(concurring in part and dissenting in part).
I join in affirming the conviction, but I dissent from our affirmance of the upward departure in the sentence and would remand for resentencing.
At the outset, I emphasize that I deplore the criminal conduct of appellant Gordon Douglas Weaver in murdering his wife. Her tragic and horrific death stunned family, friends, and the broader community. Appellant’s dissembling, absconding, and living as a fugitive with a fictitious identity prolonged the prosecution by years. Unfortunately, these criminal proceedings have been protracted. However, we are a society governed by law and must follow the proper process in dealing with miscreants.
Here, the district court found that Weaver believed that his wife had died as a result of her fall and that she was dead when he started the fire. The majority acknowledges the awkward and illogical analysis required to conclude both that Weaver believed that his wife had died as a result of the fall and that his failure to obtain medical assistance constituted particular cruelty. However, from the transcript of the sentencing proceedings, it is clear that the district court viewed this form of cruelty as the primary basis for the upward sentencing departure after both the first and second trials. The majority assumes that this finding of particular cruelty for failure to obtain assistance was error and affirms. I agree with this assumption but conclude that we should remand.
After determining that failure to obtain medical assistance was a substantial and compelling circumstance, the district court, almost as an afterthought, added that Weaver “callously poured accelerant throughout the laundry room and started a fire in an effort to destroy evidence, the home and the body of [J.W.].” It is unclear whether the district court thought that this too was a compelling aggravating circumstance, or what, if any, greater sentence the district court would have imposed on this factor alone. We are left to speculate about these questions.
The district court also did not consider whether the infliction of multiple fire-related injuries on the unconscious victim constituted a substantial, compelling, and aggravating circumstance, or whether it would support an upward departure from the presumptive sentence, or how great a sentencing departure it would support.
Our caselaw does not recognize an expansive role for the court of appeals in determining what the district court would consider an adequate basis for an upward departure and what that departure should be. I submit that we should have a clear and convincing basis for that determination. In State v. Vance, where a sentence was allowed to stand after appellate review, the district court had found three grounds for an upward departure, and on appeal, two of the three bases were upheld. 765 N.W.2d 390, 395-96 (Minn.2009). It is hard for us to divine what a district court judge, faithfully applying the proper law, after a reversal, will conclude is the proper upward departure. We certainly must assume the district court will limit its consideration to proper factors and properly exercise its discretion based on identified factors.
Another dimension of finding that Weaver’s arson-related conduct is a proper basis for an upward-departure factor is the length of the departure. I recognize that if Weaver had been so prosecuted, he could have been convicted of arson as a separate offense and that a concurrent sentence could have been imposed. However, the presumptive sentence for that *578offense is 48 months. Minn. Sent. Guidelines IV-V (2006). It is dramatic to have a 75-month upward departure for a separate offense that presumptively would have a nearly 40% lesser sentence. Although a 75-month arson sentence is possible, I submit that it is beyond the appropriate role of this court to make that decision. This is the province of the district court. Our proper role is to review that decision.
It is significant that the state recommended to this court at oral argument that if we concluded that failure to seek medical assistance did not constitute a valid ground for an upward departure, we should remand for the district court to evaluate the record, determine whether aggravating circumstances were present, and determine the departure warranted. I would accept the state’s recommendation and remand, giving the parties an opportunity for briefing and argument.