State v. Schmit, 82-595.

• Decision Date: 28 January 1983
• Docket Number: No. 82-595.,82-595.
• Citation: 329 NW 2d 56
• Parties: STATE of Minnesota, Respondent, v. Stephen Carl SCHMIT, Jr., Appellant.
• Court: Minnesota Supreme Court

329 N.W.2d 56 (1983)

STATE of Minnesota, Respondent, v. Stephen Carl SCHMIT, Jr., Appellant.

No. 82-595.

Supreme Court of Minnesota.

January 28, 1983.

C. Paul Jones, Public Defender, and Mollie G. Raskind, Asst. Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, R. Scott Hill, County Atty., Faribault, for respondent.

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

AMDAHL, Chief Justice.

This is an appeal by a criminal defendant, pursuant to Minn.Stat. § 244.11 (1982), from a durational sentencing departure.

Defendant was charged by indictment with first-degree murder in the shooting death of his wife, but a district court jury found him guilty only of first-degree heat-of-passion manslaughter. The presumptive sentence for this offense (severity level VIII) by a person with defendant's criminal history score (zero) normally would be 43 (41-45) months in prison. However, because a firearm was used, the presumptive sentence was 54 months in prison pursuant to Minn.Stat. § 609.11, subd. 5 (1982), and Minnesota Sentencing Guidelines and Commentary II.E. (1982). The sentencing court imposed a sentence of 180 months (15 years), the maximum permitted by statute for the offense of which defendant was convicted. We reduce defendant's sentence to 108 months, which is two times the presumptive sentence duration.

The record on appeal does not include the transcript of the trial, but does include a tape and transcript of the defendant's confession and a copy of the omnibus hearing transcript. It appears that defendant's wife, who was 25, was released from prison on May 5, 1981, after serving time for forgery. On May 8 defendant tried to persuade her parole agent to send her back to prison because of problems he was experiencing with her. Defendant admittedly had entertained thoughts of killing her in the past. On the evening of June 7 he had a long argument with her, which he claimed she insisted on having. After she went to bed, he lay in bed and thought about killing her. At 5:45 a.m. on the 8th, while she lay asleep, he shot her at close range with a .22 caliber revolver, killing her. He then covered the body and let it remain in bed all day. Late that night he put it in the trunk of his car, drove to an area near some railroad tracks, and disposed of it. What little remained of it was discovered around July 20. Positive identification was made on July 30. Defendant was interrogated and confessed on August 1.

The first factor relied upon by the sentencing court as a ground for the durational departure was the court's conclusion, notwithstanding the verdict, that the evidence of premeditation was overwhelming and that therefore defendant deserved greater punishment than the typical defendant convicted of first-degree heat-of-passion manslaughter. In a number of cases we have indicated that generally it is proper for the sentencing court to consider the conduct underlying the charge of which the defendant was convicted. See, e.g., State v. Rott, 313 N.W.2d 574 (Minn.1981); State v. McClay, 310 N.W.2d 683 (Minn.1981); State v. Garcia, 302 N.W.2d 643 (Minn.1981). However, in State v. Womack, 319 N.W.2d 17 (Minn.1982), we recognized an exception to the general rule. In Womack the defendant was charged with being a felon in possession of a pistol and with assault in the second degree (assault with a dangerous weapon). The defendant pleaded guilty to the possession charge on the understanding that the assault charge would be dismissed, but in sentencing the defendant the court based a durational departure on its belief that the defendant had committed the assault. We held that this was improper and reduced the defendant's sentence to the presumptive sentence length, stating:

Notwithstanding Garcia and related cases, we believe that it was error in this case for the trial court to rely on the overall course of conduct as justification for aggravating defendant\'s sentence for the possession charge. Defendant admitted that he violated the law in possessing the gun but at all times he has claimed that he used it against the complainant only in self-defense, first in striking her when she attacked him with the knife, later to fire in the air and frighten her in an attempt to stop her from attacking him as he attempted to drive away. Defendant had a right to have a jury determine his guilt or innocence of that charge. He gave up that right only on condition that the charge would be dismissed in exchange for his guilty plea to the possession charge. It is one thing for the sentencing court to look at the conduct underlying the offense to which the defendant plead guilty if the defendant admits that the underlying conduct occurred, but it is quite another thing when the defendant denies that such conduct occurred. In this case the defendant at all times has claimed that he acted in self-defense. Stated differently, although defendant obtained a dismissal of the assault charge in exchange for his guilty plea and although he has never

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