This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-0199
State of Minnesota, Respondent,
vs.
Gregory Steven Proell, Jr., Appellant.
Filed January 2, 2024 Affirmed Gaïtas, Judge
Anoka County District Court File No. 02-CR-21-5517
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Brad Johnson, Anoka County Attorney, Kelsey R. Kelley, Assistant County Attorney, Anoka, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Gaïtas, Presiding Judge; Smith, Tracy M., Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Gregory Steven Proell Jr. challenges the district court’s imposition of four
consecutive sentences following his guilty pleas to four counts of possession of child
pornography. He argues that the district court erred by imposing multiple sentences because his possession of the pornographic images involved a single behavioral incident.
Alternatively, he contends that consecutive sentences unfairly exaggerate the criminality
of his conduct. Because consecutive sentences are lawful under the multiple-victim rule
even for offenses occurring during a single behavioral incident, and because the sentences
do not unfairly exaggerate Proell’s criminality, we affirm.
FACTS
Police discovered multiple images of suspected child pornography on Proell’s
phone. During a subsequent investigation, the National Center for Missing and Exploited
Children confirmed that six of the images came from “four known [child pornography]
image series” and “contained prepubescent girls, meaning under the age of 13.” The
organization also verified that the six images depicted four different girls, two of whom
appeared in two separate images. Following the investigation, respondent State of
Minnesota charged Proell with ten counts of possession of pornographic work involving
minors, including four counts of possessing images of children under the age of 13. 1
Proell and the state entered into a plea agreement. The agreement required Proell
to plead guilty to the four charges involving the images of children under the age of 13,
and, in exchange, the state would dismiss the remaining child pornography charges and a
felony charge in another matter. Under the terms of the agreement, Proell would be
1 See Minn. Stat. § 617.247, subd. 4(a) (prohibiting possession of pornographic work involving minors), (b)(3) (prohibiting possession of pornographic work involving minors under age 13) (2020).
2 sentenced to 100 months in prison on one count and consecutive 18-month sentences on
the three remaining counts. 2
During the guilty-plea hearing, Proell admitted to the following facts: the police
seized his cellphone, which contained images that qualified as child pornography; he was
aware the images were on his phone; he knew the images were from four different child
pornography image series; when he downloaded the images, he knew they were child
pornography; the images were of “real children under the age of 13”; and the children in
all six images “were depicted showing their bare genitals or engaged in sexually explicit
positions.” Proell also acknowledged that he came into possession of the images by taking
an individual “screenshot” of each image on a social media application.
Before sentencing, the district court expressed concern that separate sentences, as
required under the plea agreement, could violate Minnesota law. Based on this concern,
the district court asked the parties to brief the issue of whether Proell’s possession of the
four images stemmed from four separate courses of conduct or from a single behavioral
incident. At the sentencing hearing, the district court stated that it was “comfortable going
forward with the plea agreement” because Proell’s possession of the images “required
2 Under the terms of the plea agreement, Proell’s criminal-history score of six would be used to calculate the presumptive sentence for the first conviction, and, in accordance with the sentencing guidelines, a criminal-history score of zero would be used to calculate the presumptive sentences for the remaining three consecutive sentences. See Minn. Sent’g Guidelines 2.F.2.b (“For each felony offense sentenced consecutively to another felony offense(s), the court must use a Criminal History Score of 0, or the mandatory minimum for the offense, whichever is longer, to determine the presumptive duration.”) & cmt. 2.F.202 (“The purpose of this procedure is to count an offender’s criminal history score only one time in the computation of consecutive sentence durations.”) (2020).
3 [Proell] to take four separate screenshots and save four separate images of each victim to
his phone.” The district court found that Proell’s conduct constituted “four distinct and
separate actions [showing] intent to possess four different images of known child
pornography.” Given these findings, the district court concluded that multiple sentences
were lawful. Additionally, the district court noted that the existence of multiple victims
provided an alternative rationale for the multiple sentences required by the plea agreement.
The district court sentenced Proell to the agreed-upon sentences of 100 months in prison
followed by three consecutive 18-month prison terms.
Proell appeals.
