This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Richard Jeffrey Rosillo,


Filed August 25, 1998

Affirmed in Part and Remanded

Norton, Judge*

Faribault County District Court

File No. K59616

Hubert H. Humphrey III, Attorney General, Alison E. Colton, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and

Joel R. Welder, Faribault County Attorney, P.O. Box 5, Blue Earth, MN 56013 (for respondent)

J. Anthony Torres, Anita J. Jehl, Torres Law Offices, Inc., 1401 West 76th St., Suite 400, Richfield, MN 55423 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Norton, Judge.



Appellant argues that the trial court erred in calculating his criminal history score during sentencing and abused its discretion by denying his motion to withdraw his guilty plea. We affirm in part and remand for resentencing.


Appellant Richard Jeff Rosillo pleaded guilty to four counts of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (1996), for engaging in sexual intercourse with A.D., a minor female who had been his girlfriend. The trial court found that appellant's convictions arose from a single behavioral incident and sentenced appellant, who had no criminal history, to an 18-month stayed prison term. See Minn. Stat. § 609.035, subd. 1 (1996) (prohibiting multiple sentences for multiple offenses committed as part of single behavioral incident).

The state appealed, arguing that appellant's conduct comprised separate behavioral incidents and that he should have been sentenced under State v. Hernandez, 311 N.W.2d 478 (Minn. 1981). We concluded that that "Rosillo's four convictions for criminal sexual conduct [are] separately punishable" and remanded to the trial court "to exercise its discretion in resentencing." State v. Rosillo, No. C3-97-650, unpub. op. at 4-5 (Minn. App. Aug. 5, 1997), review denied (Minn. Sept. 18, 1997).

The trial court, using the Hernandez method to calculate appellant's criminal history score, resentenced appellant to the presumptive prison term for each offense. Appellant received concurrent stayed prison terms of 18 months based on a criminal history score of zero for the first count, 23 months based on a score of one for the second count, 27 months based on a score of two for the third count, and an executed term of 30 months based on a score of three for the fourth count. The trial court denied appellant's subsequent motion to withdraw his guilty plea, and this appeal followed.



Appellant challenges the use of the Hernandez method to calculate his criminal history score during sentencing. Under Hernandez, a trial court sentencing a convicted defendant on the same day for multiple convictions based on multiple offenses that were not part of "a single behavioral incident or course of conduct" can increase the defendant's criminal history score incrementally as each successive sentence is imposed. 311 N.W.2d at 481.

Use of the Hernandez method is within the trial court's discretion and is not mandatory. See State v. Pittel, 518 N.W.2d 606, 608 (Minn. 1994) (trial court "free to use Hernandez method"); State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985) (court has discretion to use Hernandez method). But during the resentencing hearing, the trial court stated:

The next issue is whether or not these four separate [offenses] should be Hernandized. It appears in reviewing the Hernandez case and numerous cases that followed the Hernandez case that method is used when there is one sentencing and there is more than one offense. Those offenses are considered to be distinct and different offenses. The Appellate Court has told us that these four offenses are considered distinct and separate offenses. This Court is making the determination that if they're not one behavioral incident then it appears to this Court that there is no option but to Hernandize.

(Emphasis added.)

Only in a "rare case" will we reverse a trial court's imposition of a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). But here, it appears that the trial court failed to appreciate the breadth of its discretion in sentencing. Our previous opinion stated only that "Rosillo's four convictions for criminal sexual conduct [are] separately punishable." Rosillo, unpub. op. at 4. We gave the trial court an opportunity to exercise its discretion by choosing an appropriate sentence for appellant in light of the discrete nature of his offenses. We did not mean to imply that the trial court was subsequently obligated to resentence appellant in any particular manner or in accord with Hernandez.

Certainly, the trial court could have exercised its discretion in sentencing by: (1) sentencing appellant to an executed term on one count and staying imposition or execution of sentence on the remaining counts; (2) staying imposition on all counts; (3) consolidating all four counts into one and sentencing on that single count; or (4) exercising leniency by departing from the sentencing guidelines for those counts on which it chose to impose a sentence.

Because the trial court failed to appreciate the breadth of its discretion in sentencing, we must again remand this matter for resentencing. The trial court may, within its broad discretion, decide to apply or disregard the Hernandez method of calculating appellant's criminal history score during sentencing.


A defendant may withdraw a plea of guilty after sentencing on proof that "withdrawal is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. "Manifest injustice occurs if a guilty plea is not accurate, voluntary, and intelligent." Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997). The trial court's decision to grant or deny a motion to withdraw a guilty plea will be reversed on appeal "only in the rare case in which the appellate court can fairly conclude that the trial court abused its discretion." Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

Appellant decided to plead guilty in response to the trial court's "inclinations" regarding sentencing rather than a firm sentencing commitment from the court, but this does not mean that his decision was not accurate, voluntary, or intelligent. No manifest injustice requires withdrawal of appellant's guilty plea. The trial court did not abuse its discretion by denying appellant's motion.

Affirmed in part and remanded.

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