Opinion
No. C5-84-1377.
October 9, 1984.
Appeal from the District Court, Ramsey County, J. Jerome Plunkett, J.
Hubert H. Humphrey, III, Atty. Gen., State of Minn., Thomas Foley, Ramsey County Atty., Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.
C. Paul Jones, Minn. State Public Defender, Minneapolis, for appellant.
Considered and decided by POPOVICH, C.J., and SEDGWICK and LANSING, JJ., with oral argument waived.
OPINION
This is a sentencing appeal. John Ernest Kisch pleaded guilty to second degree felony murder for the beating death of a 12-year-old boy. He was sentenced to prison for 150 months, a departure from the presumptive sentence of 116 months. The Minnesota Supreme Court affirmed the upward departure of his sentence in State v. Kisch, 346 N.W.2d 130 (Minn. 1984), because of the vulnerability of the victim and the brutal nature of the killing.
The November 1, 1983, changes in the Minnesota Sentencing Guidelines reduced the presumptive sentence for appellant's crime to 105 months. Appellant asked the trial court to reduce his original sentence proportionally; i.e., appellant argued that because the presumptive sentence had been reduced from 116 to 105 months, his sentence should similarly be reduced from 150 to 136 months. The trial court refused to reduce the sentence.
The trial court could have proportionally reduced the sentence but it chose not to, maintaining the 50 percent upward departure based on the aggravating factors already approved in the Supreme Court affirmance. Kisch, 346 N.W.2d at 133. We will not upset the court's exercise of discretion in this case.
Affirmed.