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State v. Provost

Court of Appeals of Minnesota

August 14, 2017

State of Minnesota, Respondent,
v.
Shawn Michael Provost, Appellant.

         Meeker County District Court File No. 47-CR-15-234

          Lori Swanson, Attorney General, St. Paul, Minnesota; and Brandi Schiefelbein, Meeker County Attorney, John P. Fitzgerald, Assistant County Attorney, Litchfield, Minnesota (for respondent).

          Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for appellant).

          Considered and decided by Bjorkman, Presiding Judge; Hooten, Judge; and Touissant, Judge. [*]

         SYLLABUS

         A sentence based on an incorrect criminal history score is an illegal sentence subject to correction under Minnesota Rule of Criminal Procedure 27.03, subdivision 9, even if the sentence would still be within the presumptive sentencing guidelines range when calculated with the correct criminal history score.

          OPINION

          HOOTEN, Judge.

         Appellant argues that the district court abused its discretion by denying his motion to correct his sentence, which was based on an incorrect criminal history score. We reverse and remand.

         FACTS

         In February 2015, appellant Shawn Michael Provost was charged in Meeker County with second-degree burglary, along with three other crimes. Provost pleaded guilty to the burglary charge, and the state agreed to dismiss the other three charges. The plea did not include an agreement as to his sentence. The district court sentenced Provost to 48 months, which was the presumptive middle of the box duration based on the severity level of the crime and Provost's criminal history score of six. See Minn. Sent. Guidelines 4.A (2014).

         In November 2016, Provost successfully petitioned a Kandiyohi County postconviction court to vacate his January 2015 conviction for possession of a firearm by an ineligible person, based on the Minnesota Supreme Court's holding in State v. Haywood, 886 N.W.2d 485, 486 (Minn. 2016), that an air-powered BB gun is not a firearm. This conviction accounted for 1.5 of the 6 criminal history points used to determine Provost's sentence for the February 2015 burglary conviction.

         In December 2016, Provost filed a motion to correct his burglary sentence, on the ground that the sentence imposed was based on an incorrect criminal history score. The Meeker County district court summarily denied Provost's motion. Provost appeals.

         ISSUES

         Did the district court abuse its discretion by denying Provost's ...


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