State of Minnesota v. Michael Jon Underland ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1043
State of Minnesota,
Respondent,
vs.
Michael Jon Underland,
Appellant.
Filed July 7, 2014
Affirmed
Smith, Judge
Kandiyohi County District Court
File No. 34-CR-12-115
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and
Julie Loftus Nelson, Special Assistant State Public Defender, St. Paul, Minnesota (for
appellant)
Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and
Smith, Judge.
UNPUBLISHED OPINION
SMITH, Judge
We affirm appellant’s sentence for his conviction of second-degree assault
because the district court did not abuse its discretion by sentencing appellant to the
maximum time within the presumptive sentencing guidelines range.
FACTS
Appellant Michael Jon Underland stabbed R.G. with a knife, while at an
acquaintance’s residence, and the state charged him with second-degree assault
(dangerous weapon) and third-degree assault (substantial bodily harm). A jury found
Underland guilty as charged.
For his conviction of second-degree assault, the district court sentenced Underland
to 68 months’ incarceration. Based on Underland’s criminal history score of six, this was
the maximum sentence within the presumptive guidelines range. The district court cited
Underland’s refusal to accept responsibility for the assault as its reason for imposing the
maximum presumptive guidelines sentence.
DECISION
We review sentences imposed by a district court for an abuse of discretion. State
v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010).
We “will not generally review a district court’s exercise of its discretion to sentence a
defendant when the sentence imposed is within the presumptive guidelines range.” Id.
We retain the power, however, to modify a sentence within the presumptive range “if the
circumstances warrant.” State v. Kraft, 326 N.W.2d 840, 842 (Minn. 1982).
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Underland acknowledges that his sentence is within the presumptive guidelines
range. But he argues three bases for modification in the interests of justice: (1) his
offense is not more serious than other second-degree assaults; (2) the state offered him a
plea bargain; and (3) the presumptive guidelines range applies to offenders with
Underland’s criminal history score of six as well as those with higher criminal history
scores. Because he offers no support for any of these arguments, they provide no basis
for modification of his sentence. See State v. Wembley, 712 N.W.2d 783, 795 (Minn.
App. 2006) (“An assignment of error in a brief based on mere assertion and not supported
by argument or authority is waived unless prejudicial error is obvious on mere
inspection.”), aff’d on other grounds, 728 N.W.2d 243 (Minn. 2007).
The Minnesota Sentencing Guidelines state that all sentences within the
presumptive guidelines range are “presumed to be appropriate for the crimes to which
they apply.” Minn. Sent. Guidelines 2.D. (Supp. 2011). While the guidelines require that
the district court state its reasons for any departures outside the presumptive range, see
generally id., the guidelines do not require that the district court state any justification for
imposing a sentence within the presumptive guidelines range, see Minn. Sent. Guidelines
2.C. (Supp. 2011). Additionally, we note that the reason Underland’s criminal history
score results in a presumptive sentence that also applies to offenders with much higher
criminal history scores is because Underland’s criminal history score is in the guidelines’
highest category. Underland’s sentence is not unfair, and the district court did not abuse
its discretion by imposing the maximum presumptive guidelines sentence.
Affirmed.
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