Kandiyohi County Attorney plans to appeal Willmar man's sentencing for felony drug sale after judge stays 85-month prison sentence
Kandiyohi County Attorney Shane Baker wrote in an email that his office will appeal the sentencing for Franky Esquivel Torres, 34, of Willmar, who was convicted of felony first-degree drug sales. Minnesota sentencing guidelines call for an executed 85-month prison sentence, but Minnesota Eighth Judicial District Judge Melissa Listug stayed that sentence, allowing Torres to serve less time while on electronic home monitoring.
As part of a plea deal, Franky Esquivel Torres, 34, pleaded guilty, in two separate cases June 11, to felony deprive custodian or parent of rights — cause child being runaway and felony first-degree drug sale — 17 grams or more of cocaine or meth within a 90-day period. He was sentenced Sept. 1.
Minnesota Eighth Judicial District Judge Melissa Listug also ordered Torres to supply a DNA sample, undergo a psychological-sexual evaluation, have no contact with the victims or family, not use or possess alcohol, drugs, firearms, ammunition or explosives and register as a predatory offender.
Torres was also ordered to pay a total of $880 in fees and fines for his convictions.
According to court records, Torres has been in treatment for addictions and is currently living in the Fargo-Moorhead area.
In the case where he was convicted of felony first-degree drug sale — 17 grams or more of cocaine or meth within a 90-day period, he was sentenced to 85 months in prison, stayed for 10 years. He was also sentenced to 365 days in Kandiyohi County Jail and credited with 137 days served and ordered to undergo 10 years probation.
Judge Listug allowed for the jail time to be served on electronic home monitoring.
According Kandiyohi County Attorney Shane Baker, a plea agreement was made where Torres would plea guilty to the most serious of his charges — felony first-degree drug sales — for which Minnesota sentencing guidelines call for Torres to be sentenced to an executed 85 months in prison.
"The judge should have followed the guidelines and ordered the presumed executed prison sentence of 85 months," Baker wrote in an email. "It is what we asked for, and Mr. Torres should be serving that prison sentence."
According to the criminal complaint in this case, Torres was accused of selling 22.2 grams of methamphetamine to a confidential informant for the CEE-IV Drug and Gang Task Force.
Judge Listug ordered a departure from the sentencing guidelines in the case, something Baker wrote should not have been done.
"I think the judge had no good basis to go against the guidelines and inappropriately departed by giving probation," Baker wrote. "We plan to appeal this sentence."
His office has 90 days to submit an appeal.
In the case where Torres was convicted of felony deprive custodial/parent rights — cause child being runaway, he was sentenced Sept. 1 to 12 months and one day in prison, stayed for four years. He was also sentenced to 139 days in the Kandiyohi County Jail but was given credit for 139 days served.
Judge Listug also ordered Torres undergo supervised probation for four years in this case.
As part of a plea deal, charges of felony fourth-degree criminal sex conduct with a victim between 13-15, felony drugs, cause or permit child or vulnerable adult to ingest, inhale or be exposed to meth, felony fourth-degree drug sale, felony third-degree criminal sex conduct of a victim with mental impair or helpless and felony third-degree criminal sex conduct with a victim between 13-15 years were dismissed.
According to the criminal complaint for that case, Torres was accused of giving methamphetamine to a juvenile female runaway and sexually assaulting her in a Willmar hotel room.
Torres denied any drug or sexual activity with the juvenile when questioned by law enforcement, but admitted he knew she was a runaway and brought her to the hotel.
At the time of the incident, the juvenile was between 13 and 15. She told law enforcement she told Torres she was 19.
According to the complaint, the juvenile told a mandated reporter that she and Torres engaged in sexual activity.
As part of the plea deals, multiple charges were dismissed in multiple other cases, including felony second-degree drug sale and felony third-degree drug possession in one case; three felony first-degree drug charges, second-degree assault and misdemeanor theft in another; felony second-degree assault — fear in another; felony fleeing a peace officer in a motor vehicle and felony fifth-degree drug possession in another; and felony possession of ammo or firearm following a conviction or adjudicated delinquent for crime of violence, felony fifth-degree drug sale or possession and possession of of drug paraphernalia, a petty misdemeanor in another.
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