This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1242
State of Minnesota, Respondent,
vs.
William Heminchi Underhill, Appellant.
Filed June 27, 2016 Affirmed Reilly, Judge
Scott County District Court File Nos. 70-CR-14-5774, 70-CR-14-8297
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Shakopee, Minnesota (for respondent)
Bradford Colbert, Legal Assistance To Minnesota Prisoners, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Reilly, Judge; and Jesson,
Judge.
UNPUBLISHED OPINION
REILLY, Judge
Pursuant to a plea bargain on consolidated files, appellant pleaded guilty to burglary
in the first degree, Minn. Stat. § 609.582, subd. 1(b), and aiding and abetting attempted intentional murder in the second degree, Minn. Stat. § 609.19, subd. 1(b). Appellant
challenges (1) his 108-month sentence, arguing it should be remanded for resentencing
because it is not commensurate with his “equally culpable” codefendants and (2) the order
imposing $51,797.49 in restitution, arguing the district court erred by failing to consider
his ability to pay. Because the district court did not abuse its discretion in sentencing and
did not err in imposing restitution, we affirm.
FACTS
In February 2014, appellant William Heminchi Underhill burglarized a home in
Scott County with A.K. Appellant entered through a sliding glass door and, although he
did not have a weapon with him when he entered, stole firearms from the home. Based on
these events (hereafter the burglary), appellant was charged with burglary in the first degree
while in possession of a dangerous weapon, Minn. Stat. § 609.582, subd. 1(b), and burglary
in the second degree, Minn. Stat. § 609.582, subd. 2(a)(1).
A few months later appellant conspired to burglarize a different home in Scott
County with three other individuals, codefendants E.M., I.B., and M.N. The home was
targeted because E.M. had a previous relationship with the homeowners. In the early
morning hours, they approached the home and appellant took a “planter” that was sitting
outside of the home and threw it through a large glass window to enter the residence.
Appellant, I.B., and M.N. went inside the home, and E.M. remained outside. I.B. brought
a loaded firearm. The home was occupied by two adult homeowners, B.D.R. and B.M.R.
Appellant entered the master bedroom and encountered B.D.R. Shortly thereafter I.B. shot
his firearm four times at B.D.R. but missed each time. Based on these events (hereafter
2 the attempted murder) appellant was charged with one count of aiding and abetting
attempted intentional murder in the second degree, Minn. Stat. §§ 609.19, subd. 1(1),
609.17 subd. 1, and four other felony counts of aiding and abetting first-degree burglary
and aiding and abetting second-degree assault.
The court consolidated the files from the burglary and the attempted murder and the
parties reached a plea agreement resolving all charges against appellant.1 Pursuant to the
agreement appellant pleaded guilty to aiding and abetting attempted intentional murder in
the second degree, and the state sought a 108-month sentence and restitution. A 108-month
sentence is a downward durational departure. See Minn. Sent. Guidelines IV.A (2015).
Appellant also pleaded guilty to burglary in the first degree while possessing a dangerous
weapon. The state sought a 58-month sentence to run concurrent with the attempted
murder sentence and restitution. In exchange for the state seeking a downward durational
departure, appellant agreed to provide honest and truthful testimony against any and all of
his codefendants if their cases proceeded to trial.
The district court sentenced appellant pursuant to the terms of the parties’ plea
agreement. For the attempted murder conviction, the district court ordered appellant to pay
restitution in the amount of $4,636.62, jointly and severally with the codefendants. For the
burglary conviction, the state sought $51,797.49 in restitution, jointly and severally with
his codefendant in that case. At the sentencing hearing, defense counsel had not yet
received a copy of the restitution study, but stated:
1 The parties also resolved charges in two gross misdemeanor cases.
3 I can comment on Mr. Underhill’s ability to pay 51,000 dollars. I think that’s an incredible stretch given his background, the trials that he’s had growing up, and his ability to earn a wage in prison. And the potential after being released to be ever able to make that payment. And we’d ask for a substantially reduced restitution order.
The court ordered appellant pay the full restitution amount requested by the state.
This appeal follows.
DECISION
I.
Appellant challenges his sentence for the attempted murder conviction and argues
that the trial court erred by imposing a sentence of 108 months where his codefendants
received lesser sentences. “We afford the [district] court great discretion in the imposition
of sentences and reverse sentencing decisions only for an abuse of that discretion.” State
v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). The sentence at issue
on appeal was imposed as a part of the court’s acceptance of the parties’ negotiated plea
agreement. See Minn. R. Crim. P. 15.04, subd. 3(1) (noting that “the trial court judge must
reject or accept the plea of guilty on the terms of the plea agreement”). “[A] challenge to
a sentence imposed as part of a plea agreement involves more than simply the sentence.”
