Opinion
A23-0173
09-07-2023
State of Minnesota, Respondent, v. Dean Allen Thordor, Appellant.
Freeborn County District Court File No. 24-CR-21-313
Considered and decided by Smith, Tracy M., Presiding Judge; Reyes, Judge; and Bratvold, Judge.
ORDER OPINION
Tracy M. Smith, Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In this appeal from a final judgment of conviction for violating an order for protection (OFP), appellant Dean Allen Thordor challenges his sentence, arguing that the district court erred in calculating his criminal-history score.
2. On March 1, 2021, respondent State of Minnesota charged Thordor with one count of felony stalking pursuant to Minnesota Statutes section 609.749, subdivision 5(a) (Supp. 2019), and two counts of felony violation of an OFP pursuant to Minnesota Statutes section 518B.01, subdivision 14(d)(1) (2018), and section 518B.01, subdivision 14(d)(1) (2020). At a plea hearing, Thordor pleaded guilty to one count of violating an OFP and the state dismissed the remaining two counts.
3. A presentence investigation report (PSI) and sentencing worksheet calculated a criminal-history score of eight and one-half points, which was rounded down to eight. See Minn. Sent'g Guidelines 2.B.1.i (Supp. 2019) (providing that when a defendant's felony-point total includes a partial point, "the point value must be rounded down to the nearest whole number"). Based on the offense severity level of four, the sentencing worksheet yielded a presumptive executed sentence of 30 months with a nondeparture range of 26 to 36 months. See Minn. Sent,'g Guidelines 4.A. (Supp. 2019).
4. At the sentencing hearing, the district court heard from both the victim and Thordor and reviewed Thordor's motion for a downward dispositional departure. The state advocated for a top-of-the-range sentence of 36 months. The district court denied Thordor's motion and imposed the presumptive executed sentence of 30 months, a middle-of-the-range sentence.
5. On appeal, Thordor argues that the district court abused its discretion by sentencing him based on an incorrect criminal-history score. He requests that this court reverse and remand for resentencing. In lieu of a brief, the state filed correspondence stating that it does not object to Thordor being resentenced based on a criminal-history score of seven, as it will not affect the presumptive sentence in this case. Although the state has no objection to resentencing, we independently review the legal issue. See State v. Hannuksela, 452 N.W.2d 668, 673-74 n.7 (Minn. 1990) (stating that "it is the responsibility of appellate courts to decide cases in accordance with law"); see also Minn. R. Civ. App. P. 142.03 (stating that when the respondent does not file a brief, the appeal will be "determined on the merits").
6. The Minnesota Sentencing Guidelines "provide uniform standards for the inclusion and weighting of criminal history information that are intended to increase the fairness and equity in the consideration of criminal history." State v. Reece, 625 N.W.2d 822, 824 (Minn. 2001) (quotation omitted). In a felony case, a defendant's presumptive sentence is determined by the severity of the present offense and the defendant's criminalhistory score. Minn. Sent'g Guidelines 2 (Supp. 2019). As relevant here, a criminal-history score is the "sum of points" that are assigned for prior eligible felony convictions, misdemeanor and gross misdemeanor convictions, and juvenile adjudications. Minn. Sent'g Guidelines 2.B (Supp. 2019). The offender is assigned points for every felony conviction for which a felony sentence was stayed or imposed before the current sentencing. Minn. Sent'g Guidelines 2.B.1 & cmt. 2.B.101 (Supp. 2019). "The State bears the burden of proof at sentencing to show that a prior conviction qualifies for inclusion within the criminal-history score." Williams v. State, 910 N.W.2d 736, 740 (Minn. 2018).
7. We review a district court's determination of a defendant's criminal-history score for an abuse of discretion. State v. Morgan, 953 N.W.2d 729, 732 (Minn.App. 2020), aff'd, 968 N.W.2d 25 (Minn. 2021). We interpret the Minnesota Sentencing Guidelines de novo. See State v. Scovel, 916 N.W.2d 550, 554 (Minn. 2018). "[A]ny sentence based on an incorrect criminal history score is an illegal sentence." State v. Provost, 901 N.W.2d 199, 201 (Minn.App. 2017) (quotation omitted). "When a defendant's sentence is based on an incorrect criminal-history score, [their] case must be remanded for resentencing." State v. Woods, 945 N.W.2d 414, 416-17 (Minn.App. 2020).
8. Thordor argues that it was error to include one and one-half criminal-history points for a 2002 third-degree controlled-substance conviction and sentence because we vacated that sentence on appeal. See State v. Thordor, No. C3-03-111, 2003 WL 22480604, at *3 (Minn.App. 2003), rev denied (Minn. Jan. 20, 2004). Thordor is correct. Because that sentence was vacated before he was sentenced on the current offense, the district court erred by including those one and one-half points in his criminal-history score. See Minn. Sent'g Guidelines 2.B.1 (noting that points may be assigned only to those felony convictions "for which a felony sentence was stayed or imposed before the current sentencing or for which a stay of imposition of sentence was given before the current sentencing"). Thus, Thordor's criminal-history score should be seven.
9. As Thordor asserts, a sentence based on an incorrect criminal-history score is illegal. See Provost, 901 N.W.2d at 201. And, because Thordor's sentence was based on an incorrect criminal-history score, it is illegal. As a result, we reverse and remand for resentencing based on a criminal-history score of seven. See Woods, 945 N.W.2d at 416-17 ("When a defendant's sentence is based on an incorrect criminal-history score, [their] case must be remanded for resentencing.").
As Thordor acknowledges, the presumptive range for his sentence will not change because criminal-history scores of six and above share the same range. Thus, this case is distinguishable from Provost, in which this court recognized that there is a reasonable probability of a different outcome when a corrected criminal-history score yields a different guidelines range. 901 N.W.2d at 202. Nonetheless, because the district court did not sentence Thordor at the bottom of the range and the incorrect criminal-history score could have affected the district court's sentence within the range, we reverse and remand for resentencing.
IT IS HEREBY ORDERED:
1. The district court's judgment is reversed and remanded for resentencing.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.