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State v. Oreskovich

Court of Appeals of Minnesota

June 11, 2018

State of Minnesota, Respondent,
v.
Donald Andrew Oreskovich, Sr., Appellant.

          Washington County District Court File No. 82-CR-14-741

          Lori Swanson, Attorney General, St. Paul, Minnesota; and Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County Attorney, Stillwater, Minnesota (for respondent)

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

          Considered and decided by Smith, Tracy M., Presiding Judge; Rodenberg, Judge; and Hooten, Judge.

         SYLLABUS

         Under the 2012 revisions of the Minnesota Sentencing Guidelines, one custody-status point is added to a sex offender's criminal-history score for a prior sex offense when the offender is no longer on probation but is still within the original term of probation for a sex offense other than Failure to Register as a Predatory Offender.

          OPINION

          RODENBERG, JUDGE

         Appellant Donald Andrew Oreskovich Sr. argues that the district court erred in denying his motion to correct his sentence for one of two counts of first-degree criminal sexual conduct of which he was convicted. The district court assigned appellant two custody-status points on each count when it computed his criminal-history score. Appellant argues that, as an offender who was discharged from probation but who was still within the original probation term for a prior sex offense, he should have been assigned only one custody-status point under the applicable sentencing guidelines when he was sentenced for a new sex offense committed in February 2014. The plain language of the applicable guidelines provides that such an offender should be assigned one custody-status point, and appellant was therefore sentenced using an incorrect criminal-history score. We reverse the denial of appellant's motion to correct his sentence on count two, and we remand for resentencing.

         FACTS

         Appellant was convicted of second-degree criminal sexual conduct in 1996. Appellant's sentence for that conviction was stayed, and he was placed on probation for 25 years. He was discharged from probation on August 20, 2012. Appellant was then charged with and pleaded guilty to two counts of first-degree criminal sexual conduct, committed against a victim who was 12 years old in May of 2012, and again when the victim was 13 years old in February of 2014.[1] Appellant's plea agreement with the state called for dismissal of a third count. It included no agreement concerning sentencing. Appellant argued for a bottom-of-the-box sentence, and the state sought a guidelines sentence.

         The district court, acting on a recommendation in a presentence investigation, computed appellant's criminal-history score to be three points under the applicable 2011 sentencing guidelines for his count-one sentence; this included two custody-status points. On count one, the offense that appellant committed in May 2012, the sentencing worksheet assigned appellant two custody-status points for the 1996 conviction because he was "within [the] original probation term" of that criminal-sexual-conduct conviction.[2] The resulting sentence for count one was 180 months, executed. On count two, the offense that appellant committed in February 2014, the district court applied the 2013 sentencing guidelines to sentence appellant to 360 months in prison using a criminal-history score of six. The district court arrived at this criminal-history score by assigning appellant two custody-status points for being within the "original probation term" of the 1996 sex offense, despite appellant's discharge from probation in August 2012 before the conduct underlying count two. The sentences for both counts were concurrent.

         Appellant moved to correct his sentence, seeking additional custody-credit days and challenging his sentence on count two because the district court used the wrong criminal-history score. He argued that, under the 2012 revisions of the guidelines, which the parties agree apply to his February 2014 offense, he should have been sentenced on count two using a criminal-history score of five, including only one custody-status point, because he had been discharged from probation on the 1996 conviction at the time of the count-two offense.

         The district court denied appellant's criminal-history-score motion. The district court concluded that the 2012 revisions of the sentencing guidelines was "unclear as to whether a second point applie[d] to an offender discharged early from probation" under Minn. Sent. Guidelines 2.B.2.a(4) (2014). Because the district court concluded the statute was ambiguous, it applied the canons of statutory construction. It interpreted the 2012 revisions of the guidelines to require that a second custody-status point be assigned to an offender who had been discharged early from probation, because the revisions that changed the language of Minn. Sent. Guidelines 2.B.2 "were intended to make only minor, uncontroversial, stylistic adjustments to the text [and] it seems clear that the Commission did not intend to make the significant change of exempting offenders who had been discharged early." It found that the later-adopted 2014 version of the sentencing guidelines bolstered this conclusion, because the subsequent 2014 version revised the relevant provisions in an effort to "clarify that a sex offender committing an offense within the original length of probation qualifies for two custody points."

         This appeal followed.

         ISSUE

         Under the 2012 revisions to the Minnesota Sentencing Guidelines 2.B.2, is a sex offender who has been discharged from probation, yet remains within his original probation term, properly assigned two custody-status points for a new sex offense?

         ANALYSIS

         Appellant does not challenge his sentence for count one. He argues that the district court erroneously denied his motion to correct his sentence for count two, because the sentence was based on an incorrect criminal-history score. The underlying offense for count two was committed in February 2014. The 2012 revisions of the sentencing guidelines were effective from August 1, 2012 to August 1, 2014, and therefore apply to count two.[3] Although appellant's original probation term for his 1996 offense was announced to run until 2021, he was discharged from probation on August 20, 2012. When appellant committed the offense underlying count one in May 2012, he had not yet been discharged from probation; but at the time of the offense underlying count two in February 2014, appellant had been discharged from probation. Both offenses were committed within the original probation term announced for the 1996 conviction.

         A. The district court properly assigned appellant two custody-status points when calculating his criminal-history score for count one under the 2011 sentencing guidelines.

         The Minnesota Sentencing Guidelines provide presumptive sentences for felony convictions. Each offense is assigned an offense-severity level, and each offender is assigned a criminal-history score. Minn. Sent. Guidelines 2 (Supp. 2013). The applicable Sentencing Guidelines Grid uses the offense-severity level and the criminal-history score as its two axes, with the cell at the resulting intersection providing a presumptive sentence. Minn. Sent. Guidelines 1.B.14 (Supp. 2013). An offender's criminal-history score is computed from eligible prior offenses and juvenile adjudications, plus any custody-status points. Minn. Sent. Guidelines 2.B. Custody-status points are assigned when an offender is "under some form of eligible criminal justice custody status" at the time the offender committed the offense being sentenced. Minn. Sent. Guidelines cmt 2.B.201 (Supp. 2013).

         Appellant was sentenced for count one under the 2011 version of the sentencing guidelines. This version provides that an offender is assigned one custody-status point if the offender

was on probation, parole, supervised release, conditional release, released pending sentencing, or confined in a jail, workhouse, or prison pending sentencing, following a guilty plea, guilty verdict, or conviction in a felony, extended jurisdiction juvenile, non-traffic gross misdemeanor or gross misdemeanor driving while impaired or refusal to submit to a chemical test case or misdemeanor on the targeted misdemeanor list provided in Minnesota Statutes, section 299C.10, subdivision 1, paragraph (e).

Minn. Sent. Guidelines 2.B.2.a (Supp. 2011). An additional custody-status point "shall" be assigned if

the offender was under any of the custody status conditions in a through d above for a specified sex offense, other than Failure to Register as a Predatory Offender (Minnesota Statutes, section 243.166), and the current offense of conviction is a specified sex offense, other than Failure to ...

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