WORTHINGTON ― After hearing arguments from both sides and taking two days to consider the facts, Fifth Judicial District Judge Sherry Haley denied a motion Friday to reduce the sentence for a man found guilty of exchanging sexually explicit text messages with a minor while incarcerated in Nobles County Jail.
Simon Gebrehiwot, 21, of Worthington, had additional charges filed against him last November after it was discovered that while in jail for another crime, he had been communicating with a 15-year-old girl, and the conversation was sexual in nature.
The criminal complaint listed six felony charges: third-degree criminal sexual conduct, victim aged 13-15; soliciting a child through electronic communication to engage in sexual conduct; two counts of engaging in electronic communication relating to or describing sexual conduct with a child; and two counts of distribution of electronic communication material that relates to or describes sexual conduct to a child.
Gebrehiwot pleaded guilty to the last charge, distribution of electronic communication material that relates to or describes sexual conduct to a child. The other charges were dismissed as part of the plea agreement.
Based on the severity of the offense and Gebrehiwot's criminal history, the presumptive sentence according to the Minnesota sentencing guidelines is 36 months in prison, Haley explained Tuesday. However, Gebrehiwot and his lawyer filed a motion requesting a downward durational departure to only 24 months.
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Defense attorney Louis Kuchera outlined the reasons for the request: Gebrehiwot admitted guilt, he forfeited his right to a trial and he expressed remorse.
Assistant Nobles County Attorney Braden Hoefert argued that none of those items are considered valid reasons, according to sentencing guidelines, for departing from the presumptive sentence. He also pointed out that all defendants who plead guilty are admitting guilt, so Gebrehiwot is not different from anyone else in that regard.
Further, Gebrehiwot is 21 years old and already has 5.5 felony points on his record, including violent offenses, Hoefert noted.
"This is not someone who is amenable to probation," he said.
"The prosecutor basically said I'm a menace to society ― I'm not," he said. "I have no issue with probation. I just successfully completed my parole. I'm only 21. I've never been given the opportunity for probation."
Hoefert pointed out that that claim is not true. Gebrehiwot has been on probation before, but probation was revoked due to violations.
Haley reviewed Gebrehiwot's carceral history with him, which includes a two-year stint in juvenile detention, two adult prison sentences and additional jail time for probation violations. She wanted to know what's different this time around.
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"My family needs me," Gebrehiwot said. "I just realized that doing this stuff is not helping my mother."
He added that he doesn't want to be in prison and find out that his mother has died.
Haley declined to make a ruling Tuesday, calling a two-day recess to allow her to re-read the court documents and consider everything she heard in the hearing.
When the parties reconvened Friday morning, Haley explained that she spent a lot of time reviewing the facts of the case and Gebrehiwot's criminal history.
When the requested departure is durational (as opposed to dispositional), she said, the court is to take into account the offense itself, not the offender.
"This is not about you, this is about what was done," she told Gebrehiwot.
However, even if his criminal history score is over-inflated, as he claimed, the sentencing guidelines would still recommend a 39-month sentence, she added. The only reason he is getting 36 months is because it's the statutory maximum for the offense.
Haley did not grant the depature. Gebrehiwot will serve 36 months is prison, with credit for 305 days previously served.
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"I hope that while you are in prison, you really focus on giving yourself some steps to dig yourself out of this hole," Haley said.
