of Appeals Office of Appellate Courts
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.
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.
GILDEA, Chief Justice.
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.
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.
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." 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.
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.
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. 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.
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 ...