State of Minnesota v. Irineo Ricardo-Cosme

This opinion is nonprecedential except as provided by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
A24-1794

State of Minnesota,
Respondent,

vs.

Irineo Ricardo-Cosme,
Appellant.

Filed January 26, 2026
Affirmed
Wheelock, Judge

Washington County District Court
File No. 82-CR-23-2920

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

Kevin M. Magnuson, Washington County Attorney, Andrew T. Jackola, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Wheelock, Judge; and

Halbrooks, Judge. *

*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
 NONPRECEDENTIAL OPINION

WHEELOCK, Judge

Appellant challenges the district court’s denial of his motion for a downward

dispositional departure, arguing that the district court committed reversible error by failing

to consider factors for and against a probationary sentence. We affirm.

FACTS

Respondent State of Minnesota charged appellant Irineo Ricardo-Cosme 1 with

first-degree criminal sexual conduct for engaging in sexual contact or penetration with a

person under the age of 14 while more than 36 months older than that person in violation

of Minn. Stat. § 609.342, subd. 1a(e) (2022). The complaint alleged that Cosme engaged

in criminal sexual contact with his 11-year-old niece (Child A). We set forth the facts as

alleged in the complaint.

In August 2023, law enforcement responded to a report that Child A had been

touched on her vagina by Cosme, her uncle. When officers spoke to Child A about the

incident, they noticed she was visibly shaken, crying, and upset. Child A’s mother asked

for an ambulance for Child A, which arrived shortly thereafter.

Child A told one of the officers that, earlier that day while her mother was at work,

she was home with Cosme, who lives with her family. Child A said that Cosme pulled her

by her arm into his bedroom and had her lie down on his bed while he lay next to her.

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Appellant’s name is misrepresented in the record. The name he uses in his brief to this
court is Ricardo Cosme Irineo. We refer to him as Cosme throughout this opinion.

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While Child A was lying on her back, Cosme was lying on his side facing her and told her

to be quiet.

Child A said that Cosme began touching her on her chest and putting his hand under

her pants and underwear and touched her vagina. Child A told officers Cosme used his

finger and “slid it inside her body” for what seemed like “a long time.” Cosme told Child A

not to tell anyone about what happened and that they were just playing around. When

Cosme stopped, he told Child A not to tell her mother. Cosme then left the house. When

Child A’s mother returned, Child A immediately told her what happened, and Child A’s

mother called law enforcement. After speaking to officers, Child A was taken by

ambulance to a hospital. When Cosme returned to the home, he was arrested.

At the plea hearing, Cosme admitted to the facts alleged in the complaint and

pleaded guilty to first-degree criminal sexual conduct. Cosme also told the district court

that he would be arguing for dispositional and durational departures at sentencing. The

district court ordered a presentence investigation (PSI) and a psychosexual evaluation.

Evaluators found that Cosme was at high risk for future sexual misconduct and that he

accepted responsibility for the offense but “nevertheless lacks insight into his own actions.”

At the sentencing hearing, counsel for the state opposed a downward departure,

stating that the offense was “far more intrusive” than other first-degree

criminal-sexual-conduct offenses because Cosme was trusted in the family home and

returned that trust by assaulting Child A. Counsel for the state also noted that the PSI

report recommended a 144-month sentence, that Cosme lacked insight into his actions, and

that he was found to be at high risk to reoffend.

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 Cosme’s counsel argued that Cosme was particularly amenable to probation because

he took responsibility for his actions and was extremely remorseful. Cosme’s counsel also

noted that, even though both psychosexual evaluations found Cosme at a high risk to

reoffend, the second evaluation showed he was motivated to correct his behavior. Cosme

then addressed the district court and expressed remorse for his actions.

In considering the requests for departure, the district court stated that it had reviewed

the presentence investigation, both psychosexual evaluations, the victim-impact statement,

and Cosme’s motion. It then observed:

Because of the relationship of the parties as well, [Cosme]
violated the trust the victim and her mother had in him in
inviting him into their home and trusting him to be in the
presence of her young children. And while the State didn’t file
a motion for upward departure based on particular
vulnerability or violation of position of trust or violating the
victim’s zone of privacy, all of those things are applicable in
this situation. And on some level, they counter any potential
mitigating factors that [Cosme] has presented to the Court this
morning.

The district court determined that neither type of departure was warranted given the

circumstances and facts in the record because it “[did] not find substantial and compelling

circumstances to support a departure.” The district court sentenced Cosme to a

presumptive sentence of 144 months’ imprisonment.

Cosme appeals.

