Norman County District Court File No. K9-03-336.
A defendant's pre-sentencing statement indicating his willingness to accept his criminal-history score for sentencing does not constitute a waiver relieving the state of its burden to prove by a preponderance of the evidence each alleged out-of-state conviction to be included in the defendant's criminal-history score.
The opinion of the court was delivered by: Ross, Judge
Considered and decided by Randall, Presiding Judge; Minge, Judge; and Ross, Judge.
Brian Lee Maley appeals his 54-month prison sentence imposed after he pleaded guilty to a controlled-substance violation. Maley argues that the district court erroneously considered two out-of-state convictions in calculating his criminal-history score. Because the state's burden to establish a sufficient factual basis for the challenged convictions was neither met nor excused, we reverse and remand for resentencing.
Appellant Brian Lee Maley was in a hotel room in Ada when Norman County sheriff's deputies entered to execute an arrest warrant on a woman who was with Maley. Deputies searched the hotel room, uncovering drug paraphernalia, two bags containing a total of 29 grams of methamphetamine, and 50 grams of a liquid that tested positive for methamphetamine. The state charged Maley in a three-count complaint, alleging that he manufactured, possessed, and conspired to sell a controlled substance.
On October 6, 2004, Maley pleaded guilty to an amended charge of one count of second-degree controlled-substance possession, in violation of Minn. Stat. § 152.022, subd. 2(1) (2002). Maley's counsel told the court that in exchange for the plea, the state would recommend that Maley "receive an executed guideline sentence at the low end of the [sentencing guidelines] box [and] would bear any risk as to his criminal-history score. And we believe it will be zero to two, but he bears that risk." The district court ordered a pre-sentence investigation and scheduled the sentencing hearing for November 10, 2004.
A probation officer conducted the investigation. The resulting sentencing worksheet for Maley listed, without substantiating, four felony-level California convictions--two in 1995 and two in 1999--to apply to Maley's criminal-history score and presumptive sentence, weighting each conviction at .5. At the November 2004 sentencing hearing, Maley's counsel requested a continuance to "look into" a "mistake on the pre-sentence investigation," without specifying the nature of the mistake. The state did not object.
At the continued hearing in December 2004, Maley's counsel told the court that he had twice spoken with the probation officer to request authenticated support for the alleged California convictions:
I talked to [the probation officer] about what my objections were and indicated that we needed the actual records from these counties [in California, where appellant's prior convictions occurred], rather than just [the probation officer's] phone calls and her representations because I thought . . . we needed something in writing [and] something to confirm what [Maley] actually was convicted of and sentenced to in these out-of-state jurisdictions to correctly determine what his criminal history would be.
The state's attorney conceded that the probation officer "had not been able to request [the California records] as of yet." The court continued the sentencing proceeding until January 19, 2005, declaring that if the state failed to produce certified copies of the convictions by ...