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Published December 16, 2013, 08:14 PM

Controversial probation reversed in Jose Soto Jr. case

A Minnesota appeals court has reversed a controversial sentence handed down in March by a Crookston judge that allowed an East Grand Forks man sentenced to 12 years in prison for a violent sexual assault last year on a Grand Forks woman to walk out of jail on probation.

By: Stephen J. Lee, Grand Forks Herald

A Minnesota appeals court has reversed a controversial sentence handed down in March by a Crookston judge that allowed an East Grand Forks man sentenced to 12 years in prison for a violent sexual assault last year on a Grand Forks woman to walk out of jail on probation.

In an opinion filed Monday, a three-judge panel in St. Paul directed state District Judge Jeffrey Remick to reverse the probation and execute the 12-year sentence of Jose Soto Jr.

Remick had imposed the 12-year sentence but stayed it during 30 years of probation for Soto at a sentencing hearing in March.

The ruling, remanding the case back to Remick, said his reasons for making a “downward departure” from state sentencing guidelines in Soto’s case “are improper or inadequate and there is insufficient evidence of record to justify the departure.”

Judges have wide discretion in sentencing in Minnesota, but Remick “abused” that discretion, the appeals panel ruled.

Polk County Attorney Greg Widseth prosecuted Soto and appealed Remick’s sentence.

But Widseth declined comment Monday, saying it’s still an open case and that Soto has 30 days to ask for a review of the appeals court ruling.

Unless his review is successful, Soto would then be sent to prison to serve a similar sentence that his co-defendant received only weeks after he walked. Under state rules, inmates usually serve about two-thirds of a prison sentence behind bars and the remainder on probation.

Guilty of assault

As the appeals judges described the case, Soto and Ismael Hernandez, 31, met the victim at a bonfire in Grand Forks in May 2012. The three rode with another man to his East Grand Forks apartment where Soto and Hernandez beat her and sexually assaulted her. Soto held her down while Hernandez assaulted her, then Soto sexually assaulted her several times. The victim was hit several times and injured in other ways. She had a friend take her to the hospital later that day where her injuries were photographed and police were called.

Both men were charged with first-degree criminal sexual conduct.

Hernandez went to trial in January. A jury found him guilty.

Soto agreed to a deal with prosecutors, pleading guilty in an Alford plea in which he did not admit wrongdoing but agreed there was enough evidence for a jury to find him guilty. He also used the “Norgaard” provision, saying he couldn’t remember much because he was so impaired from alcohol.

Widseth, who was planning to seek an upward departure from sentencing guidelines if Soto’s case went to trial, agreed in the plea deal to not ask for more than 12 years, which is the “presumptive” sentence under state guidelines.

At sentencing in March, Remick said Soto deserved a stay of his sentence because he had a 10-year-old child, family support and was amenable to, or likely to cooperate successfully with, probation.

Soto, who had been in jail since his arrest early last year, walked out the same day he was sentenced in March.

Hernandez, sentenced only days later on the same charge by state District Judge Kurt Marben in Crookston, received a 12-year sentence and was soon shipped to a state prison.

‘Heinous’ crime

The two men’s victim, a mother of three in her 20s who asked that her identity not be published, spoke at the men’s sentencing hearings.

She told the Herald last year she was outraged by Soto’s sentence.

“I have scars from bite marks, and carpet burns. I have scars emotionally and physically from that night and he’s got a dent in his criminal record from that night. It’s not fair.”

In an unusual move, the East Grand Forks Police investigator who worked the case spoke out publicly against Soto’s sentence, too, saying it was the worst incarceration time for a crime he had seen in 17 years on the job.

“He served nine months and 17 days and walked out of jail,” Chris Olson told the Herald last spring. “It was a pretty brutal assault. She was bruised from head to toe.”

Stephanie Pry, a victim advocate in Polk County, told the Herald last spring it was an uncommonly brutal crime.

“In the typical sexual assault, you don’t have this kind of injuries,” Pry said. “This sexual assault was pretty heinous.”

News of Soto’s sentence sent a buzz among victim advocates across the state, Pry said.

“When the sentence came down … I just sat there and thought to myself, ‘Oh, my God, I can’t believe that,’” Pry said. “We were all blown away, we were dumbfounded.”

The victim told the Herald hearing Soto’s sentence in court in March felt like “a slap in the face. This judge just sent a really bad message. Now a lot of victims won’t even come forward. Why would they want to come forward, just to see their rapists get probation?”

Even Soto’s defense attorney, Joel Arnason, said in March he was surprised at Remick’s sentence.

Judge Remick himself said Soto’s alleged “amenability to probation,” was the “sole reason,” he gave him probation, rather than prison, relying on a report from a counseling center in Bemidji, which interviewed Soto, according to the appeals panel.

Disputed findings

Despite his Alford plea, Soto’s “continued denial of criminal responsibility through sentencing, appears to us to be inconsistent with a finding that he is amenable to probation,” the appeals panel wrote. “We think it’s axiomatic that the interests of justice require that a convicted violent sex offender cannot be placed on probation unless and until the offender accepts responsibility for his crime. Here, (Soto’s) acceptance of responsibility is absent.”

Soto’s age, 37 when he was sentenced in March, did not afford him the slack a youthful offender might earn, as Remick implied, the appeals court said.

A judge can lower a sentence if an offense was “the product of youthful immaturity, rather than a criminal disposition,” the panel said.

But “a violent and forcible rape by two men is simply not a function of youth, immaturity or lack of discretion that comes with age.”

As far as Soto’s family support, that appeared to be mostly enabling him and not helping him see “a need to change, but in denying his responsibility for the violent crime to which he has pleaded guilty.”

Remick also incorrectly counted the fact that Soto has a 10-year-old son — who lives with the boy’s mother, not with Soto — as a factor in granting him a downward departure from state sentencing guidelines, the appeals panel said.

On Monday, Arnason, no longer involved in the case, said he expects the state’s public defender’s office, which was a party to the appeal, will appeal the appeal court’s decision to the state supreme court.

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