.2d 442, 450 (Minn. 2004)).
Here, the district court made several statements in support of its departure. First, it
stated:
I just think this Hernandizing cases, while it’s the only vehicle
the state has to them, is so unfortunate that the Commission on
Sentencing has not given us guidelines for what similar
sentences should be. It’s just absurd to me that counties can
continuously offer probationary sentences and counties can
continuously provide 120-month sentences. Just depending
upon where you commit the crime is largely determinative of
what type of sentence you’re going to experience, and it seems
wrong to me. But that’s what we have.

Next, it recognized Leistiko’s cooperation and good behavior since the offense,
determining that Leistiko was unlikely to reoffend but declining to make a finding that he
was particularly amenable to probation. The district court then stated:
For the most part, I’m going to follow the guidelines with the
understanding that the length of prison time, in my opinion, is
not corresponding to what your crime is, if that makes sense.

Finally, it imposed guidelines sentences for the first three counts, and then durationally
departed for counts 15 and 19, stating:
The court specifically finds that Hernandizing unfairly
exaggerates the criminality of the offense, and therefore the
durational departure for this crime is appropriate.
. . . .
Again, departure to 60 months based on the unfair
exaggeration of the criminality based on the only option that
the court has, which is Hernandizing.

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The district court gave no further reasoning for its departure. It also did not disclose the
reasons for departure in the sentencing order, and no departure report is found in the
record.3
To support a downward durational departure, there must “exist identifiable,
substantial, and compelling circumstances,” Minn. Sent’g Guidelines 2.D.1, that
“demonstrate that the defendant’s conduct was significantly less serious than that typically
involved in the commission of the crime in question.” Rund, 896 N.W.2d at 535 (quotation
omitted). Here, the district court made no findings discussing the seriousness of Leistiko’s
conduct. It failed to identify what specific conduct was less serious than typical or what
circumstances made it less serious. The district court also made no findings comparing
Leistiko’s conduct to that typical of the offense.
Leistiko relies on the district court’s reasoning that the sentence “exaggerates the
criminality of the offense” and argues that this is “simply another way of saying that
sentence is greater than what the conduct deserves.”
4 This argument is unconvincing for
two reasons.

3 The sentencing guidelines and Minnesota Rules of Criminal Procedure require that the
reasons for departure be stated in the sentencing order or recorded in a departure report and
filed with the Sentencing Guidelines Commission. Minn. Sent’g Guidelines 2.D.1.c
(2022); Minn. R. Crim. P. 27.03, subd. 4(C); see also Minn. Stat. § 244.10, subd. 2 (2022)
(requiring “written findings of fact as to the reasons for departure”). However, “failure to
file a departure report is not itself sufficient grounds for reversal.” State v. Stempfley, 900
N.W.2d 412, 417 (Minn. 2017).

4 The state argues that whether multiple sentences “unfairly exaggerate the criminality of
the conduct” can be considered only when the crimes arise from a single behavioral
incident. Neither party disputes that the Leistiko’s offenses did not arise from a single
behavioral incident. But, while unfair exaggeration of the criminality of a defendant’s
8
First, the district court stated that the sentence “unfairly exaggerates the criminality
of the offense ,” not Leistiko’s conduct. This word choice, along with the district court’s
commentary on unfair sentencing disparity among counties, suggests that it departed
because it thought that Hernandizing multiple convictions under the statute prohibiting
child-sexual-abuse materials “unfairly exaggerates” the criminality of that offense in
general.5 In State v. Bakken, the Minnesota Supreme Court recognized the potential harsh
effects of the child-sexual-abuse- materials statute when an offender is convicted of
possessing multiple images. 883 N.W.2d 264, 272 (Minn. 2016). It observed that those
effects may be addressed through “general sentencing discretion,” noting that the district
court in that case exercised its general discretion by sentencing at the bottom of the
presumptive range. Id. But the district court here exceeded its general discretion to impose
a sentence at the bottom of the presumptive range and instead departed durationally. And
a downward durational departure from the guidelines must rely on the seriousness of the
offender’s conduct, not on whether the guid elines generally punish a crime fairly. See
Rund, 896 N.W.2d at 535.

conduct is considered when multiple sentences arise out of a single behavioral incident,
State v. Skipintheday, 717 N.W.2d 423, 426 (Minn. 2006), this does not mean such unfair
exaggeration cannot also be considered in another context. Regardless, the district court’s
reliance on this reasoning is insufficient because it fails to establish why Leistiko’s conduct
was less serious than typical.

