                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0769

                                   State of Minnesota,
                                        Appellant,

                                           vs.

                                Matthew Jonathan Hardy,
                                      Respondent.

                                Filed February 2, 2015
                                Reversed and remanded
                                  Rodenberg, Judge

                              Dakota County District Court
                              File No. 19HA-CR-13-1448

Lori Swanson, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Heather D. Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for appellant)

Lynne Torgerson, Minneapolis, Minnesota (for respondent)

         Considered and decided by Kirk, Presiding Judge; Ross, Judge; and Rodenberg,

Judge.

                         UNPUBLISHED OPINION

RODENBERG, Judge

         Appellant State of Minnesota appeals from the district court’s sentence after

respondent Matthew Jonathan Hardy’s conviction for first-degree criminal sexual

conduct. Because the findings underlying the district court’s dispositional departure from
the Minnesota Sentencing Guidelines are unclear, confusing, internally inconsistent and

unsupported by the record, we reverse the sentence and remand for resentencing.

                                         FACTS

       From October 2011 through May 2012, respondent shared a home with his then-

fiancée and a two-year-old child. They provided occasional respite care approximately

two weekends a month for A.W., a 14-year-old girl. In his guilty plea to first-degree

criminal sexual conduct, respondent agreed that, during this time, he sexually penetrated

A.W. on multiple occasions. During this time period, respondent was on probation

resulting from a second-degree assault conviction in 2009. The district court in that 2009

case had granted respondent a downward dispositional departure from a presumptive

executed sentence, stayed execution of that sentence, and placed respondent on probation

for seven years.

       A.W. reported that respondent had sexual intercourse with her the first night she

stayed at respondent’s home, in the bedroom of the two-year-old child. A.W. estimated

that respondent penetrated her vaginally, anally or orally on 50 occasions. Respondent’s

version was that A.W. “came on” to him, that he was unable to resist her advances, that

she would not take “no” for an answer, and that he had vaginal, anal, and oral intercourse

with A.W. “four or five” times.

       Respondent was charged with multiple counts of criminal sexual conduct and

pleaded guilty to one count of first-degree criminal sexual conduct (victim under the age

of 16 and actor in a position of authority). The district court scheduled sentencing for

five months after the plea. The district court stated that it was “going to delay sentencing


                                             2
for treatment purposes” and ordered that respondent enter a treatment program within one

month.   Respondent attended two treatment programs.          He first attended inpatient

treatment at Alpha, but he was terminated from the program because he made threats of

physical violence against a staff member. Later, respondent attended and completed a

privately funded treatment program in Arizona “regarding sexual addiction and

offending,” among other disorders.1

      Respondent’s presumptive sentence for the present offense under the Minnesota

Sentencing Guidelines was commitment to prison for 168 months. The district court’s

findings at and after sentencing were, to be generous, confusing and inconsistent. During

the sentencing hearing, the district court stated, “I’m going to mark ‘accepted

responsibility in a minimalistic way,’” and “I’m going to mark ‘amenable to probation’

simply because I think you’ve demonstrated that you can follow rules if you’re willing to

do so.” It also stated that respondent had not shown remorse and had not accepted

responsibility, but then completed a departure report after sentencing indicating that

respondent “shows remorse/accepts responsibility.” The district court expressed a lack of

confidence in respondent’s motivations and his sincerity, but it later noted on the




1
  The prosecutor stated at sentencing that “probation has indicated clearly to me that this
would never have been a program that they would approve and that they would consider,
in any way, satisfy sex-offender treatment or programming.” The parties, and the district
court, did not characterize this treatment as sex-offender treatment. At sentencing,
appellant indicated that probation did not “consider that six weeks [in Arizona] to be a
completed program.” The district court responded, “I didn’t either.” Respondent’s brief
characterizes the treatment program in Arizona as a “6 week inpatient/residential sexual
addiction treatment program.”

                                            3
departure report that respondent was “amenable to probation.”             At the end of the

sentencing hearing, the district court stated:

              I mean, I got to be honest. I really don't trust [respondent]. I
              wouldn't be shocked if I get a call from [the prosecutor] a
              year from now that he’s done something stupid, and we're
              saying goodbye to him.

                     I hope I’m wrong, you know. I hope I made the right
              decision, because it was difficult because [the prosecutor’s]
              arguments are compelling. They’re very good. I just wanted
              to give him an opportunity to be successful with his family.