DECISION
Proell challenges the district court’s imposition of multiple sentences on two
grounds. First, he argues that his sentences violate Minnesota Statutes section 609.035,
subdivision 1 (2020), which bars the imposition of multiple sentences when more than one
conviction stems from a single course of conduct. Second, and alternatively, he contends
that his sentences unfairly exaggerate the criminality of his conduct.
An appellate court affords the sentencing court wide discretion and will reverse a
sentence “only for an abuse of that discretion.” State v. Soto, 855 N.W.2d 303, 307-08
(Minn. 2014) (quoting State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999)). The district court
abuses its discretion when a sentence is “based on an erroneous view of the law or is
against logic and the facts in the record.” State v. Hallmark, 927 N.W.2d 281, 291
(Minn. 2019) (quotation omitted). However, whether offenses were part of a single
behavioral incident for the purpose of sentencing presents a mixed question of law and
4 fact; the appellate court reviews the district court’s factual findings for clear error and the
application of the law to the facts de novo. State v. Bakken, 883 N.W.2d 264, 270 (Minn.
2016); see also State v. O’Meara, 755 N.W.2d 29, 37 (Minn. App. 2008) (stating that a
district court’s decision as to whether multiple offenses were committed as part of a
single behavioral incident for the purpose of section 609.035 entails factual
determinations that will not be reversed unless clearly erroneous).
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This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-0199
State of Minnesota, Respondent,
vs.
Gregory Steven Proell, Jr., Appellant.
Filed January 2, 2024 Affirmed Gaïtas, Judge
Anoka County District Court File No. 02-CR-21-5517
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Brad Johnson, Anoka County Attorney, Kelsey R. Kelley, Assistant County Attorney, Anoka, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Gaïtas, Presiding Judge; Smith, Tracy M., Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Gregory Steven Proell Jr. challenges the district court’s imposition of four
consecutive sentences following his guilty pleas to four counts of possession of child
pornography. He argues that the district court erred by imposing multiple sentences because his possession of the pornographic images involved a single behavioral incident.
Alternatively, he contends that consecutive sentences unfairly exaggerate the criminality
of his conduct. Because consecutive sentences are lawful under the multiple-victim rule
even for offenses occurring during a single behavioral incident, and because the sentences
do not unfairly exaggerate Proell’s criminality, we affirm.
FACTS
Police discovered multiple images of suspected child pornography on Proell’s
phone. During a subsequent investigation, the National Center for Missing and Exploited
Children confirmed that six of the images came from “four known [child pornography]
image series” and “contained prepubescent girls, meaning under the age of 13.” The
organization also verified that the six images depicted four different girls, two of whom
appeared in two separate images. Following the investigation, respondent State of
Minnesota charged Proell with ten counts of possession of pornographic work involving
minors, including four counts of possessing images of children under the age of 13. 1
Proell and the state entered into a plea agreement. The agreement required Proell
to plead guilty to the four charges involving the images of children under the age of 13,
and, in exchange, the state would dismiss the remaining child pornography charges and a
felony charge in another matter. Under the terms of the agreement, Proell would be
1 See Minn. Stat. § 617.247, subd. 4(a) (prohibiting possession of pornographic work involving minors), (b)(3) (prohibiting possession of pornographic work involving minors under age 13) (2020).
2 sentenced to 100 months in prison on one count and consecutive 18-month sentences on
the three remaining counts. 2
During the guilty-plea hearing, Proell admitted to the following facts: the police
seized his cellphone, which contained images that qualified as child pornography; he was
aware the images were on his phone; he knew the images were from four different child
pornography image series; when he downloaded the images, he knew they were child
pornography; the images were of “real children under the age of 13”; and the children in
all six images “were depicted showing their bare genitals or engaged in sexually explicit
positions.” Proell also acknowledged that he came into possession of the images by taking
an individual “screenshot” of each image on a social media application.
