Stephen J. Lee, Forum News Service, Published April 01 2013
Larimore man gets 12 years for 'heinous' sexual assault
Hernandez, 31 and of Larimore, N.D., maintained his innocence, despite a jury verdict rendered within two hours in January after a four-day trial, and said the whole experience was “surreal.” He has been in jail in Crookston since his arrest last summer.
His co-defendant, Jose Soto Jr., 37, of East Grand Forks, pleaded guilty to a similar charge months ago and was sentenced a month ago and released from jail.
The victim, a woman in her mid-20s whom the Grand Forks Herald is not identifying, read a statement to the court today, saying “nothing for me will ever be the same.” She testified against Hernandez in January and also spoke at Soto’s sentencing March 4.
She has nightmares “because of the violent, disgusting things that happened to me,” and is afraid to go out alone, the woman told the court during her tearful statement today.
“He should have to live with what he did the rest of his life like I do,” said the mother of three, who had never met the two men before the night they attacked her. “My life has forever been altered.”
Soto admitted he and Hernandez sexually assaulted the woman after a party May 18, despite her pleas for them to stop and attempts to fight them off. She was left with bruises on her body “from head to toe,” according to a police investigator.
Widseth said today in court the violent attack involved “multiple forms of penetration,” and that the victim “will have to carry scars from it the rest of her life.”
In a decision criticized by Widseth, police and victims’ advocates, state District Judge Jeffrey Remick sentenced Soto March 4 to the minimum presumed sentence of 12 years, but stayed all of the sentence except for the time Soto had served since his arrest last May. While Soto is on supervised probation for 30 years, he walked out of jail the same day he was sentenced.
That sentence, and the furor it caused, became part of Hernandez’s hearing today.
The case is unusual because of the public criticism of the sentenced imposed on Soto, who is 37 and considered more culpable in the attack, said Hernandez's attorney, Corey Harbott.
Adding to the unusual nature of the case, Harbott asked Marben, before sentencing, to declare a mistrial in his case, based on the public criticism of Soto’s sentence that appeared in a Grand Forks Herald article last month. The comments made by Widseth and a police investigator to the Grand Forks Herald were “improper,” and would prejudice the court against Hernandez in sentencing, Harbott argued.
He and Widseth filed briefs on the issue last week.
Widseth told Marben there is nothing in state laws or rules prohibiting such statements after a sentence is imposed.
Marben quickly denied Harbott’s request for a mistrial after a five-minute hearing and asked both sides for their sentence recommendations.
Widseth said Hernandez was convicted quickly by a jury of a violent sexual assault, which after homicide is the most serious crime his office prosecutes. Hernandez did not cooperate with the investigation, Widseth said. “He took no responsibility and showed no remorse.”
Hernandez refused even to fill out the pre-sentence investigation questionnaire, showing he holds the court “in utter contempt,” Widseth told Marben in asking for a sentence of 172 months, or 14 1/3 years, in prison.
Harbott argued today it wouldn’t be fair for his client to serve more time than Soto, when Herandez played a more “minor” role in the attack. He should not be penalized because “he had the audacity to go to trial,” and because “he still doesn’t think he’s guilty,” Harbott said.
Standing before Marben in shackles and his orange jail clothes, Hernandez said he felt like a victim and found it incredible he was accused and convicted of first-degree criminal sexual conduct, a charge that has a maximum sentence of 30 years in prison.
“It’s really taken a toll on me mentally,” he said. “There’s no way I would ever or could ever do something so cruel to anybody.” He also spoke up for Soto, saying he wasn’t capable of such violence either.
“It’s disgusting to be hit with all this,” he said. “What does a guy gotta do when he’s accused of this?... What could you do... once someone says this about you?”
Marben told Hernandez that state sentencing guidelines presume a 12-year sentence for such a crime and that there was nothing in the case that gave him reason to reduce that minimum, especially since Hernandez didn’t bother to cooperate with the pre-sentence investigation.
Marben told Hernandez that, by state rules, he must serve two-thirds of his sentence behind bars and the rest on supervised probation.
He also must serve 10 years of conditional release after his prison term; if he violates the terms of that release, he could be sentenced to serve another 10 years in prison. He also must register as a predatory sexual offender and is prohibited from using or possessing firearms for life, Marben told Hernandez. He was ordered to be taken immediately to St. Cloud to be checked into the state prison system; he likely will serve his sentence in Stillwater.