DECISION

Cosme challenges the denial of his motion for a dispositional departure. Cosme

argues that the district court failed to consider circumstances for and against departure

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before imposing the presumptive sentence and failed to grant him a departure when the

facts in the record “overwhelmingly supported” one.

A district court has great discretion in sentencing, and we review the district court’s

sentencing decisions for an abuse of that discretion. State v. Soto, 855 N.W.2d 303, 307-08

(Minn. 2014). Only in a “rare case” will a reviewing court reverse a district court’s

imposition of the presumptive sentence. State v. Bertsch, 707 N.W.2d 660, 668 (Minn.

2006); see also State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010) (stating that we will

rarely disturb a district court’s decision to impose a sentence within the presumptive

guidelines range), rev. denied (Minn. July 20, 2010).

The Minnesota Sentencing Guidelines establish the presumptive disposition and

duration of a sentence depending on the seriousness of the offense and the defendant’s

criminal history. Minn. Sent’g Guidelines 1.A, 2.C.1 (Supp. 2023). The district court has

discretion to depart from the presumptive disposition or duration if “identifiable,

substantial, and compelling circumstances” justify a departure. Minn. Sent’g

Guidelines 2.D.1 (Supp. 2023). But departures “are discouraged and are intended to apply

to a small number of cases” because “[t]he sentencing guidelines seek to maintain

uniformity, proportionality, rationality, and predictability in sentencing of felony crimes.”

State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (quotation omitted).

A district court may grant a defendant a durational departure or a dispositional

departure. Id. A downward durational departure is a sentence that is imposed for a shorter

period of time than that indicated by the presumptive range established in the sentencing

guidelines and is granted based on an assessment of the seriousness of the offense. Id. A

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downward dispositional departure occurs when a district court stays the execution or

imposition of a sentence and is generally granted based on an assessment of the

characteristics of the offender—specifically, whether a defendant is particularly amenable

to probation. Id. However, a district court may consider “both offender- and

offense-related factors for a downward dispositional departure.” State v. Walker,

913 N.W.2d 463, 468 (Minn. App. 2018). Factors that may indicate a particular

amenability to probation include the defendant’s age, remorse, prior record, cooperation,

attitude while in court, and support of friends and family. State v. Trog, 323 N.W.2d 28,

31 (Minn. 1982) (Trog factors).

A defendant’s mere amenability to probation is insufficient to justify a downward

dispositional departure; a court must find the defendant particularly amenable. Soto,

855 N.W.2d at 308. “By requiring a defendant to be particularly amenable to

probation . . . we ensure that the defendant’s amenability to probation distinguishes the

defendant from most others and truly presents the substantial and compelling

circumstances that are necessary to justify a departure.” Id. at 309 (quotation omitted).

And even if a defendant is particularly amenable to probation, a district court is not required

to grant a downward dispositional departure. State v. Olson, 765 N.W.2d 662, 664-65

(Minn. App. 2009). “[T]he mere fact that a mitigating factor is present in a particular case

does not obligate the [district] court to place [a] defendant on probation.” State v. Pegel,

795 N.W.2d 251, 253 (Minn. App. 2011) (quotation omitted). Even when there are factors

that weigh in favor of a departure, the district court does not abuse its discretion by denying

a departure. See State v. Kindem, 313 N.W.2d 6, 8 (Minn. 1981) (stating that, “while there

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may have been arguments for departing downward,” the decision to depart is

discretionary).

Cosme argues that, because the record overwhelmingly supported a finding that he

would be particularly amenable to probation, his sentence should be reversed. Cosme

asserts that multiple factors demonstrate he is particularly amenable to probation, including

his age, criminal history, remorse, acceptance of reasonability, cooperation in the

prosecution and attitude in court, amenability to treatment in the community, and

motivation to change. Cosme cites the PSI report and psychosexual evaluation as evidence

of his acceptance of responsibility.

However, the district court properly considered the facts in the record, the PSI

report, the psychosexual evaluations, the victim-impact statement, and Cosme’s motion

and determined that Cosme was not particularly amenable to probation. A “reviewing

court may not interfere with the sentencing court’s exercise of discretion as long as the

record shows the sentencing court carefully evaluated all the testimony and information

presented before making a determination.” State v. Van Ruler, 378 N.W.2d 77, 80-81

(Minn. App. 1985).