Before sentencing, the district court expressed concern that separate sentences, as
required under the plea agreement, could violate Minnesota law. Based on this concern,
the district court asked the parties to brief the issue of whether Proell’s possession of the
four images stemmed from four separate courses of conduct or from a single behavioral
incident. At the sentencing hearing, the district court stated that it was “comfortable going
forward with the plea agreement” because Proell’s possession of the images “required
2 Under the terms of the plea agreement, Proell’s criminal-history score of six would be used to calculate the presumptive sentence for the first conviction, and, in accordance with the sentencing guidelines, a criminal-history score of zero would be used to calculate the presumptive sentences for the remaining three consecutive sentences. See Minn. Sent’g Guidelines 2.F.2.b (“For each felony offense sentenced consecutively to another felony offense(s), the court must use a Criminal History Score of 0, or the mandatory minimum for the offense, whichever is longer, to determine the presumptive duration.”) & cmt. 2.F.202 (“The purpose of this procedure is to count an offender’s criminal history score only one time in the computation of consecutive sentence durations.”) (2020).
3 [Proell] to take four separate screenshots and save four separate images of each victim to
his phone.” The district court found that Proell’s conduct constituted “four distinct and
separate actions [showing] intent to possess four different images of known child
pornography.” Given these findings, the district court concluded that multiple sentences
were lawful. Additionally, the district court noted that the existence of multiple victims
provided an alternative rationale for the multiple sentences required by the plea agreement.
The district court sentenced Proell to the agreed-upon sentences of 100 months in prison
followed by three consecutive 18-month prison terms.
Proell appeals.
DECISION
Proell challenges the district court’s imposition of multiple sentences on two
grounds. First, he argues that his sentences violate Minnesota Statutes section 609.035,
subdivision 1 (2020), which bars the imposition of multiple sentences when more than one
conviction stems from a single course of conduct. Second, and alternatively, he contends
that his sentences unfairly exaggerate the criminality of his conduct.
An appellate court affords the sentencing court wide discretion and will reverse a
sentence “only for an abuse of that discretion.” State v. Soto, 855 N.W.2d 303, 307-08
(Minn. 2014) (quoting State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999)). The district court
abuses its discretion when a sentence is “based on an erroneous view of the law or is
against logic and the facts in the record.” State v. Hallmark, 927 N.W.2d 281, 291
(Minn. 2019) (quotation omitted). However, whether offenses were part of a single
behavioral incident for the purpose of sentencing presents a mixed question of law and
4 fact; the appellate court reviews the district court’s factual findings for clear error and the
application of the law to the facts de novo. State v. Bakken, 883 N.W.2d 264, 270 (Minn.
2016); see also State v. O’Meara, 755 N.W.2d 29, 37 (Minn. App. 2008) (stating that a
district court’s decision as to whether multiple offenses were committed as part of a
single behavioral incident for the purpose of section 609.035 entails factual
determinations that will not be reversed unless clearly erroneous).
We first consider Proell’s argument that the district court’s imposition of multiple
sentences violated Minnesota law because he possessed the four images of child
pornography during a single behavioral incident. Section 609.035, subdivision 1, provides
that “if a person’s conduct constitutes more than one offense under the laws of this state,
the person may be punished for only one of the offenses.” Under this statutory provision,
multiple sentences—even concurrent sentences—are unlawful if imposed “for two or more
offenses that were committed as part of a single behavioral incident.” Bakken, 883 N.W.2d
at 270 (quotation omitted). This principle protects a defendant from “unfair exaggeration
of the criminality of his conduct.” State v. Johnson, 653 N.W.2d 646, 651 (Minn. App.
2002).
However, section 609.035 does not apply when a defendant commits multiple acts
against multiple victims. Munt v. State, 920 N.W.2d 410, 416-17 (Minn. 2018). The
Minnesota Supreme Court has stated that “acts committed against separate victims are not
‘conduct’ for purposes of section 609.035 because the legislature did not intend in every
case to immunize offenders from the consequences of separate crimes intentionally
committed in a single episode against more than one individual.” Id. at 417. Thus, in cases
5 involving multiple victims—even when the defendant’s conduct constituted a single
behavioral incident—“the [district] court may impose one sentence per victim . . . so long
as the multiple sentences do not unfairly exaggerate the criminality of the defendant’s
conduct.” State v. Montalvo, 324 N.W.2d 650, 652 (Minn. 1982); see also Munt, 920
N.W.2d at 419 (concluding that the “multiple-victim rule” was “within the judicial
branch’s authority and does not violate separation-of-powers principles”).
We have previously applied the multiple-victim rule to affirm multiple sentences
imposed for multiple child pornography convictions involving a single behavioral incident.
