                            This opinion will be unpublished and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                           UNPUBLISHED OPINION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.




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