Cosme seems to confuse whether a district court abused its discretion in making a

decision about a departure request with a decision declining to exercise its discretion to

depart from a presumptive sentence. Though he cites the proper consideration for a district

court—particular amenability to probation—the existence of any Trog factor does not

require a district court to find particular amenability to probation; remorse and

responsibility do not automatically qualify a defendant for a dispositional departure. See

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Olson, 765 N.W.2d at 665 (holding that the district court did not abuse its discretion in

granting a presumptive sentence after it reviewed Olson’s arguments and considered his

remorse, his lack of criminal history, and his codefendant’s lesser sentence). Here, the

district court properly exercised its discretion in determining that the mitigating factors

Cosme presented did not amount to identifiable, substantial, and compelling circumstances

that would justify a dispositional departure and did not demonstrate that he was particularly

amenable to probation.

Cosme next argues that “it is not enough to simply review [the record] or to consider

only factors against and none of the factors for a departure” and cites various opinions in

support of this proposition. 2 Only two of the opinions he cites address dispositional

departures, however, and they are both distinguishable.

In Curtiss, the district court denied Curtiss’s motion for a downward durational

departure, finding there were “no legitimate reasons for a departure” and sentencing Curtiss

to 33 months for burglary. 353 N.W.2d at 263. But we determined that there were, in fact,

“legitimate reasons” in the record to warrant a downward departure as well as factors

“supporting non-departure.” Id. We remanded in Curtiss because the district court erred

by ignoring reasons for departure. Id. at 264.

In Mendoza, we remanded the district court’s denial of a dispositional departure

because the district court improperly considered Mendoza’s immigration status during

2
Cosme cites the following opinions: State v. Warren, 592 N.W.2d 440, 452 (Minn. 1999);
State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002), rev. denied (Minn. Apr. 16,
2002); State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984).

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sentencing. 638 N.W.2d at 486. We held that, under such circumstances, the sentence

“may not be appropriate because it cannot be known with certainty whether deportation

would have occurred.” Id. at 484.

The district court here did not ignore the factors for or against departure, like in

Curtiss, and did not base its decision on improper information, like in Mendoza. The

district court properly considered the record and determined that Cosme was not

particularly amenable to probation. And while a district court “is required to give reasons

for departure, an explanation is not required when the court considers reasons for departure

but elects to impose the presumptive sentence.” Van Ruler, 378 N.W.2d at 80; see also

Pegel, 795 N.W.2d at 254 (rejecting Pegel’s argument that the district court abused its

discretion by failing to discuss each of the Trog factors and observing that “there is no

requirement that the district court must do so”).

At sentencing, the district court noted specifically that it “reviewed . . . the defense

motion and memorandum for a departure.” While Cosme’s motion included arguments for

both durational and dispositional departures, it focused primarily on a dispositional

departure, asserting that Cosme demonstrated remorse and responsibility and was therefore

particularly amenable to probation. The district court acknowledged on the record that it

reviewed Cosme’s arguments for a downward dispositional departure but found the

presumptive sentence was warranted. Although it was not required to provide any

explanation because it imposed a presumptive sentence, see Van Ruler, 378 N.W.2d at 80,

the district court explained its reasoning.

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 The district court pointed to the PSI report and psychosexual evaluations, in which

an evaluator determined that Cosme is at high risk to reoffend. The district court also

explained that Cosme’s violation of Child A’s and her mother’s trust, Child A’s particular

vulnerability, and the fact that the offense took place in Child A’s zone of privacy “counter

any potential mitigating factors that [Cosme] has presented to the Court.” See Solberg,

882 N.W.2d at 623 (stating that offense-related factors can provide basis for denying a

dispositional departure). It is clear that the district court considered the information and

arguments presented by both parties during the proceedings. Therefore, based on our

review of the record, we cannot say that the district court abused its discretion by denying

the dispositional departure motion.

The district court also referenced the Minnesota Sentencing Guidelines to support

its determination: “The Court does not find substantial and compelling circumstances to

support a departure under Minnesota Sentencing Guidelines Section 2.D.3.” That section

provides “factors that may be used as reasons for departure,” including that “[t]he offender

is particularly amenable to probation. This factor may, but need not, be supported by the

fact that the offender is particularly amenable to a relevant program of individualized

treatment in a probationary setting.” Minn. Sent’g Guidelines 2.D.3.a.7 (Supp. 2023).

After this explanation, the district court noted that, based upon the comments it

made, it “[did] not find the defendant’s offense is less serious than the typical offense and

therefore a durational departure is also not appropriate in this instance.” The use of the

word “also” shows that the district court was considering a dispositional departure in

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addition to a durational departure. Thus, the district court found that neither a durational

departure nor a dispositional departure was appropriate in this case.

Because the district court considered the record and arguments before it when

ordering a presumptive sentence and was not required to explain its reasoning for imposing

such a sentence, the district court did not abuse its discretion in denying Cosme’s motion

for a downward dispositional departure.

Affirmed.

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