In State v. Rhoades, we stated that a defendant “convicted of multiple counts of possession
of child pornography as part of a single behavioral incident that involves images of multiple
victims may be sentenced consecutively on each count under the multiple-victim [rule].”
690 N.W.2d 135, 136 (Minn. App. 2004).
Here, the record supports the district court’s finding that each of the four images
that Proell possessed depicted a different victim. And we note that Proell does not argue
on appeal that the multiple-victim rule does not apply under the circumstances of his case.
Because the multiple-victim rule applies, the district court’s imposition of multiple
sentences was lawful even if Proell’s conduct involved a single behavioral incident. See
Montalvo, 324 N.W.2d at 652. Thus, section 609.035 is not implicated here.
Proell next contends that, even if the district court had authority to impose multiple
sentences, its decision to do so was an abuse of discretion because a 154-month prison
sentence for possessing four child-pornography images unfairly exaggerates the
criminality of his conduct.
6 “Consecutive sentencing of multiple felonies with multiple victims is permissive
and within the broad discretion of the [district] court.” State v. Richardson, 670 N.W.2d
267, 284 (Minn. 2003). But a district court abuses its discretion when its imposition of
consecutive sentences unfairly exaggerates the criminality of a defendant’s conduct. See
Rhoades, 690 N.W.2d at 137-38; State v. Cruz-Ramirez, 771 N.W.2d 497, 512 (Minn.
2009) (noting that, appellate courts review the imposition of multiple and consecutive
sentences when multiple victims are involved under the abuse-of-discretion standard, and
multiple sentences will be upheld so long as they do not unfairly exaggerate the criminality
of the conduct); State v. Vang, 847 N.W.2d 248, 264 (Minn. 2014) (“[Appellate courts]
will not interfere with a district court’s discretion in sentencing unless the sentence is
disproportionate to the offense or unfairly exaggerates the criminality of the defendant’s
conduct.”).
In sentencing Proell, the district court specifically considered whether multiple
consecutive sentences would unfairly exaggerate the criminality of Proell’s conduct. The
district court concluded that the agreed-upon consecutive sentences were not unfair. It
noted that Proell was originally charged with ten counts of possessing child pornography
and he received a substantial benefit under the terms of the plea agreement, which required
the state to dismiss six counts. The district court also referenced Proell’s criminal history,
which was lengthy and included a prior criminal sexual conduct offense involving a minor.
To address whether a sentence unfairly exaggerates the criminality of a defendant’s
conduct, an appellate court examines sentences in similar cases. State v. Lee, 491 N.W.2d
895, 902 (Minn. 1992). Proell does not cite any factually similar cases to support his
7 argument that consecutive sentences unfairly exaggerate the criminality of his conduct.
But the state directs us to our decision in Rhoades, which we again find instructive. There,
the defendant was charged with ten counts of possession of child pornography and pleaded
guilty to six charges in exchange for receiving “a separate sentence on each count, to be
served consecutively.” Rhoades, 690 N.W.2d at 137. Relying on the defendant’s criminal-
history score of four, the district court adopted the plea agreement and sentenced the
defendant to 24 months for the first count and consecutive sentences of one-year-and-one-
day for the remaining five counts for a total of 84 months’ imprisonment. Id. We
determined in Rhoades that the consecutive sentences did not unfairly exaggerate the
criminality of the defendant’s conduct. Id. at 140.
The total duration of Proell’s sentences is slightly longer than the total duration of
the sentences in Rhoades. However, this difference is not material given the specific
circumstances in Proell’s case. Because Proell’s victims were under 13 years old, his
convictions were for more serious offenses than those in Rhoades. 3 And Proell had a higher
criminal-history score than the defendant in Rhoades. Accounting for these distinctions,
Proell’s sentences are comparable to the sentences in Rhoades, which we determined did
not exaggerate the criminality of the defendant’s conduct. Thus, we reject Proell’s
argument that his consecutive sentences must be reversed because they unfairly exaggerate
the criminality of his conduct.
Affirmed.
3 The appellant in Rhoades was convicted of possessing images involving minors, but not images of minors under 13 years of age. Rhoades, 690 N.W.2d at 137.