State v. Coles, 862 N.W.2d 477, 480 (Minn. 2015). Here, appellant challenges only one
portion of the negotiated agreement.
Appellant asserts he is “equally culpable” with his codefendants and requests that
this court reverse and remand for resentencing “in the interest of fairness and uniformity.”
State v. Williams, 337 N.W.2d 387, 390 (Minn. 1983). Codefendant E.M., who did not
4 enter the home, pleaded guilty to aiding and abetting first-degree burglary and received a
sentence of 93 months in prison. Codefendant M.N., a juvenile certified as an adult with a
criminal history score of zero, pleaded guilty to aiding and abetting first-degree burglary
and received a sentence of 82 months in prison. Codefendant I.B., who brought and fired
the gun, was convicted of attempted murder and was sentenced to 183 months in prison. It
appears appellant’s sentence of 108 months is commensurate with his culpability compared
to his codefendants given that he threw the planter through the window and physically
encountered the homeowner during the offense but did not bring or fire a gun. Further,
two of appellant’s codefendants pleaded guilty and were convicted of burglary, not
attempted murder. “We note that there is nothing more unequal than to treat unequal things
equally.” State v. Starnes, 396 N.W.2d 676, 681-82 (Minn. App. 1986).
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1242
State of Minnesota, Respondent,
vs.
William Heminchi Underhill, Appellant.
Filed June 27, 2016 Affirmed Reilly, Judge
Scott County District Court File Nos. 70-CR-14-5774, 70-CR-14-8297
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Shakopee, Minnesota (for respondent)
Bradford Colbert, Legal Assistance To Minnesota Prisoners, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Reilly, Judge; and Jesson,
Judge.
UNPUBLISHED OPINION
REILLY, Judge
Pursuant to a plea bargain on consolidated files, appellant pleaded guilty to burglary
in the first degree, Minn. Stat. § 609.582, subd. 1(b), and aiding and abetting attempted intentional murder in the second degree, Minn. Stat. § 609.19, subd. 1(b). Appellant
challenges (1) his 108-month sentence, arguing it should be remanded for resentencing
because it is not commensurate with his “equally culpable” codefendants and (2) the order
imposing $51,797.49 in restitution, arguing the district court erred by failing to consider
his ability to pay. Because the district court did not abuse its discretion in sentencing and
did not err in imposing restitution, we affirm.
FACTS
In February 2014, appellant William Heminchi Underhill burglarized a home in
Scott County with A.K. Appellant entered through a sliding glass door and, although he
did not have a weapon with him when he entered, stole firearms from the home. Based on
these events (hereafter the burglary), appellant was charged with burglary in the first degree
while in possession of a dangerous weapon, Minn. Stat. § 609.582, subd. 1(b), and burglary
in the second degree, Minn. Stat. § 609.582, subd. 2(a)(1).
A few months later appellant conspired to burglarize a different home in Scott
County with three other individuals, codefendants E.M., I.B., and M.N. The home was
targeted because E.M. had a previous relationship with the homeowners. In the early
morning hours, they approached the home and appellant took a “planter” that was sitting
outside of the home and threw it through a large glass window to enter the residence.
Appellant, I.B., and M.N. went inside the home, and E.M. remained outside. I.B. brought
a loaded firearm. The home was occupied by two adult homeowners, B.D.R. and B.M.R.
Appellant entered the master bedroom and encountered B.D.R. Shortly thereafter I.B. shot
his firearm four times at B.D.R. but missed each time. Based on these events (hereafter
2 the attempted murder) appellant was charged with one count of aiding and abetting
attempted intentional murder in the second degree, Minn. Stat. §§ 609.19, subd. 1(1),
609.17 subd. 1, and four other felony counts of aiding and abetting first-degree burglary
and aiding and abetting second-degree assault.
The court consolidated the files from the burglary and the attempted murder and the
parties reached a plea agreement resolving all charges against appellant.1 Pursuant to the
agreement appellant pleaded guilty to aiding and abetting attempted intentional murder in
the second degree, and the state sought a 108-month sentence and restitution. A 108-month
sentence is a downward durational departure. See Minn. Sent. Guidelines IV.A (2015).
Appellant also pleaded guilty to burglary in the first degree while possessing a dangerous
weapon. The state sought a 58-month sentence to run concurrent with the attempted
murder sentence and restitution. In exchange for the state seeking a downward durational
departure, appellant agreed to provide honest and truthful testimony against any and all of
his codefendants if their cases proceeded to trial.
