Opinion
A21-1639
08-01-2022
Gregory Quinn Holmes, Petitioner, Appellant, v. State of Minnesota, Respondent.
Dakota County District Court File No. 19HA-CR-19-509
Considered and decided by Ross, Presiding Judge; Frisch, Judge; and Florey, Judge. [*]
ORDER OPINION
JENNIFER L. FRISCH JUDGE.
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In February 2019, respondent State of Minnesota charged appellant Gregory Quinn Holmes with felony first-degree driving while impaired, a severity level seven offense. Minn. Stat. §§ 169A.20, subd. 1(1), .24, subd. 1(3)(ii) (2018); see also Minn. Sent. Guidelines 5.A (2018) (setting forth offense severity levels).
Holmes conceded that he had been convicted of a prior felony criminal-vehicle offense, elevating the offense in this case to a first-degree felony. Minn. Stat. § 169A.24, subd. 1(3)(ii) (2018).
2. In August 2019, Holmes entered a plea of guilty, which the district court accepted. The plea agreement provided that at sentencing, Holmes would argue for a downward dispositional departure and the state would argue for an executed guidelines sentence.
3. The presentence investigation report (PSI) and sentencing worksheet both assigned three criminal-history points to Holmes. Of these three points, the PSI and sentencing worksheet each assigned one custody-status point for Holmes's probationary status at the time of the offense. See Minn. Sent. Guidelines 2.B.2.a.1.i (2018); but see Minn. Sent. Guidelines 2.B.2.a (Supp. 2019) (providing only one-half custody-status point by default for being on probation at the time of the offense). The sentencing guidelines provide for a sentence of 46 to 64 months for a severity level seven offense committed with a criminal-history score of three. Minn. Sent. Guidelines 4.A (2018).
4. On November 12, 2019, the district court held a sentencing hearing. The district court determined that the 2018 sentencing guidelines applied and assigned a full custody-status point to Holmes. The district court determined that the 2019 guidelines, under which Holmes would be assigned only one-half custody-status point, did not apply. The district court concluded that Holmes's total criminal-history score was three.
5. The district court then declined to depart from the presumptive sentence set forth in the sentencing guidelines. The district court determined that although Holmes was amenable to treatment in a probationary setting, substantial and compelling reasons did not support a sentencing departure. The district court sentenced Holmes to an executed sentence of 46 months' imprisonment with a five-year conditional-release period.
6. On September 1, 2020, Holmes filed a postconviction petition, arguing that he should have been sentenced with two criminal-history points rather than three. In October 2020, the postconviction court stayed Holmes's petition pending the supreme court's decision in State v. Robinette. In August 2021, the supreme court decided Robinette, holding that under the amelioration doctrine, the one-half-point custody-status change set forth in the 2019 sentencing guidelines applies to criminal defendants sentenced after the 2019 guidelines became effective. 964 N.W.2d 143, 146-48, 151 (Minn. 2021).
7. On September 13, 2021, the postconviction court held a hearing on Holmes's petition. Holmes requested that the postconviction court resentence him to a reduced sentence because his prior sentence was based on an incorrect criminal-history score. Holmes specifically noted that "the law is clear that he must be resentenced now that he does have a new criminal history score." The state conceded that Holmes was incorrectly sentenced with a criminal-history score of three, rather than two. Nonetheless, the state argued that the postconviction court should "reimpose" the original 46-month sentence.
8. The state agreed with the postconviction court that "if [the sentence] was left at 46 months, then there would be no need to resentence other than recognize that it is two criminal history points." Holmes's counsel also agreed that resentencing was unnecessary if the postconviction court declined to reduce the sentence:
COURT: [I]s [Holmes's] position that regardless of what I do we need to do a resentence in light of the change in criminal history? Even if . . . the sentence doesn't change. But do we still need to have a hearing just for the resentence?
