How Did Kim Potter Get a Downward Departure in Minnesota and How Can You?

As Kim Potter sat in a courtroom in Minneapolis and waited for Judge Regina Chu to sentence her, it was reasonable to expect that she would serve eight years in prison. After all, according to the Minnesota Sentencing Guidelines, if convicted of 1st degree manslaughter, she could expect to serve 8 years while being convicted of 2nd degree manslaughter, she could expect to serve 4 years. 

How Did Kim Potter Avoid an Upward Departure in Minnesota and How Can You?

Of course, those are the guidelines and there are a whole series of factors that could drive those sentences in one direction or the other. So how did she get two yers? More importantly for you, how can you get it? Well, having an experienced criminal defense attorney by your side at this crucial phase could change everything.  Contact Jack Rice Defense for a free confidential consultation.  

What exactly are Minnesota Sentencing Guidelines?

In Minnesota, more than 95% of all felony level offenses are sentenced according to a grid system established by the Minnesota Sentencing Guidelines Commission.  The way the Minnesota Sentencing Guidelines Commission makes these decisions is by assigning a ranking of one to ten to each crime based upon severity level. They then determine a criminal history score based upon prior convictions, type of conviction, probationary status and more.  Finally, the Minnesota Sentencing Guidelines Commissions creates a grid system where the criminal history score and the crime severity level intersect. While each box is assigned a number, it also contains a range, i.e. 150 and 128-180.  These represent the number of months one might expect to serve in prison. However, the Judge could sentence to anywhere within that range without any justification whatsoever. Of course, under some circumstances, there may be ways to lower that prison sentence or even avoid prison altogether.  This is called a downward departure.  As you can see, this is not simple and it takes an experienced hand to make sure that it is done properly.  

How Can You Get a Downward Departure?  

There are generally two ways to get a downward departure for felonies in Minnesota., a downward dispositional departure and a downward durational departure.

What is a Downward Dispositional Departure?

In a criminal conviction in which the guidelines call for a presumptive prison commit, a downward dispositional departure allows the Court to stay all of the prison time. In other words, the person actually doesn’t go to prison. Of course, they could face up to 1 year in the local workhouse and additional consequences of probation.  Nevertheless, the remainder of the time is stayed. Therefore, assuming the person fulfills all of their probational obligations , they will never see the inside of a prison cell.  On the other hand, a violation could result in a prison commit.  

In order get a downward dispositional departure, there are multiple factors that the Court may consider.  These factors include:

  • Age of the person;

  • Lack of criminal record;

  • Amenable to probation;

  • Amenable to treatment;

  • Support of community, family, friends;

  • Fulfilling restitution requirements;

  • Remorse;

  • Taking responsibility;

  • Willingness to plead guilty or more.

Generally, when seeking a downward dispositional departure, the facts and circumstances are based more upon the person themselves and their general situation rather than the role they played in the crime. 

What is a Downward Durational Departure?

In a criminal conviction in which the Minnesota Sentencing Guidelines call for a presumptive prison commit, the guidelines call for a specific time or range of time to serve in prison.  With a downward durational departure, the Judge could decide under very specific circumstances to sentence the person to less time than the guidelines suggest. As in the example above where in one grid, the number was 150 with a range of 128-180, the Court could determine to send the person to prison but that number would be anywhere between 12 months and a day to less than than 128 months.  Generally, in order for the Court to depart durationally, they must conclude one of several factors,  These factors include:

  • The person played a minor or passive role in the commission of the crime;

  • The Victim was the aggressor in the crime; or

  • The Crime was less onerous than usual

Unlike dispositional departures, in order to get a durational departure, it is more about the kind of crime that was committed and the role in which the person played in the commission of that crime.  

According to Judge Chu in the Kim Potter trial, the court focused less on her background and more on the shooting being a mistake and unintentional and was therefore less onerous than the typical manslaughter charge. Hence, she determined that 24 months, a downward durational departure, was more appropriate.  

As it is clear, sentencings can be extraordinarily complex. The potential for a misstep is obvious. The problem is that a misstep can add years in a prison cell to a sentence  Therefore, this is not the time to bring in an attorney without the proper experience to handle such a critical task.

Jack Rice is a St. Paul, Minnesota based criminal defense attorney, former prosecutor, former U.S. Federal Agent, Board Certified Criminal Law Specialist and Founder of Jack Rice Defense.  Jack has handled thousands of sentences in his career so he isn’t just trying to wing it when he stands beside his clients. If you are facing serious charges or a serious sentencing, contact Jack Rice Defense for a free confidential consultation or call 651-447-7650 or 612-227-1339. Jack’s got your back.

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How Did Kim Potter Avoid an Upward Departure in Minnesota and How Can You?