State v. Burton
507 N.W.2d 842
Minn.
1993
Check Treatment

ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED (1) that the petition of defendant, Freddi Levi Burton, for further review of a decision of the court of appeals be, and the same is, granted and (2) that the decision of the court of appeals affirming defendant’s conviction of second-degree intentional murder is affirmed but the sentence imposed by the trial court for the offense is reduced from 346 months to 180 months.

In State v. Gilbert, 448 N.W.2d 875, 876 (Minn.1989), we affirmed the conviction of a defendant convicted of attempted second-degree intentional murder but reduced the sentence in the interests of justice. We said that while we were unable to conclude that the evidence of actual intent to kill was legally insufficient, “we have concluded that, because of the closeness of the issue, it would serve the interests of justice to reduce defendant’s sentence.” Id. In that case we reduced the sentence to that which would have been imposed if the defendant had been convicted of the lesser offense of attempted third-degree depraved mind murder.

In this case we are unable to conclude that the evidence of actual intent to kill was legally insufficient, but in the interests of justice we reduce the sentence to 180 months. This is the presumptive sentence applicable if the jury had concluded, as it clearly could have, that defendant was guilty of second-degree felony murder in that he intentionally aided the assault on the victim and the victim’s death, although not necessarily actually intended by defendant, resulted from the group assault in which defendant intentionally participated.

In conclusion, the decision of the court of appeals is affirmed as modified; Justice Tomljanovich dissents from that part of our decision reducing defendant’s sentence.

/s/Alexander M. Keith Chief Justice.