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Stephen J. Lee, Forum News Service, Published March 17 2013

Victim of brutal sexual assault outraged by short sentence

EAST GRAND FORKS, Minn. – The victim of a brutal sexual assault here last May said she was “shattered” when a Crookston judge sentenced one of her attackers to less than a year in jail.

The “presumptive” minimum sentence for the first-degree criminal sexual conduct to which Jose Soto Jr. pleaded guilty is 12 years in prison under Minnesota guidelines; the maximum is 30 years.

But state District Judge Jeffrey Remick sentenced Soto, 37, to 364 days in jail and 30 years of supervised probation.

With credit for time served since his arrest on the charge May 19, Soto walked out of the jail in Crookston on March 4 within about an hour of his sentencing hearing.

His victim stormed out of the courtroom before the hearing was over.

“I didn’t want to be disrespectful,” she said Friday. “But I was livid and upset, and I had to get out of there. I wanted to say to the judge, ‘What the hell were you thinking?’ ”

“Barb,” not her real name, agreed to be interviewed but asked that her identity not be published.

The other attacker is Ismael Hernandez, 31, of Larimore, N.D. After a four-day trial in January, a Polk County jury deliberated two hours before finding him guilty of the same charge as Soto.

Hernandez is scheduled to be sentenced April 1 by state District Judge Kurt Marben.

Polk County Attorney Greg Widseth, who prosecuted Soto and Hernandez, said he’s studying Soto’s sentencing hearing to decide whether to appeal.

In her mid-20s and a mother of three, Barb was not the only person surprised by the sentence.

East Grand Forks police detective Chris Olson said that in his 17 years in law enforcement, he’s never seen a sentence so poorly fit a crime.

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

Soto’s defense attorney admitted he, too, was surprised by the sentence, although it was in line with his own recommendation.

“Honestly, yes, I was,” said Joel Arnason of Grand Forks, who was appointed to represent Soto.

Arnason and others at the hearing say that Remick mentioned Soto having a 10-year-old son, no history of serious crimes and a report from a Bemidji, Minn., mental health center saying he could get sex offender treatment while out on probation.

But state parole and probation officials found Soto not amenable to probation, Widseth said.

As part of a plea deal struck with Soto on Dec. 4, Widseth recommended no more than the guidelines’ minimum 12 years and, in exchange, Soto pleaded guilty. He entered an Alford guilty plea, admitting no wrongdoing but acknowledging that a jury likely would convict him on the evidence. Soto also claimed that intoxication affected his actions.

“I was very disappointed,” Widseth said of the sentence that came down. “I think it sends the wrong message, when you engage in forcible rape like that, that it isn’t treated as serious an offense as it is.”

A message through the Polk County court administrator’s office offering Remick an opportunity to comment was not answered.

Such departures from sentencing guidelines by judges are not uncommon, although the gap between the guidelines’ minimum and this sentence is unusual, say people familiar with the court system.

Remick must file a report with the Minnesota Sentencing Guidelines Commission on why he departed from the guidelines. As of Friday, the commission had not received Remick’s report.

The sexual assault against Barb was so violent that Widseth originally planned to seek more than 12 years for Soto, the prosecutor said in his charging document. Soto and Hernandez “engaged in multiple forms of nonconsensual sexual penetration of the victim,” he said.

It happened early on May 19, after Barb got a ride with Soto, Hernandez and a third man, Ross Holtman, from a Grand Forks party to what she thought would be her friend’s place. She had never met them before, and knew her attackers only as “Joe,” Soto’s nickname, and “Smiley,” as Hernandez is called.

Holtman drove them all in his car to his apartment in East Grand Forks and soon fell asleep, drunk, he said later.

Soto and Hernandez forced Barb into a bedroom and sexually assaulted her in several ways, according to the court complaint. Later, the men drove her home.

Within a few hours, East Grand Forks police had arrested Soto, who corroborated Barb’s story in large part. At first, he said the sexual acts were consensual, but when asked about the injuries to her, he admitted he forced her. Soto said he was very drunk, which may have “clouded” his judgment, and “he may have been aggressive with” her, he told police.

Hernandez was arrested several days later and never cooperated much with the investigation, Olson said.