The reduction of the criminal history score for presumptive consecutive sentences, as provided by Minnesota Sentencing Guidelines II.F, does not apply to the mandatory consecutive sentences for repeat DWIs required by Minn. Stat. § 169A.28 (2004).
Affirmed in part, reversed in part, and remanded for resentencing.
The opinion of the court was delivered by: Meyer, Justice.
Heard, considered, and decided by the court en banc.
In this appeal, we are asked to construe the meaning of Minn. Stat. § 169A.28, subd. 1 (2004), which provides for mandatory consecutive sentencing for a felony driving while impaired (DWI) conviction where a defendant's sentence on a prior gross misdemeanor DWI offense is executed at the time of sentencing for the felony DWI. Respondent Frank E. Holmes was on probation for a prior gross misdemeanor DWI offense when he was convicted of felony DWI. The district court imposed consecutive sentences, did not downwardly amend Holmes' criminal history score, and sentenced Holmes to 66 months in prison on the felony DWI, the presumptive sentence for a felony DWI offender with a criminal history score of five. The court of appeals vacated Holmes' 66-month sentence, concluding that Holmes' criminal history score should be amended downward to one, and remanded for resentencing. We reverse the court of appeals in part, and remand to the district court for resentencing.
Holmes was arrested on September 29, 2003, after a traffic accident in Brainerd, Minnesota. At the time of the accident, Holmes was on probation for a prior gross misdemeanor DWI under Minn. Stat. § 169A.25 (2000).*fn1 He was charged by complaint with felony first-degree DWI under Minn. Stat. § 169A.20, subd. 1(1) (2004), and Minn. Stat. § 169A.24 (2004),*fn2 and felony first-degree refusal to submit to chemical testing under Minn. Stat. § 169A.20, subd. 2 (2004), and Minn. Stat. § 169A.24.*fn3 After a one-day trial, the jury found Holmes guilty of both felony counts. Felony DWI under Minn. Stat. § 169A.24 is a severity level seven offense, see Minn. Sent. Guidelines IV, V, and the presentence investigation produced a criminal history score of five for Holmes, including one custody status point.*fn4 The presumptive sentence for the felony was 66 months of imprisonment. Minn. Sent. Guidelines IV.
On March 22, 2004, the district court imposed a 66-month executed sentence to be served consecutively to Holmes' previously imposed one-year sentence on the gross misdemeanor DWI, followed by five years on conditional release.*fn5 The next day, the court found that Holmes' felony DWI conviction constituted a violation of his probation on the gross misdemeanor DWI. The court ordered the one-year gross misdemeanor sentence executed consecutively to the 66-month felony DWI sentence that had been imposed the previous day (switching the imposed order of service of the sentences). The court also found Holmes in violation of his probation on two other convictions, and ordered the sentences executed concurrently with the previously imposed sentences.
Holmes appealed to the court of appeals on several issues, and the court of appeals determined that: (1) the district court erred in ordering the executed gross misdemeanor sentence to run consecutively to the felony sentence, instead of the other way around; (2) the statutorily mandated consecutive sentence for the felony DWI should be considered presumptively consecutive as defined by Minnesota Sentencing Guidelines II.F because the consecutive sentence was mandatory; and (3) section II.F should be applied, reducing Holmes' criminal history score to one to produce a presumptive 42-month stayed felony sentence. State v. Holmes, 701 N.W.2d 267, 272-73 (Minn. App. 2005). The state appealed, and we granted review.*fn6
Statutory construction and interpretation of the sentencing guidelines are subject to de novo review by this court. State v. Zeimet, 696 N.W.2d 791, 793 (Minn. 2005). "The object of statutory interpretation is to determine and effectuate legislative intent," and "[t]he ambit of an ambiguous criminal law should be construed narrowly according to the rule of lenity." Id.
Holmes was convicted of driving while impaired under Minn. Stat. § 169A.20 (2002 & Supp. 2003). He was on probation for a prior DWI offense and, therefore, was subject to a mandatory consecutive sentence under subdivision 1 of section 169A.28, which states in relevant part:
The court shall impose consecutive sentences when it sentences a person for:
(2) a violation of section 169A.20 when the person, at the time of sentencing, is on probation for, or serving, an executed sentence for a violation of section 169A.20 * * * and the prior sentence involved a separate course of conduct * * *.
Minn. Stat. § 169A.28, subd. 1. Holmes was sentenced to 66 months in prison, the presumptive sentence for a felony DWI offender with a criminal history score of five. The district court executed Holmes' one-year ...