Sentenced to College - Chapter 7

The Judge

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While awaiting trial for the J.C. Penney incident that took place back in February 1999, Angel was still expected to abide by the terms of his probation that stemmed from his 1998 conviction of receiving stolen firearms. It was a lengthy list of requirements that not only included jail time, a fine, paying restitution, and providing a written apology to the owner of the stolen guns, the requirements also stated that:

• You must absolutely abstain from the use, possession, or consumption of alcohol or any other mood altering substance unless prescribed by a physician.

• You are subject to random urinalysis, alee­sensor, or any other method of testing deemed appropriate by probation to monitor your compliance with the abstinence provision.

• You must not own, possess, operate, or have access to firearms or any other weapons.

• You must meet with your probation agent at least one time per week or as otherwise directed by your agent.

• You must not fail appointments with your agent and you must present yourself at the times your agent arranges.

• You must notify your probation agent of any new address change so that your agent does know your proper address and telephone number at all times.

• You are not to leave the State of Minnesota without advance permission from either the Court or your probation agent.

• You are responsible to be law abiding and of good behavior at all times while on probation.

Angel had been doing a good job of staying in contact with his probation officer and not missing any appointments, but in light of the J.C. Penney incident, it was clear he was still having trouble staying out of trouble. This became even more evident in May when he tested positive for the use of marijuana on three separate occasions.

So, on June 30, 1999, Angel appeared once again in front of Judge Spilseth at the Kandiyohi County Courthouse in Willmar.

Judge Donald Spilseth of the Minnesota Eighth Judicial District of Minnesota. He was appointed to the court in 1994 and was re-elected in 2000, 2006, and 2012. He retired on October 6, 2017. Photo credit: West Central Tribune

The above-entitled matter came on for hearing before the Honorable Donald M. Spilseth, Judge of District Court, at the Kandiyohi County Courthouse, Willmar, Minnesota, on the 30th day of June, 1999, at approximately 1:41 p.m.

THE COURT: This is Kandiyohi County District Court, Criminal Division. The case before the Court is State versus Angel Hernandez.

In this case it is alleged that on October 20, 1998, the defendant was convicted of the crime of receiving stolen property and placed on probation for a period of ten years. Imposition of his sentence was stayed under certain conditions and it is now alleged that he has violated those conditions as follows: he violated condition number six which required that Mr. Hernandez was to absolutely abstain from the use, possession, or consumption of alcohol or any other mood altering substance which was not prescribed by a physician. It is now alleged that Mr. Hernandez tested positive for the use of marijuana on May 21, May 27, and June 10 of 1999 which allegedly would violate the terms of the sentence.

Appearing today are Jeff Thompson from the County Attorney's Office representing the plaintiff. The defendant appears in person with Mr. Kent Marshall, Attorney at Law, Barrett, Minnesota. Good afternoon, gentlemen.

Angel’s attorney, Kent Marshall, was a highly experienced criminal defense lawyer with a track record of successfully handling numerous felony-level trials. Residing in rural western Minnesota, he also served clients in Willmar and other areas of Central Minnesota.

THE COURT: The case involves this allegation of a violation. Mr. Marshall, did you have a chance to review this with your client?

MR. MARSHALL: I have, Your Honor. I have advised him of his rights, particularly his rights to deny the the allegations and to request a formal hearing. I have explained to him that he can call witnesses at that hearing, testify if he wants to. At this time he is going to waive those rights and admit the violation.

THE COURT: Mr. Hernandez, do you understand if you admit to this violation as your attorney states you are waiving your right to a hearing and, furthermore, you face the possibility that jail time would be executed. Do you understand that?

THE DEFENDANT: Yes, Your Honor.

For Angel, this was the second violation of his probation agreement. The first had occurred when he did not successfully complete the work program at Camp Ripley. Judge Spilseth had granted him some leniency at that time and allowed him to complete the duration of his 60-day sentence in county jail, avoiding the imposed sentence, which would carry a mandatory minimum of a year and a day in prison.