COUNSEL: I don't think that we would need to.... [I]f the Court is going to deny our request for sentence change and simply decide that the sentence should stay as it is, I don't think we'd need a formal resentencing.
However, the state then disagreed, stating: "I do think that we need to do a formal resentencing hearing just to ensure that we're complying with any procedures."
9. In October 2021, the postconviction court issued an order denying Holmes's petition. The postconviction court determined that Holmes should have been sentenced with a criminal-history score of two and ordered that the PSI and sentencing worksheet be amended to reflect the correct criminal-history score. Notwithstanding its determination that Holmes was originally sentenced using an incorrect criminal-history score, the postconviction court then ordered that "[t]he 46-month executed sentence originally imposed shall remain in effect." The postconviction court further noted in the order: "Given the Court's rulings it does not intend to schedule a hearing to resentence Petitioner, unless such a request is made by either party." The record does not reflect that Holmes requested a resentencing hearing or that the state reiterated its previous request for a new sentencing hearing.
10. On appeal, Holmes argues that his sentence "must be reduced" because the district court imposed a sentence based on an incorrect criminal-history score and the postconviction court did not reduce that sentence despite the incorrect score. The state concedes that the district court improperly sentenced Holmes with a criminal-history score of three when Holmes should have been sentenced with a criminal-history score of two.
11. We review the denial of a postconviction petition for an abuse of discretion. State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013). A postconviction court abuses its discretion when it misapplies the law, makes findings unsupported by the record, or resolves discretionary questions in a manner contrary to logic and the facts on record. Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017); see also Bender v. Bernhard, 971 N.W.2d 257, 262 (Minn. 2022).
12. Sentencing courts "must use accurate criminal history scores in order to set mandatory presumptive sentences that comply with the Minnesota Sentencing Guidelines." State v. Maurstad, 733 N.W.2d 141, 142 (Minn. 2007). Any "sentence based on an incorrect criminal history score is an illegal sentence" that is "correctable 'at any time.'" Id. at 147 (emphasis added) (quoting Minn. R. Crim. P. 27.03, subd. 9).
13. In State v. Provost, we held that "when a defendant is sentenced based on an incorrect criminal history score, a district court must resentence the defendant." 901 N.W.2d 199, 202 (Minn.App. 2017) (emphasis added). We stated this rule even though the appellant's initial sentence fell within the permissible range of sentences after correcting his criminal-history score. Id.
14. In this appeal, Holmes seeks a change to his sentence based on a reduced criminal-history score. Although Holmes asks us to simply order a reduction in sentence, he cites no authority permitting such action. Alternatively, Holmes asks us to conclude that the postconviction court abused its discretion by not reducing his sentence. Holmes cites Provost for the proposition that "when a guidelines range moves up or down, offenders' sentences tend to move with it." Id. (quoting Molina-Martinez v. United States, 578 U.S. 189, 199 (2016)). But Holmes cites no authority that a sentencing court abuses its discretion when it chooses not to decrease a sentence following the reduction of a defendant's criminal-history score. And we decline to substitute our judgment for the district court's given its broad sentencing discretion. See State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) ("We afford the trial court great discretion in the imposition of sentences and reverse sentencing decisions only for an abuse of that discretion." (quotation omitted)).
15. We instead invoke "the responsibility of appellate courts to decide cases in accordance with law," noting that our "responsibility is not to be diluted by counsel's . . . failure to specify issues." State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990). We will not affirm the imposition of an "illegal" sentence. Maurstad, 733 N.W.2d at 147.
16. We agree with the postconviction court, the state, and Holmes that his current sentence using an incorrect criminal-history score of three is illegal. Upon making this determination, the postconviction court was required to resentence Holmes using the correct criminal-history score, and its failure to do so was an abuse of discretion. We therefore remand to the postconviction court to exercise its discretion in resentencing Holmes using the correct criminal-history score.
IT IS HEREBY ORDERED:
1. The postconviction court's order is reversed and remanded.
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.
[*]Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.