The district court sentenced appellant pursuant to the terms of the parties’ plea
agreement. For the attempted murder conviction, the district court ordered appellant to pay
restitution in the amount of $4,636.62, jointly and severally with the codefendants. For the
burglary conviction, the state sought $51,797.49 in restitution, jointly and severally with
his codefendant in that case. At the sentencing hearing, defense counsel had not yet
received a copy of the restitution study, but stated:
1 The parties also resolved charges in two gross misdemeanor cases.
3 I can comment on Mr. Underhill’s ability to pay 51,000 dollars. I think that’s an incredible stretch given his background, the trials that he’s had growing up, and his ability to earn a wage in prison. And the potential after being released to be ever able to make that payment. And we’d ask for a substantially reduced restitution order.
The court ordered appellant pay the full restitution amount requested by the state.
This appeal follows.
DECISION
I.
Appellant challenges his sentence for the attempted murder conviction and argues
that the trial court erred by imposing a sentence of 108 months where his codefendants
received lesser sentences. “We afford the [district] court great discretion in the imposition
of sentences and reverse sentencing decisions only for an abuse of that discretion.” State
v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). The sentence at issue
on appeal was imposed as a part of the court’s acceptance of the parties’ negotiated plea
agreement. See Minn. R. Crim. P. 15.04, subd. 3(1) (noting that “the trial court judge must
reject or accept the plea of guilty on the terms of the plea agreement”). “[A] challenge to
a sentence imposed as part of a plea agreement involves more than simply the sentence.”
State v. Coles, 862 N.W.2d 477, 480 (Minn. 2015). Here, appellant challenges only one
portion of the negotiated agreement.
Appellant asserts he is “equally culpable” with his codefendants and requests that
this court reverse and remand for resentencing “in the interest of fairness and uniformity.”
State v. Williams, 337 N.W.2d 387, 390 (Minn. 1983). Codefendant E.M., who did not
4 enter the home, pleaded guilty to aiding and abetting first-degree burglary and received a
sentence of 93 months in prison. Codefendant M.N., a juvenile certified as an adult with a
criminal history score of zero, pleaded guilty to aiding and abetting first-degree burglary
and received a sentence of 82 months in prison. Codefendant I.B., who brought and fired
the gun, was convicted of attempted murder and was sentenced to 183 months in prison. It
appears appellant’s sentence of 108 months is commensurate with his culpability compared
to his codefendants given that he threw the planter through the window and physically
encountered the homeowner during the offense but did not bring or fire a gun. Further,
two of appellant’s codefendants pleaded guilty and were convicted of burglary, not
attempted murder. “We note that there is nothing more unequal than to treat unequal things
equally.” State v. Starnes, 396 N.W.2d 676, 681-82 (Minn. App. 1986).
Further, appellant’s sentence was a downward durational departure and “equality
and fairness in sentencing involve more than comparing the sentence the appealing
defendant received with the sentence his accomplices received. It also involves comparing
the sentence of the defendant with those of other offenders.” State v. Vazquez, 330 N.W.2d
110, 112 (Minn. 1983). We conclude that the district court did not abuse its wide discretion
in sentencing appellant.
II.
Appellant argues the district court erred in imposing $51,797.49 in restitution
without considering appellant’s financial circumstances. “[T]rial courts are given broad
discretion in awarding restitution.” State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999).
One of the factors a district court “shall consider” in imposing restitution is “the income,
5 resources, and obligations of the defendant.” Minn. Stat. § 611A.045, subd. 1(a)(2) (2014).
There is no direction in the statute as to how the district court shall consider each factor;
however, “Minnesota courts have upheld restitution orders even when the appellant may
not be able to pay the restitution amount.” State v. Alexander, 855 N.W.2d 340, 344 (Minn.
App. 2014). Although the district court is required to consider a defendant’s ability to pay,
courts have “wide flexibility to structure restitution orders.” State v. Maidi, 537 N.W.2d
280, 285-86 (Minn. 1995) (affirming a restitution order that was mathematically impossible
for the appellant to pay).
Appellant cites State v. Miller, and asserts “the district court cannot completely fail
to consider the defendant’s ability to pay.” 842 N.W.2d 474, 479 (Minn. App. 2014),
review denied (Apr. 15, 2014). However, here, appellant argued to the district court that
he did not have the ability to pay and the presentence investigation addressed the factors
relevant to appellant’s ability to pay restitution. The record indicates the trial court was
made aware of appellant’s financial situation before it ordered appellant to pay restitution.
See State v. Jola, 409 N.W.2d 17, 20 (Minn. App. 1987) (affirming a restitution award
where no specific findings were made on the defendant’s ability to pay and noting “[t]he
purpose of restitution is to compensate the victim”). As such, the district court did not
abuse its discretion in awarding restitution.
Affirmed.