Now that Angel had once again violated the terms of his probation agreement by testing positive for marijuana on three separate occasions, he was looking at the possibility of the judge revoking his stay of imposition for good.

According to Minnesota Sentencing Guidelines, there are two steps in felony-level sentencing: (1) the imposition of a sentence, and (2) the execution of the sentence imposed.

• Stay of Imposition. A "stay of imposition" occurs when the court accepts and records a finding or plea of guilty, but does not impose a prison sentence. If the offender successfully completes the stay (as defined by the judge’s probation requirements), the case is discharged and the conviction is deemed a misdemeanor, but is still included in the offender’s criminal history.

• Stay of Execution. A "stay of execution" occurs when the court accepts and records a finding or plea of guilty, and a prison sentence is pronounced but is not executed. If the offender successfully completes the stay (as defined by the judge’s probation requirements), the case is discharged but the offender continues to have a record of a felony conviction.

Angel’s attorney, Kent Marshall, tried to convince Judge Spilseth that revoking the stay of imposition would be a harsh penalty for the level of his offenses.

MR. MARSHALL: The stay of imposition is relatively important to any criminal defendant and that is no different for Mr. Hernandez. If he can find a way to successfully complete probation, he can avoid the stigma of having that felony conviction on his record for the balance of his life.

These are violations. It is very clear in his probation agreement that he is not to use marijuana and it is very clear that he has been. But the fact still remains that the violations relate to petty misdemeanor offenses and they may very well relate to a chemical addiction. And I think that it would be unfortunate to revoke him and label him with that felony as the result of petty misdemeanor level offenses, which is the use of a small amount of marijuana.

County Attorney Jeff Thompson didn’t see it the same way.

MR. THOMPSON: The defendant did this, Your Honor, knowing that he would be going into probation on a weekly basis and being tested, completely flaunting the authority of the Court and, excuse me, completely thumbing his nose at the authority of the Court and of the Probation Department, and he has gone out of his way, Your Honor, to show that he does not deserve the privilege of probation and that his stay of imposition should be revoked.

THE COURT: Anything further, Mr. Marshall?

MR. MARSHALL: Your Honor, I just point out that, if you don't know for sure that you are going to be tested, you might flaunt the Court's authority and try to get by with the using. But I would suggest that, if you know that you are going to meet with your probation agent and you know that you are going to be tested and you are still testing positive, that it might be a pretty good indication that you don’t have the ability NOT to consume those illegal substances.

Judge Spilseth also asked Angel’s probation officer, Nancy Naujokas (Nye-OH-kiss) to weigh in.

MS. NAUJOKAS: Your Honor, my recommendation as shared earlier was to revoke the stay of imposition and to have him serve 45 days in jail, to complete a Rule 25 evaluation [an assessment process to receive funding and access to services for substance abuse] and follow the recommendations, and to be reinstated on the probation conditions that were previously in existence. However, I understand that Mr. Hernandez is interested in executing his time or requesting that, and I am not opposed to that, Your Honor.

Angel just wanted to serve his time and put this all behind him. Over the past year, he’d learned that being on probation was a lot of work. He owed $770 in restitution to the owner of the stolen shotguns, but he didn’t own a car, which made it difficult to find a job. He wasn’t allowed in Willmar, so he was living with his mother in Murdock, a tiny town of about 300, located 23 miles northwest of Willmar. To meet the terms of his probation, he had to make sure he didn’t miss any appointments with his Willmar-based probation officer, plus he had to return to Willmar “every time his color came up” in the schedule for random urinalysis (UA) testing.

In Minnesota, individuals who have been ordered to submit to random drug/alcohol testing are assigned a color by their probation officer that determines the frequency of their testing. They are then directed to call in daily between the hours of 6 AM and 8 AM to learn the color of the day. If the person’s color is identified as one of the colors of the day, they are expected to report to their designated testing site within the prescribed time frame.