The state appeals the district court’s sentence.

                                      DECISION

       Appellant argues that the district court erred in granting respondent’s motion for a

dispositional departure. We review a district court’s decision to dispositionally depart for

an abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). This

standard, “while deferential, is not a limitless grant of power to the [district] court.” State

v. Soto, 855 N.W.2d 303, 312 (Minn. 2014) (quotation omitted).

       A departure from the sentencing guidelines is permissible only when there are

substantial and compelling reasons supporting departure. Minn. Sent. Guidelines 2.D

(2011). Substantial and compelling circumstances are those that make a case atypical.

Taylor v. State, 670 N.W.2d 584, 587 (Minn. 2003).

       At the time of respondent’s sentencing, the Minnesota Supreme Court was

considering Soto, an appeal from a district court’s downward dispositional departure for a

defendant convicted of first-degree criminal sexual conduct. In Soto, the supreme court

concluded that the district court abused its discretion in granting a dispositional departure


                                                 4
to a defendant “[g]iven the brutality of the crime and the absence in the record of any

substantial and compelling circumstances that distinguish Soto from other defendants.”

855 N.W.2d at 313 (quotation omitted). The supreme court concluded that, even though

there were “a few” factors that “might suggest that Soto could be amenable to probation,”

they provided “very little support for the further conclusion that Soto had any particular

amenability to probation relative to other defendants.” Id. at 314. The supreme court

clarified that “we have never said that merely being amenable to probation—as opposed

to being particularly amenable to probation—can justify staying a presumptively

executed sentence.” Id. at 308.

      The district court’s findings in this case concerning appellant’s amenability to

probation are plainly self-contradictory and appear to be clearly erroneous. The district

court expressed grave misgivings about respondent’s sincerity and trustworthiness. At

the time of the present offense, respondent was already on probation for felony assault

with a firearm, having benefitted from an earlier dispositional departure. Respondent

entered Alpha, a program for sex offenders, and he was terminated for threatening staff at

that facility. He entered a private-pay facility in Arizona that was not a sex-offender

treatment program and that the district court found did not amount to a completed

program in any event.2




2
  Although it is not of dispositive importance, the Arizona facility was located and paid
for by respondent or his family and was not approved in advance by the district court or
probation as a sex-offender treatment program. It was not. It was a program for sexual
addiction.

                                            5
       Soto holds that a downward dispositional departure requires a district court to find

that the defendant is particularly amenable to probation and that his “amenability to

probation distinguishes [him] from most others.”       Id. at 309.    Only a defendant’s

“particular amenability to individualized treatment in a probationary setting” will support

a dispositional departure. Id. at 308 (quoting State v. Trog, 323 N.W.2d 28, 31 (Minn.

1982)).

       Our careful review of the record compels us to conclude that the district court’s

findings were inadequate under Soto concerning whether respondent is particularly

amenable to treatment in a probationary setting. Respondent sexually offended against

A.W., a 14-year-old child entrusted to him for respite care, over an extended period of

time, subjecting her to multiple forms of penetration, all while on probation under a

downward dispositional departure for an earlier offense that called for a presumptive

prison commitment under the sentencing guidelines. Respondent blamed A.W. for his

crime. The district court observed that he demonstrated minimal remorse for his actions.

Respondent was terminated from the only sex-offender treatment facility he entered after

his crime, and his only attempt at treatment before sentencing was at a privately funded

facility that does not provide sex-offender treatment.3 The district court does not appear

to have considered the significance of appellant’s probationary status at the time


3
  We observe that, by continuing respondent’s sentencing several times to allow
respondent to locate a program that would accept him, the district court provided him
opportunities not available to defendants lacking the personal financial resources to pay
for such programs. This is contrary to the purpose of the sentencing guidelines for
consistent treatment without regard to economic status. Minn. Sent. Guidelines I.A.1
(2012).

                                            6
appellant engaged in this criminal behavior, or that the earlier probationary sentence was

also a downward dispositional departure under the sentencing guidelines. The district

court’s statements on the record at sentencing are inconsistent with the departure report

concerning the sentence and are inadequate to support a conclusion that respondent, as

required by Soto, has any “particular amenability to probation relative to other

defendants.” Id. at 312. We therefore reverse the sentence and remand for sentencing

consistent with the requirements of Soto.

      Reversed and remanded.




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