5 Leistiko also argues that the district court properly departed because it compared the
sentence to sentences imposed in other counties. But again, the issue is not whether the
sentence is typical of the crime, but rather, whether Leistiko’s conduct was less serious
than typical.
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Second, even if we assume that the district court meant that the sentence here
unfairly punished Leistiko’s conduct, this does not resolve the issue. The district court still
made no specific findings showing why Leistiko’s conduct was less serious than conduct
that is typical of the offense. These findings are required for downward durational
departures, id., and without them, the departures lack the necessary “identifiable,
substantial, and compelling circumstances,” Minn. Sent’g Guidelines 2.D.1.
Leistiko argues that even if the district court’s departure was not justified on the
grounds given by the district court, we should still affirm because departure is supported
by the record. “When the district court gives improper or inadequate reasons for a
downward departure, [the appellate court] may scrutinize the record to determine whether
alternative grounds support the departure.”6 State v. Solberg, 882 N.W.2d 618, 623 (Minn.
2016) (emphasis omitted). Proper justifications for a downward durational departure
include, for example, remorse that relates back to the offense, id. at 626, the lessened
severity of the victim’s injuries, State v. Cox, 343 N.W.2d 641, 644- 45 (Minn. 1984), the
offender’s minor or passive role in the crime, Minn. Sent’g Guidelines 2.D.3.a(2) (2022),
or a victim acting as the first aggressor, Minn. Sent’g Guidelines 2.D.3.a(1) (2022).7 None

6 While this practice is not appropriate for an upward departure given an offender’s
constitutional right to a jury trial on the existence of aggravating factors, see State v. Jones,
745 N.W.2d 845, 851 (Minn. 2008) (citing Blakely v. Washington, 542 U.S. 296 (2004) ),
it is permissible for a downward departure, see Rund, 896 N.W.2d at 534-35.

7 The parties and the district court discussed Leistiko’s particular amenability to probation
at the sentencing hearing in the context of a dispositional departure. But particular
amenability to probation or treatment is an offender-related factor and cannot justify a
downward durational departure. Rund, 896 N.W.2d at 533.
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of these are applicable here. And, upon our independent review of the record, no part of
Leistiko’s conduct justifies a downward durational departure. Count 15 was based on
Leistiko’s possession of a video showing a young child being orally penetrated by a penis,
and count 29 was based on his possession of an image of a four -year-old child being
digitally penetrated by an adult male. Nothing about this conduct indicates that it was less
serious than typical for this offense.
Leistiko identifies his “remorse” as alternative support for the departure. Although
remorse may generally be relevant to a downward dispositional departure, see State v.
Trog, 323 N.W.2d 28, 31 (Minn. 1982), it does not justify a downward durational departure
“unless a defendant can show that his demonstrated remorse is directly related to the
criminal conduct at issue and made that conduct significantly less serious than the typical
conduct underlying the offense of conviction.” Solberg, 882 N.W.2d at 626. “[W]hether a
defendant’s actions express genuine remorse and how much weight to give to that remorse”
are questions for the district court. Id.
Leistiko asserts that “[t]he district court found that [he] was remorseful,” but the
district court made no such finding. Even assuming that the district court did find his
remorse genuine, Leistiko “did not engage in any remorse-driven conduct that lessened the
impact of the crime on the victim or made his crime any less serious.” Solberg, 882 N.W.2d
at 626; see also Rund, 896 N.W.2d at 535. During the PSI and the sentencing hearing,
Leistiko expressed shame and took responsibility for his actions. But nei ther of these
expressions of remorse led Leistiko to take any actions that lessen ed the impact or
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seriousness of his conduct. Our independent review of the record shows that Leistiko’s
remorse, even if genuine, does not justify a downward durational departure.
Neither the district court’s stated reasons nor the facts in the record establish
substantial and compelling circumstances demonstrating that Leistiko’s conduct was
significantly less serious than typical for his offenses. See Rund, 896 N.W.2d at 535.
Therefore, the district court’s downward durational departure is not justified by the law or
the facts and constitutes an abuse of discretion. We reverse and remand Leistiko’s sentence
for imposition of a sentence within the presumptive range for counts 15 and 19 under the
guidelines.
Reversed and remanded.