So, in addition to having to call in every day to determine whether or not he needed to drive to Willmar to do his UA during the time he was assigned, he also need to pay $25 for each test. If he didn’t show up or if he didn’t pay, he could get arrested and go back to jail.

Angel explained that, in other counties, if someone didn’t have the money to pay for their UA test, the county would put it on a tab which you could then pay back when you got the money. But, not Kandiyohi County. Here, if you didn’t have the money to pay for the test, you went to jail.

“And then,” Angel added, “Every day you're in jail, you get charged $20 for being in jail. So you end up owing even MORE money by the time you come out.”

It was stressful and Angel just wanted to be done with all of it. He was ready to throw in the towel and, if necessary, serve his one year and one day in prison.

But, Judge Spilseth wasn’t ready to give up on this kid. He knew that a prison stay would only introduce Angel to darker and more dangerous criminal behavior. The judge had a tough decision to make. If he revoked the stay of imposition on Angel’s previous conviction for receiving stolen firearms, that meant Angel would have a felony on his record for the rest of his life. On the other hand, he couldn’t just keep giving the kid chances. Angel had already violated the terms of his probation twice, and his attitude wasn’t exactly stellar.

THE COURT: Mr. Hernandez, did you want to say anything?

THE DEFENDANT: No, Your Honor.

THE COURT: Mr. Marshall?

MR. MARSHALL: Nothing, Your Honor.

THE COURT: All right. The Court finds that the defendant, Angel Hernandez, has violated the probation and the terms of his stay of imposition. That is the result of the prior violation and the violation on this occasion which is repeated use of marijuana notwithstanding the Court's explicit prohibition against using marijuana or any other mood altering substance.

Accordingly, the Court at this time sentences the defendant and executes one year and one day of incarceration. And of the one year and one day, two-thirds of that time, or a period of eight months, shall be served in prison. A maximum of one-third of the time may be served on supervised release, assuming that the defendant commits no disciplinary offense in our out of prison. If he does commit a disciplinary offense, the entire time served could be the one year and one day.

Provided further that the Court will stay execution of the jail time under the following conditions:

1. The defendant shall serve forty-five days of jail time forthwith. He will be given credit for good time in his forty-five days.

2. The defendant shall present himself for a chemical use assessment and follow all recommendations of the assessment. He is responsible to complete any educational component, any treatment program, or aftercare.

3. The defendant is to serve and will be given credit for the time which he has already served in this matter.

4. The other terms and conditions pronounced as part of the stay of imposition will be incorporated and remain in full force and effect.

Mr. Hernandez, you are to report immediately for jail on this matter. The Court has chosen to revoke your stay of imposition and execute forty-five days of jail time due to the fact that these were repeated violations. The Court was quite explicit that you were not to use marijuana. You did so, a knowing violation of what the rules of this would be. Probation is a privilege and, at this point, it appears that it is no longer appropriate and forty-five days should be executed.

So, on June 30, 1999, 19-year-old Angel Hernandez was headed back to the Kandiyohi County Jail, now as a convicted felon. Judge Spilseth had granted him a stay of execution, meaning that Angel would avoid going to prison for the time being, but he still had his impending jury trial hanging over him, and in 45 days after he got out of jail, he would be back to the same rigid requirements of his probation.

Life was getting increasingly complicated for Angel Hernandez.

Little did he know… this was just the beginning.

Next time: The trial

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From DearJacobBook.com

Sneak Peek!

It’s been over a year now since Dear Jacob was published on October 17, 2023. During that time, Patty and I have made over 50 appearances together, sharing this story all over the state of Minnesota, as well as a few national appearances.

Now, Minnesota Historical Society Press is reaching out to an even larger audience with a new paperback version of the book. In addition to the redesigned cover, there’s also a new afterword written by me. It gives a raw, behind-the-scenes glimpse of what it took to write this book together, and the amazing friendship we developed along the way.

