Opinion
A23-0504
12-18-2023
State of Minnesota, Respondent, v. Benjamin Woodrow West, Appellant.
Chippewa County District Court File No. 12-CR-21-701
Considered and decided by Segal, Chief Judge; Slieter, Judge; and Larson, Judge.
ORDER OPINION
Susan L. Segal, Chief Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In this appeal from a final judgment of conviction for first-degree burglary, appellant Benjamin Woodrow West asks this court to reverse and remand for resentencing because he was sentenced with an incorrect criminal-history score. Respondent State of Minnesota filed correspondence in lieu of a brief indicating it agrees that this matter should be remanded for resentencing.
2. The state charged West in Chippewa County with two counts of first-degree burglary, one count of second-degree burglary, and one count of gross-misdemeanor domestic assault for an incident that occurred in December 2021. West pleaded guilty to one count of first-degree burglary involving an assault, in violation of Minn. Stat. § 609.582, subd. 1(c) (2020), with the state's agreement to dismiss the remaining counts of the complaint and to recommend a sentence at the bottom of the presumptive range of the sentencing guidelines.
3. The district court accepted the plea and ordered a sentencing worksheet, which showed that West had a criminal-history score of six points. The district court imposed a sentence of 92 months' imprisonment, the bottom of the presumptive range for first-degree burglary involving an assault, a severity-level eight offense, with a criminal-history score of six. Minn. Sent'g Guidelines 4.A. (Supp. 2021).
4. West argues the district court abused its discretion by sentencing him with a criminal-history score of six points because the score included (a) a half felony point for a 2016 fifth-degree controlled-substance crime, where the state failed to prove, and the district court failed to find, that the crime was properly treated as a felony rather than a gross misdemeanor under the 2016 Drug Sentencing Reform Act (DSRA); and (b) two and one-half felony points for South Dakota convictions where the state did not prove, and the district court did not find, that the offenses would have been felonies if committed in Minnesota and that the offenses were from different behavioral incidents.
5. West concedes that he did not argue at the sentencing hearing that his criminal-history score was incorrectly calculated. Nevertheless, "because a sentence based on an incorrect criminal history score is an illegal sentence," West can raise this issue for the first time on direct appeal. State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007).
6. "We review determinations of a defendant's criminal history score for abuse of discretion." State v. Edwards, 900 N.W.2d 722, 727 (Minn.App. 2017), aff'd mem., 909 N.W.2d 594 (Minn. 2018). "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. West raised the identical sentencing issues in an appeal from the final judgment of conviction for a burglary he committed on December 10, 2021. State v. West, No. A22-1341, 2023 WL 6206199 (Minn.App. Sept. 25, 2023). We concluded that the state had failed to prove that West's 2016 conviction of fifth-degree controlled-substance crime was properly classified as a felony-for which he could receive a half felony point- at the time of his 2021 offense. Id. at *5 (citing State v. Strobel, 921 N.W.2d 563, 574 (Minn.App. 2018), aff'd, 932 N.W.2d 303 (Minn. 2019)). We also concluded that "[t]he record does not show that the state laid any foundation for the South Dakota convictions" to prove that they were properly considered in calculating his criminal-history score. Id.; see also State v. Maley, 714 N.W.2d 708, 711 (Minn.App. 2006); Minn. Sent'g Guidelines 2.B.5. (Supp. 2021).
8. Here, the state likewise failed to prove at sentencing that West's criminal-history score properly included points for these convictions. The district court therefore abused its discretion in sentencing West with a criminal-history score of six points.
9. The appropriate remedy when a defendant does not challenge his criminal-history score at the time of sentencing is to reverse and remand for further proceedings in which the state "is permitted to further develop the sentencing record so that the district court can appropriately make its determination." State v. Outlaw, 748 N.W.2d 349, 356 (Minn.App. 2008), rev. denied (Minn. July 15, 2008). This was the remedy we applied in West when we reversed and remanded for resentencing. West, 2023 WL 6206199, at *6.
10. Consistent with our decisions in Outlaw and West, the state should have an opportunity on remand to introduce evidence to satisfy its burden of proof with respect to the proper calculation of West's criminal-history score.
IT IS HEREBY ORDERED:
1. The district court's judgment is reversed, and this matter is remanded for proceedings consistent with this opinion.
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.