Presumptive Sentence on Remand, Although Above the “middle of the box” Number, is Neither a Departure nor an Abuse of Discretion.

State v. Delk, Minn.Ct.App., 5/4/2010.  Mr. Delk shot and killed Tiara Jo Martell with a .40 caliber semiautomatic pistol.  A jury convicted Mr. Delk of numerous offenses, the most serious of which was second degree intentional murder.  The trial court imposed a sentence on this count only but the appellate court sent the case back after concluding that the evidence did not support the conviction.  On remand, the trial court imposed a sentence on the second highest conviction, unintentional second degree murder, of 240 months.

The presumptive sentence range for second degree unintentional murder was 179 to 252 months.  Mr. Delk argued that any sentence other than the “middle of the box” sentence of 210 months is a departure from the presumptive sentence. 

An appellate court reviewes a trial court’s sentence for abuse of discretion.  State v. Ford, 539 N.W.2d 214, 229 (Minn. 1995).  This means that at least in theory, a sentence that is within the presumptive guidelines range can be reversed.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The appellate courts will generally not exercise its authority to modify a sentence within the presumptive range “absent compelling circumstances.” State v. Freyer, 328 N.W.2d 140, 142 (Minn. 1982).  Here, the appellate court brushes these notions aside, stating, instead, that because the sentence is within the range there was no abuse of discretion in imposing it.

Mr. Delk also argued that he got a longer sentence on remand than he originally got.  Follow the math.  On the original sentence for intentional second degree murder, the trial court imposed a sentence that was 12 months above the “middle of the box” number.  On remand, however, the trial court imposed a sentence that was 30 months more than the “middle of the box” number.  Well, no, the rule only prohibits a sentence on remand that is greater in actual length than the original sentence, which was not the case here.

In one last bid to get a lower sentence, Mr. Delk argued that the trial court’s sentence was largely the result of the prosecutor’s displeasure with the original reversal and remand.  The appellate court rejects this claim, in large part because the trial court did state its reasoning for imposing a sentence that was above the “middle of the box” number.