Below is the official press release from our publisher, Minnesota Historical Society Press, followed by an excerpt from the new afterword.

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Coming Soon in Paperback, Dear Jacob: A Mother’s Journey of Hope

Bestselling book by Patty Wetterling with Joy Baker is now available for preorder as paperback

ST. PAUL (Nov. 14, 2024)—Tens of thousands of readers embraced Dear Jacob: A Mother’s Journey of Hope, first published by the Minnesota Historical Society Press in hardcover in 2023. On Jan. 14, the paperback edition, featuring a new afterword and cover, spreads its powerful message even further. The paperback is now available for preorder.

A Parent’s Worst Nightmare, 27 Years Waiting for an Answer

In 1989, eleven-year-old Jacob Wetterling was kidnapped not far from his home in St. Joseph, Minnesota. The community quickly rallied around the family, and Patty Wetterling, Jacob’s mother, stepped into the spotlight.

Punctuated by Wetterling’s letters to her missing son, Dear Jacob brings readers into the heartbreak of a parent’s worst nightmare. It also describes the development of an unexpected friendship with an inquisitive blogger, Joy Baker, whose deft research uncovered clues that ultimately led to the conclusion of the twenty-seven-year-long missing persons case.

As the criminal investigation into Jacob’s disappearance stretched from weeks to months to years, Wetterling devoted herself to advocating for children. She successfully lobbied for the passage of the 1994 Jacob Wetterling Act, which established sex offender registries. She served on the board of the National Center for Missing and Exploited Children for over twenty years and became a nationally respected authority on child protection.

Co-written with Baker, this memoir chronicles both a personal and a collective story of contemporary history, one that permanently changed public policy and the way we parent our children. It also shows that communities can heal after tragedy, and that families can still experience love, joy, happiness, and hope.

Wetterling is a national advocate, visionary, and educator on the prevention of child abduction and exploitation. Baker works as an independent marketing consultant, writer, and blogger.

Available January 14, 2025
Memoir / True Crime, 354 pages, 6 x 9, 24 b&w images, new afterword
Paperback, $22.95, ISBN: 978-1-68134-314-3
e-Book, $12.99, ISBN: 978-1-68134-318-1

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Excerpt from the new Afterword

By Joy Baker

Sometimes a person comes into your life for reasons you can’t possibly un-derstand. When Patty and I first started working on this book, Jacob was still missing. We thought we were working on a legacy piece that would bring attention to his case, highlight Patty’s advocacy work, and serve as a spark of hope for other families of missing children. We were wrong. It became so much more.

As we worked on those early pages together, we couldn’t possibly have known what was in store for us or what our friendship would have to endure. To see it through would mean going there together—through the darkness, the sadness, and the unfathomable grief. Could we even do it? Would people be receptive to it? Would our friendship survive it?

It has been a remarkable journey.

At that charity gala in 2013 when Patty and I first met, I was forty-six; she was sixty-five. I had just given up my dream of starting a new writing career and gone back to working full-time at what I knew—marketing. Patty was a well-known keynote speaker, a child safety advocate, a national figure in Washington, DC, and probably the most famous Minnesotan I’d ever met. She just oozed drive and purpose. Like everyone else at the gala, I was blown away by her powerful message of hope and her belief in the overall goodness of humankind.

So I was more than a little nervous about approaching Patty that evening and introducing myself as the blogger who had been writing about her missing son for the past two months. Did she know who I was? Had she been following my blog? Was I making a difference? I was desperately trying to figure out my own purpose in life and hoped maybe this was it. By writing about Jacob’s case and asking people to “think Jacob” with me, maybe I could somehow create change.

It didn’t go as expected. Patty saw my writing less as “making a difference” and more “like stalking or something.”

Pre-order the new paperback version of Dear Jacob now, available on January 14, 2025!