This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Darrell E. Lewis,
Filed December 19, 2000
Ramsey County District Court
File No. K100699
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Lawrence Hammerling, Deputy State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Anderson, Judge.
After pleading guilty to second-degree murder, appellant Darrell E. Lewis was convicted and sentenced to 195 months, the presumptive guidelines sentence for a person with a criminal history score of three. See Minn. Stat. § 609.19, subd. 2(1) (1998) (unintentional felony murder). He appeals, arguing that the district court should have departed from the guidelines. Because this is not one of those rare cases where we will reverse a district court’s imposition of a presumptive sentence, we affirm.
A reviewing court affords the district court “great discretion in the imposition of sentences and * * * cannot simply substitute [its] judgment for that of the [district] court.” State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). Only in a “rare” case will a reviewing court reverse a district court’s imposition of a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Even when grounds exist that might justify a departure, a reviewing court ordinarily will not interfere with the imposition of a presumptive sentence. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983).
When determining whether departure is justified, a district court must consider if the “defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984). A court may choose to depart where a case involves “substantial and compelling circumstances” that either mitigate or aggravate a defendant’s culpability or the seriousness of the crime. Minn. Sent. Guidelines II.D. (departure), II.D.2.a. (nonexclusive list of mitigating factors), II.D.2.b. (nonexclusive list of aggravating factors). The sentences set out in the guidelines are presumed appropriate for every case, however, and departure should occur only in “a small number of cases[.]” Minn. Sent. Guidelines cmt. II.D.01.
In this case, appellant argues that he was entitled to a downward durational departure based on his claim that the victim was the aggressor. See Minn. Sent. Guidelines II.D.2.a.(1) (mitigation may exist when victim is aggressor). Appellant also claims that he was acting in self-defense and attempting to ward off the victim’s knife attack when he knocked the victim down. See Minn. Sent. Guidelines II.D.2.a.(5) (mitigation may exist when other “substantial grounds exist which tend to excuse or mitigate the offender’s culpability, although not amounting to a defense”). Appellant further insists that a downward departure is justified because he has accepted responsibility for his actions and has shown remorse. See State v. Bauerly, 520 N.W.2d 760, 762-63 (Minn. App. 1994) (affirming district court’s downward departure based in part on defendant’s remorse), review denied (Minn. Oct. 27, 1994).
Even if we accept appellant’s claims that he was acting in self-defense and that the victim was the aggressor, we will not interfere with the district court’s discretion in this case. A district court is not required to depart when a defendant claims he was not the initial aggressor. See State v. McKissic, 415 N.W.2d 341, 345-46 (Minn. App. 1987) (district court did not abuse discretion by imposing mandatory minimum sentence for crime involving use of firearm, where defendant carried loaded gun with extra ammunition when he went out drinking, and where defendant’s claim of self-defense was unclear).
Indeed, many of the facts in this case negate appellant’s claim of self-defense. Although appellant claimed that the victim came after him with a knife, appellant admitted to police that he had no cuts or stab wounds. In addition, after the victim had thrown appellant out of his house once, appellant returned to the victim’s house two more times to “kick [the victim’s] ass.” On his second return, appellant wore rubber gloves so that he would not harm his own hands. And after knocking the victim down with a fire extinguisher, appellant continued to hit him in the head with it until he no longer got up. Finally, appellant left the victim unattended, did not seek medical attention for him, and did not call the police. The next day, police found the victim dead and bloodied, with his skull caved in. A district court is not required to depart downward, particularly where mitigating factors are counter-balanced by other, aggravating factors. Cf. State v. Barsness, 473 N.W.2d 325, 329 (Minn. App. 1991) (while mitigating factors supported 36-month downward departure from 216-month presumptive sentence, district court not required to depart further where victim’s vulnerability countered much of effect of mitigating factors), review denied (Minn. Aug. 29, 1991).
The district court’s imposition of a presumptive sentence is affirmed.