Opinion
A22-1251
04-28-2023
State of Minnesota, Respondent, v. James Darnell Posey, Appellant.
Ramsey County District Court File No. 62-CR-21-5114
Considered and decided by Segal, Chief Judge; Jesson, Judge; and Bratvold, Judge.
ORDER OPINION
Susan L. Segal, Chief Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Respondent State of Minnesota charged appellant James Posey with violating, in September 2021, a domestic-abuse no-contact order (DANCO). Posey pleaded guilty, and the district court imposed a sentence of 26 months' imprisonment, the low end of the presumptive range for a severity-level four offense with Posey's criminalhistory score of seven points. See Minn. Sent'g Guidelines 4.A. (2020).
2. According to the presentence investigation (PSI), Posey's criminal-history score includes one and one-half points for a 2005 Illinois conviction for controlled-substance crime (manufacture/deliver 1-15 grams of cocaine), which was treated as the Minnesota equivalent of a third-degree controlled-substance crime.
3. Posey argues on appeal that the district court erred by sentencing him using a criminal-history score that included one and one-half points for the Illinois conviction because the state failed to prove that the conviction had "not decayed."
4. "The [sentencing] guidelines direct that out-of-state felony convictions be included in a defendant's criminal-history score." State v. Maley, 714 N.W.2d 708, 711 (Minn.App. 2006); see also Minn. Sent'g Guidelines 2.B.5. (2020) (providing procedure for district court's determination of how to count out-of-state convictions). The state bears the burden of establishing the facts necessary for including an out-of-state conviction in the defendant's criminal-history score. Maley, 714 N.W.2d at 711.
5. A felony conviction must not be used if:
(1) the prior felony sentence or stay of imposition expired or was discharged; (2) a period of fifteen years elapsed after the date of the initial sentence following the prior conviction; and (3) if the prior felony sentence was executed, a period of fifteen years elapsed after the date of expiration of the sentence.Minn. Sent'g Guidelines 2.B.1.c. (2020). If Posey received a stayed sentence for the Illinois conviction, the conviction would have decayed because a period of 15 years elapsed between the initial 2005 sentence and the September 9, 2021 DANCO violation.
6. The PSI states that Posey was: "sentenced to 4 years Illinois DOC, credit 264 days"; "Supervised release 6/15/06"; and "Discharged 6/15/08." This reference in the PSI is the only information in the record related to the Illinois conviction. Posey argues that it is unclear if he received a stayed sentence or an executed sentence for the Illinois conviction, and that the state did not meet its burden to establish that the conviction had not decayed.
7. After Posey's initial brief was filed, this court issued a decision in another appeal by Posey that raised the same issue involving the proper calculation of his criminalhistory score. State v. Posey, No. A22-0691, 2023 WL 1770123 (Minn.App. Feb. 6, 2023). We concluded that "[t]he PSI provided insufficient evidence that Posey received an executed sentence and that his 2005 Illinois conviction had therefore not decayed." Id. at *4. We reversed and remanded for resentencing. Id. at *5.
8. The state has filed correspondence conceding that Posey's sentence should be reversed and remanded for resentencing.
9. A sentence based on an incorrect criminal-history score is an illegal sentence that must be corrected. State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007). Because we have already concluded that the state failed to establish that the 2005 Illinois conviction was properly included in Posey's criminal-history score, and this case presents the identical issue and the same lack of evidence in the record about whether the Illinois conviction had decayed, we reverse and remand for resentencing. Because Posey did not object to his criminal-history score at sentencing, the state is permitted to develop the record on remand to meet its burden to establish that the Illinois conviction is properly included in Posey's criminal-history score. See Posey, 2023 WL 1770123, at *5 (citing State v. Outlaw, 748 N.W.2d 349, 356 (Minn.App. 2008), rev. denied (Minn. July 15, 2008)).
10. Posey also filed a pro se supplemental brief in which he argues that he should not have received a felony criminal-history point for a 2013 conviction for violating an order for protection (OFP). Posey contends that the conviction is not a crime but is instead a family court matter, and it is not a felony because it is his "first OFP violation." The state does not agree that Posey's pro se arguments have merit and asks that this court "again deny" these arguments.
11. Posey's pro se supplemental brief and supporting documents are identical to the brief and documents he filed in appeal A22-0691 in which we concluded that Posey's 2013 conviction for violating an OFP was properly included in his criminal-history score as a felony point because a conviction for violating an OFP is a crime under Minn. Stat. § 518B.01, subd. 14(a) (2012). Posey, 2023 WL 1770123, at *5. And we concluded that Posey was properly convicted of a felony OFP violation because Minn. Stat. § 518B.01, subd. 14(d)(1) (2012), provides for enhancement to a felony if a person violates an OFP "within ten years of the first of two or more previous qualified domestic-violence offense convictions." Id. Posey's PSI indicates that he has three qualifying convictions for domestic-violence offenses: a 2012 DANCO violation, a 2011 terroristic-threats conviction, and a 2010 domestic-assault conviction. See Minn. Stat. §§ 518B.01, subd. 2(c), 609.02, subd. 16 (2012). Posey's criminal-history score therefore properly includes one felony point for his 2013 conviction for violating an OFP.
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.