State v. Back

• Decision Date: 09 December 1983
• Docket Number: Nos. CX-83-554,CX-83-554,C9-83-1002,s. CX-83-554
• Citation: 341 N.W.2d 273
• Parties: STATE of Minnesota, Respondent, v. Ronald William BACK, Appellant (), James Croft, Appellant (C9-83-1002). Nos. , C9-83-1002
• Court: Minnesota Supreme Court

Page 273

341 N.W.2d 273

STATE of Minnesota, Respondent, v. Ronald William BACK, Appellant (CX-83-554) James Croft, Appellant (C9-83-1002).

Nos. CX-83-554, C9-83-1002.

Supreme Court of Minnesota

Dec. 9, 1983.

Syllabus by the Court

Trial judge did not err in refusing to depart durationally from presumptive sentence in sentencing man who participated in shooting spree that resulted in the death of a woman, and a different trial judge did not err in departing durationally from the presumptive sentence in sentencing a codefendant who actually fired the shot that killed the victim.

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

C. Paul Jones, State Public Defender by Mark F. Anderson, Asst. State Public Defender, Minneapolis, for appellant Back.

Robert D. Goodell, Minneapolis, for appellant Croft.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas Johnson, Hennepin County Atty., and Vernon E. Bergstrom, Chief Appellate Div., for respondent.

AMDAHL, Chief Justice.

We have consolidated for purposes of decision the sentencing appeals of Ronald William Back and James Croft, both of whom were convicted in Hennepin County District Court of second-degree felony murder, Minn.Stat. Sec. 609.19(2) (1982), for their roles in the shooting death of a Minneapolis woman early on July 17, 1982. We affirm.

The records on appeal indicate that, after an evening of drinking and smoking marijuana, defendants and a 14-year-old girl decided to "go out shooting." Back obtained a .44 caliber Magnum rifle and approximately 30 rounds of ammunition and then drove his car around Brooklyn Center and Brooklyn Park with Croft shooting at cars, street lights, and buildings. Apparently at the suggestion of the juvenile, who was in the middle of the front seat, they drove to the house of the victim. Croft fired 4 or 5 shots into the house. The victim was on the porch. She was killed by one of the bullets.

Both defendants had a criminal history score of zero. The presumptive sentence for the offense of second-degree felony-murder (which was a severity level X offense) by a person with defendants' criminal history score (zero) was an executed prison term of 116 (111-121) months. ¹ The judge who presided at Back's trial denied Back's motion for a downward durational departure, sentencing him to the presumptive sentence of 116 months in prison. The judge who accepted Croft's guilty plea sentenced him to 150 months in prison, a limited upward durational departure.

1. Defendant Back contends that he should have been sentenced to only 97 months in prison, which is the presumptive sentence for third-degree depraved-mind murder, section 609.195. Mr. Back bases this in part on his belief that although he was technically guilty of felony-murder, his conduct more closely fit that covered by section 609.195, which deals with "[causing] the death of another [person] by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life." Back also bases it on his lack of prior involvement in crime, his relatively passive role in the crime, and his remorse.

As a general rule, a defendant's remorse bears only on a decision whether or not to depart dispositionally, not on a decision to depart durationally or with respect to consecutive service. See State v. McGee, (Minn., filed September 16, 1983) (indicating that there may be cases in which a defendant's lack of remorse could relate back and be considered as evidence bearing on a determination of the cruelty or seriousness of the conduct on which the conviction was based); State v. Schmit, 329 N.W.2d 56, 58, n. 1 (Minn.1983) (indicating that the defendant's lack of remorse was not a factor justifying a durational departure or one with respect to consecutive service); State v. Trog, 323 N.W.2d 28 (Minn.1982) (indicating that a defendant's remorse and attitude in court are relevant factors in deciding whether to depart dispositionally). In this case, the trial court was not persuaded that Back's remorse was a significant factor that would justify a downward durational departure.

The fact that a defendant's role in the commission of a crime was "minor" or "passive" is a mitigating factor listed in Minnesota Sentencing Guidelines and Commentary, II.D.2.a. (1982). However, in this case the trial court was unwilling to characterize defendant's role in the commission of the crime as passive. As we indicated in State v. Carson, 320 N.W.2d 432, 438 (Minn.1982), "Whether or not the defendant played a passive role in the offense is the type of factual issue best decided at the trial court level in most cases."

Even if it could be said that defendant Back played a minor or passive role in the commission of the crime, the trial court was still under no obligation to depart durationally. We have indicated in a number of cases that ordinarily we will not interfere with a sentence that falls within the presumptive sentence range even if there are grounds that would justify departure. See, e.g., State v. Abeyta, 336 N.W.2d 264 (Minn.1983) (rejecting an argument that the trial court erred in refusing to depart dispositionally and place the defendant on probation). In State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981), we stated:

Minn.Stat. Sec. 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.

Other cases to the same effect include State v. Brusven, 327 N.W.2d 591 (Minn.1982), and State v. Kraft, 326 N.W.2d 840 (Minn.1982).

We do not believe that the trial court erred in this case in refusing to depart. In this respect, we disagree with the contention that defendant's conduct was more consistent with depraved-mind murder than with felony-murder. Under the approach which we have taken, defendant's conduct very clearly constituted felony-murder. See State v. Nunn, 297 N.W.2d 752 (Minn.1980) (upholding use of felony-murder rule even if underlying felony is so-called property offense where the underlying felony, as committed, involved special danger to human life).

One other matter must be discussed in connection with defendant Back's appeal. Mr. Back points out that the Guidelines grid makes no distinction between second-degree intentional murder and second-degree felony murder, and he argues that this is wrong because one who commits intentional murder is more culpable than is someone who aids and abets another in committing an act of shooting at a house that results in death. We believe that whether or not felony-murder should be classified as second-degree murder or third-degree murder is a legislative decision. ²

2. Defendant Croft contends that he should have been sentenced to the same presumptive sentence that defendant Back received. He argues that the grounds relied on by the trial court do not apply in this case. He also argues that it is unfair to give him a different sentence than that given to defendant Back.

The trial court justified the limited durational departure as follows:

The Court believes that while no one of those factors standing alone would justify an upward departure in sentencing in this case, that some of them taken together would constitute substantial and compelling reasons recognized by the sentencing guidelines as justifying an upward departure in this case. Those factors are, first, that the underlying felony in this case was one which did extend over a substantial period of time, a substantial geographic area, involved substantial victims. Not only was the immediate conduct of...