This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Bryant O’Neil Kenney,




Filed June 26, 2001


Harten, Judge


Ramsey County District Court

File No. K6-98-2589



John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)


            Considered and decided by Harten, Presiding Judge, Foley, Judge,* and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N




            Appellant challenges the order denying his motion for correction of sentence.  Appellant argues that the district court abused its discretion in re-imposing the original 360-month sentence after making a downward correction in his criminal history score.  Appellant contends that the district court’s refusal to adjust the sentence duration makes his criminal history score irrelevant and unlawfully increases the degree of departure.  We affirm.


On the morning of June 29, 1998, appellant Bryant O’Neil Kenney bought $20 worth of crack cocaine from Desmond Davis.  Sometime later, after having consumed the crack cocaine along with some marijuana and brandy, appellant encountered Davis again and gave him $50 for more crack cocaine.  Appellant waited for about an hour, but Davis did not return with the crack cocaine.  Toward early evening as Davis was getting into his car, appellant entered the car on the passenger side and asked Davis about his crack cocaine as Davis began to drive.

While Davis was driving, appellant pulled out a knife and stabbed Davis in the chest.  Davis stopped the car and attempted to flee, but appellant chased him and stabbed him again in the back, causing Davis to fall to the ground.  Appellant returned to the car and drove it a short distance, before he ran back to where Davis was lying in the grass.  Appellant stabbed Davis seven more times in the back.  Appellant then searched Davis and took three pieces of crack cocaine before leaving. 

            Paramedics were called to the scene and transported Davis to Regions Hospital where he later died.  The medical examiner’s office reported that Davis died due to exsanguination (blood loss), caused by a stab wound to the chest that perforated his heart and right lung.  The autopsy revealed Davis had been stabbed nine times, once fatally in the chest and eight more times in the back.

            After appellant was arrested on an unrelated burglary charge, he voluntarily contacted the police homicide unit, was identified by witnesses, and confessed to the stabbing.  The state charged appellant with second-degree unintentional murder in violation of Minn. Stat. § 609.19, subd. 2(1) (1996).  The district court accepted appellant’s guilty plea and adjudged him guilty of murder in the second degree. 

Based on a criminal history score of five, appellant’s presumptive sentence for second-degree murder was determined to be an executed prison term of 225 months.  The state sought an upward departure to 360 months.  Finding that the nature of appellant’s offense was significantly more serious than the typical unintentional murder, the district court sentenced appellant to 360 months.

Appellant filed a direct appeal, and then asked that it be dismissed so he could pursue a motion requesting that his criminal history score be corrected and, correspondingly, that his sentence be reduced pursuant to Minn. R. Crim. P. 27.03, subd. 9.  The district court reduced appellant’s criminal history score from five to three-and-one-half, but re-imposed the original sentence of 360 months.  The district court declared that regardless of the change in appellant’s criminal history score, appellant’s actions during the commission of the crime had convinced the district court that a 360-month sentence was appropriate.  This appeal followed.


            The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  Generally, in determining whether to depart durationally, a district court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.”  State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).  Departures from presumptive sentences are reviewed under an abuse of discretion standard, but there must be substantial and compelling circumstances in the record to justify a departure.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  “Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the Sentencing Guidelines maximum presumptive sentence duration.”  State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988) (citation omitted).

Appellant contends that the district court abused its discretion in refusing to reduce his sentence from 360 months to 317 months after correcting his criminal history score.  In State v. Hatton, 409 N.W.2d 854, 856 (Minn. 1987), a trial court originally imposed a sentence of 130 months, an upward double durational departure from the presumptive sentence of 65 months, obtained after determining that Hatton’s criminal history score was two.  On resentencing Hatton after learning that his correct criminal history score was one, the district court re-imposed the 130-month sentence on the ground that his conduct merited that great a departure.  Id.  Hatton appealed, arguing that because the maximum presumptive guidelines sentence had become 58 months, his sentence should be reduced to 116 months to reflect the double departure that he had originally received.  Id.  The supreme court held that because the facts justified a greater-than-double departure, the district court was free to impose a sentence equal to but not greater than Hatton’s original 130-month sentence after correcting his criminal history score.  Id.

In the instant case, appellant argues that the “reduction of [his] criminal history score by two full points was by itself sufficient reason why his sentence should have been reduced” and that by correcting his criminal history score, but nonetheless re-imposing the original sentence, the district court “effectively increased the extent of the departure from 62.5 percent to 84.6 percent.”  (Emphasis omitted.)  Applying Hatton, however, as long as the upward departure was justified, the district court was free to re-impose appellant’s original sentence of 360 months.  Id. at 856.

In a memorandum accompanying its order granting appellant’s motion to reduce his criminal history score but denying appellant’s motion to reduce his sentence, the district court justified its position as follows:

I determined that an upward durational departure was appropriate because of substantial and compelling circumstances making this act more serious than those in the typical crime at issue.  Those circumstances were that the victim was particularly vulnerable during the last two attacks that [appellant] made upon him because he was already severely wounded and on the ground bleeding when [appellant] stabbed him seven more times, and that [appellant] treated the victim with particular cruelty by inflicting multiple stab wounds, failing to render assistance, and actively attempting to discourage others from rendering assistance.  


                        * * * *


            The decision to sentence [appellant] to 360 months was not based on a mathematical calculation that [appellant’s] conduct had been 62.50% worse than the typical crime at issue.  Rather the particular facts of this case in the actions of [appellant] during the commission of this crime convinced me that a sentence of 360 months was the suitable sentence.


            [Appellant] has shown no sufficient reason why this sentence is no longer suitable.  The facts of this case have not changed merely because [appellant’s] criminal history score has changed.  Mr. Davis died by the actions of [appellant], actions carried out with particular cruelty and disregard for his victim.  Additionally, even with a criminal history score of three, 360 months is less than the double durational departure that could have been imposed in this case.


            In support of his argument that the district court abused its discretion, appellant relies on Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 2447, 2461 (1990), citing the following language:

A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.


Cooter & Gell is a civil antitrust case involving the district court’s imposition of sanctions pursuant to rule 11 of the Federal Rules of Civil Procedure.  In the instant case, the district court did not base its decision on an erroneous view of the law or on a clearly erroneous assessment of the evidence.  The district court reviewed all of the facts and then applied the law based on Hatton.  The district court found substantial and compelling circumstances and cited several aggravating factors to support the upward durational departure.  We agree with the district court that the facts of this case justified the upward durational departure.

Because the district court did not abuse its discretion in re-imposing appellant’s original sentence, we affirm.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.