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State v. Strobel

Supreme Court of Minnesota

August 14, 2019

State of Minnesota, Appellant,
v.
Donald Albert Strobel, Respondent.

          Court of Appeals Office of Appellate Courts

          Karen Kelly, Wabasha County Attorney, Wabasha, Minnesota; and Thomas Ragatz, Special Assistant Wabasha County Attorney, Saint Paul, Minnesota, for appellant.

          Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant State Public Defender, Saint Paul, Minnesota, for respondent.

         SYLLABUS

         The phrase "offense definitions" in section 2.B.7.a of the Minnesota Sentencing Guidelines refers to the element-based definitions of offenses in Minnesota Statutes.

         Affirmed.

          OPINION

          GILDEA, Chief Justice.

         This case presents the question of whether, under section 2.B.7.a of the Minnesota Sentencing Guidelines, the classification of a prior offense as a gross misdemeanor or felony is determined by reference to the statute setting forth the elements of the crime, or by reference to Minn. Stat. § 609.02 (2018) (defining "felony" and "gross misdemeanor"). Appellant Donald Albert Strobel was convicted of first-degree sale of a controlled substance. The district court sentenced Strobel using a criminal-history score of five. Strobel appealed to the court of appeals, arguing that his criminal-history score was improperly calculated. Specifically, he argued that the district court had misapplied Minn. Sent. Guidelines § 2.B.7.a and improperly assigned one-half of a felony point for one of his prior convictions. The court of appeals agreed with Strobel's interpretation of the Guidelines and concluded that the State did not carry its burden to prove Strobel's criminal-history score. The court therefore reversed Strobel's sentence, and remanded to the district court for a new sentencing hearing. Because the court of appeals properly determined that the classification of a prior offense is determined by reference to the statute setting forth the elements of the crime, we affirm.

         FACTS

         This appeal involves two of Strobel's controlled-substance-crime convictions: one in 2012 (the "prior offense") and the current offense, which Strobel committed in 2016. The prior offense is relevant here because it was used to calculate Strobel's criminal-history score in sentencing for his current offense.

         In 2012, Strobel was convicted of the prior offense: fifth-degree possession of a controlled substance, in violation of Minn. Stat. § 152.025, subd. 2(a)(1) (2014). That statute prohibited the possession of "one or more mixtures containing a controlled substance classified in Schedule I, II, III, or IV, except a small amount of marijuana."[1] The statutory maximum sentence for the offense was 5 years in prison, Minn. Stat. § 152.025, subd. 2(a), but the presumptive guideline sentence for the offense, given Strobel's criminal-history score, was a stayed 15-month sentence. Minn. Sent. Guidelines 4-5 (2011). The district court stayed execution of a 15-month sentence and placed Strobel on probation for 5 years.

         Four years later, the Legislature enacted the 2016 Drug Sentencing Reform Act (DSRA). See Act of May 22, 2016, ch. 160, 2016 Minn. Laws 576. As we explained in State v. Scovel, "under section 7 of the DSRA, fifth-degree sale of a controlled substance remains a felony, but some first-time fifth-degree possession offenses are now classified as gross misdemeanors." 916 N.W.2d 550, 552 (Minn. 2018); see also Act of May 22, 2016, ch. 160, § 7, 2016 Minn. Laws 576, 583-85 (codified at Minn. Stat. § 152.025 (2016)). Section 7 of the DSRA became effective on August 1, 2016, and "applies to crimes committed on or after that date." Act of May 22, 2016, ch. 160, § 7, 2016 Minn. Laws 576, 585.

         Strobel committed the current offense in 2016. Police arrested him in December for selling methamphetamine to a confidential informant. Police also found methamphetamine in the police car where Strobel had been placed following his arrest. Strobel was charged with first-degree sale under Minn. Stat. § 152.021, subd. 1(2)(ii) (2018), found guilty following a jury trial, and convicted.[2] The district court sentenced Strobel to 115 months in prison, the presumptive guideline sentence for a defendant with a criminal-history score of five. Strobel's criminal-history score included one-half of a felony point for the 2012 prior offense.[3]

         Strobel did not challenge the criminal-history-score calculation in the district court. But he did challenge it on appeal to the court of appeals. See Scovel, 916 N.W.2d at 553 n.5 ("A defendant cannot forfeit appellate review of his criminal history score."); State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007) (noting that a defendant can neither waive nor forfeit appellate review of his criminal-history score "because a sentence based on an incorrect criminal history score is an illegal sentence"); see ...


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