Court Approves Imposing Same Sentence on Remand From Successful Appeal Even Though Sentence Is On Lesser Included Offense

State v. Kangbateh, Minn.S.Ct., 8/5/2015.  A jury convicted Mr. Kangbateh of attempted second degree murder for the benefit of a gang, attempted second degree murder, second degree assault for for the benefit of a gang, and second degree assault.  The trial court sentenced Mr. Kangbateh to an executed term of 165 months on the attempted second degree murder for the benefit of a gang.  For Mr. Kangbateh's criminal history score, the presumptive sentencing range was 130 months to 183 months, with a presumptive duration of 153 months.  The trial court imposed an executed sentence of 165 months; more about that later.

Mr. Kangbateh appealed.  The court of appeals agreed with him that the state had failed to present sufficient evidence on the benefit of a gang so it reversed his convictions of attempted second degree murder for the benefit of a gang and second degree assault for the benefit of a gang.  That court remanded with instructions to sentence Mr. Kangbateh on the (plain) attempted second degree murder.

On remand, the trial court imposed an executed term of, well, the exact same 165 months on the lesser included offense of attempted second degree murder.  Mr. Kangbateh appealed that sentence.  He said that at the first sentencing, the trial court had imposed a sentence of 153 months on the attempted second degree murder and that that sentence was then automatically enhanced an additional twelve months for the gang benefit element.  On remand, Mr. Kangbateh argued, the trial court was stuck with that 153 months even though by this time the trial court was sentencing him for an entirely different offense, "plain" attempted second degree murder. Now to give him 165 months on the "plain" attempted second degree murder violated the Prudhomme rule that says that a defendant can't get more time after a successful appeal than originally imposed. Justice Anderson, for five members of the court, rejects this argument in a form over substance sleight of hand.  Here's how it goes.

At the sentencing hearing, no one - not the court, the defense, the prosecutor, the probation officer who wrote the PSI - bothered to mention explicitly this 153 plus 12 months analysis.  Apparently, this 165 sentence, which is exactly the presumptive duration of 153 months plus the 12 month enhancement for the gang benefit, just sort of fell out of the ceiling during the initial sentencing hearing. On remand for sentencing on the "plain" attempted second degree murder count, the trial judge just happened to up the presumptive duration of 153 by exactly 12 months.  

To justify this, the court changes the subject.  Now it's whether the trial court was being "vindictive" at the remand sentencing rather than that the trial court had come to the correct initial sentence - 153 + 12 - without realizing it and was now stuck with the 153. The majority is unwilling to find such vindictiveness and so the sentence on this lesser included offense is affirmed.

This result produces an unlikely pairing of Chief Justice Gildea and Justice Page dissenting.  They are unwilling to go down this rabbit hole.  Here's how Justice Page's dissent begins:

I respectfully dissent. In my view, the sentencing court calculated Kangbateh’s initial sentence of 165 months by adhering to the Minnesota Sentencing Guidelines, which required the sentencing court to add 12 months for the offense committed for the benefit of a gang to the presumptive duration for the predicate offense of attempted second-degree murder. 1 Because it is axiomatic that a defendant may not be punished for an offense for which there is no conviction and because in this case we know that Kangbateh’s original sentence specifically included 12 months for an offense that was reversed on appeal, on remand the sentencing court was required, at a minimum, to subtract 12 months from Kangbateh’s sentence.