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State v. Kindem

Supreme Court of Minnesota
Dec 7, 1981
313 N.W.2d 6 (Minn. 1981)

Summary

holding that a lesser role in a crime may support a decision to depart but does not obligate the district court to depart

Summary of this case from State v. Kong Meng Vang

Opinion

No. 81-929.

December 7, 1981.

Appeal from the District Court, Hennepin County, Donald T. Barbeau, J.

Mary C. Cade, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon Bergstrom, Asst. County Atty., Chief, Appellate Section, Minneapolis, for respondent.

Considered and decided by the court en banc without oral argument.


This is a sentencing appeal. Defendant was charged by indictment with second-degree murder and pled guilty to third-degree murder (felony murder). The presumptive sentence for one convicted of third-degree murder who has a criminal history score of zero is 97 months with a permissible range of deviation of 94 to 100 months without departing. The trial court imposed a 94-month prison term. The issue on appeal is whether the circumstances in defendant's favor were so compelling and substantial that the trial court erred in refusing to depart and impose a more lenient sentence. We affirm.

This prosecution arose from the beating death of a Minneapolis businessman in the course of a robbery of the man as he returned home early on June 17, 1980, carrying the previous day's business receipts. Defendant's older brother, Harlan, was the chief planner of the robbery and the one who delivered the blows which resulted in the victim's death, but defendant participated in the conspiracy phase of the robbery, and, although he did not physically participate in the attack, was present with his brother at the time of the robbery and attack. Also present was one Kari Stevens, whose role was to drive the get-away-vehicle.

The trial court agreed that Harlan was the "main culprit" and that defendant's role was a "more passive role" and that under some circumstances that might be a sufficient reason for departure. However, the court concluded that the reasons for downward departure in this case were not substantial and compelling.

Minn.Stat. § 244.11 (1980) permits the appeal in this case and we do not intend entirely to close the door on appeals from refusals to depart. However, we believe that it would be a rare case which would warrant reversal of the refusal to depart. As we stated in State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), the Guidelines state that when substantial and compelling circumstances are present, the judge "may" depart. This means that the trial court has broad discretion and that we generally will not interfere with the exercise of that discretion.

In this case, there were valid reasons for adhering to the presumptive sentence, including the fact that defendant admitted participating in the conspiracy to commit the robbery, aided in preparing for the robbery, and was physically present during the robbery and attack. By his presence alone he made more likely the commission of the crime because the record indicates that his brother did not like to commit crimes alone. Thus, while there may have been arguments for departing downward, there were also reasons for not doing so. That being so, the determination whether or not to depart was clearly a discretionary decision for the trial court to make.

Affirmed.


Summaries of

State v. Kindem

Supreme Court of Minnesota
Dec 7, 1981
313 N.W.2d 6 (Minn. 1981)

holding that a lesser role in a crime may support a decision to depart but does not obligate the district court to depart

Summary of this case from State v. Kong Meng Vang

holding that refusal to depart will be reversed only in a "rare case"

Summary of this case from State v. Shabazz

holding that a presumptive sentence will be reversed only in a "rare case"

Summary of this case from State v. Bollin

holding that appellate court will generally not interfere with district court's discretion in refusing to depart

Summary of this case from State v. Guerin

holding the trial court has broad discretion, and we generally will not interfere with the exercise of that discretion

Summary of this case from Boyd v. State

concluding in a case where the district court did not depart where there were arguments for departure "the determination whether or not to depart was clearly a discretionary decision"

Summary of this case from State v. Gosa

affirming imposition of a presumptive sentence for aiding and abetting a robbery

Summary of this case from State v. Robida

affirming district court's refusal to depart downward although mitigating factor existed

Summary of this case from State v. Shingobe

affirming district court's refusal to depart downwardly for lack of substantial and compelling circumstances

Summary of this case from State v. Zvorak

affirming district court's refusal to downwardly depart for lack of substantial and compelling circumstances

Summary of this case from State v. Sutton

affirming district court's refusal to downwardly depart for lack of substantial and compelling circumstances

Summary of this case from State v. Walsh

affirming district court's refusal to depart downward although mitigating factors existed

Summary of this case from State v. Hernandez

affirming district court's refusal to make downward departure although mitigating factors existed

Summary of this case from State v. Musawwir

affirming refusal to depart and stating that defendant's role in crime was not passive because codefendant did not like to commit crimes by himself and defendant's presence alone therefore made commission of crime more likely

Summary of this case from State v. Tarver

rejecting defendant's claim that circumstances in his favor were so "compelling and substantial" that district court erred by refusing to depart and impose more lenient sentence

Summary of this case from State v. Eastwood

recognizing that sentencing guidelines state that district court may depart when substantial and compelling reasons are present

Summary of this case from State v. Schaeffer

recognizing only in a "rare case" will reviewing court reverse imposition of presumptive sentence

Summary of this case from State v. Paulson

In State v. Kindem, 313 N.W.2d 6 (Minn. 1981), we indicated that we generally will not interfere with sentences that are within the presumptive sentence range.

Summary of this case from State v. Freyer

stating that "it would be a rare case which would warrant reversal of the refusal to depart"

Summary of this case from Walker v. State

noting that even when substantial and compelling circumstances exist, the district court "may" depart

Summary of this case from State v. Olsen

stating that a departure must be supported by "substantial and compelling" reasons showing that the departure is more appropriate than the presumptive sentence

Summary of this case from State v. Dentz

stating that although reasons may support departing downward, the district court is not required to depart

Summary of this case from State v. Collier

stating that it is a rare case where an appellate court will reverse a district court's imposition of the presumptive sentence

Summary of this case from State v. Barnard

noting that it is the "rare case which would warrant reversal of the refusal to depart"

Summary of this case from State v. Johnson

expressing belief "that it would be a rare case which would warrant reversal of the refusal to depart"

Summary of this case from State v. Anderson
Case details for

State v. Kindem

Case Details

Full title:STATE of Minnesota, Respondent, v. James KINDEM, Appellant

Court:Supreme Court of Minnesota

Date published: Dec 7, 1981

Citations

313 N.W.2d 6 (Minn. 1981)

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