Sentence appealed by chief attorney

Robert Koch

Convicted gang member Angel Hernandez might not attend the University after all if the Minnesota Court of Appeals overrules a district judge’s sentencing order.
Hernandez was convicted Jan. 26 on several counts, including making terroristic threats for the benefit of a gang, following a February 1999 altercation with a store manager and security guard outside a Willmar shopping mall.
Chief Prosecutor Connie Crowell is appealing District Court Judge Donald Spilseth’s sentence, which spared Hernandez the remainder of his 30-month sentence if — among other things — he were to enroll himself in an institution offering post-secondary education.
“This was not the case to apply that kind of sentence,” Crowell said. “It isn’t justified under the law; it isn’t justified by the facts.”
Spilseth, in a memorandum accompanying the April 11 sentence, explained the case had “unique potential in the area of rehabilitation.” In legalese, the judge found Hernandez “amenable to probation.”
“(Hernandez) is one of the very few felons which this court has seen that is a high school graduate with ability to pursue and complete a post-secondary education,” read the memorandum.
Four months later, Spilseth’s sentence leaves legal experts reviewing Minnesota law and recalling other precedent-setting cases.
The district court, argues Crowell, abused its discretion by deviating from sentencing guidelines.
According to Minnesota sentencing guidelines, judges may “impose any sentence authorized by law” when a case involves “substantial and compelling circumstances.”
Acceptable reasons for departure from guidelines include cases where the victim was an aggressor, or where the offender played a minor or passive role or otherwise lacked “substantial capacity for judgment.” Unacceptable reasons include race, sex, employment or social factors.
“Nowhere in the judge’s order did he articulate those substantial and compelling circumstances. It is simply because (Hernandez) is — in the judge’s opinion — bright with potential,” Crowell said. “There are a lot of folks sitting in prison who are very bright.”
Hernandez’ public defender could not be reached for comment. Hernandez and members of Sigma Lambda Beta — the University fraternity supporting him — have declined interviews.
University law professor Robert Levy said he objects to the media attention given to the case and believes Hernandez deserves anonymity should he attend the University. But he also said he disagrees with Crowell.
In the past, the Minnesota Supreme Court has interpreted sentencing guidelines, Levy added.
In the 1982 case State v. Trog, the Supreme Court upheld a district court’s stay of sentence for a convicted burglar based on the defendant’s history as an “outstanding citizen.” The court deemed Trog amenable to probation because of his young age, remorse, cooperation with officials and lack of a criminal history.
But Crowell, in a brief to the appellate court, cited the Trog case as a counterpoint. Unlike Trog, she argued, Hernandez has a criminal record, has repeatedly violated probation conditions and has “shown himself to be unamenable to probation.”
State Public Defender John Stuart said the case involves a unique set of laws, where each side holds the right to appeal.
“(The sentence) is legal, but (Spilseth) has to state adequate reasons,” he said. “I hope in this case that the reasons turn out to be adequate so that this young man gets a chance to go to college.”
The appellate court will re-examine Spilseth’s sentencing order and decide whether substantial and compelling circumstances indeed existed. A decision may not come until next year.
The University Office of Admissions, in accordance with student confidentiality guidelines, will not disclose whether Hernandez has been admitted to the University.

Robert Koch covers police and courts and welcomes comments at [email protected]