State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1797

State of Minnesota,
Respondent,

vs.

Joshua Marvin Duncan,
Appellant.

Filed October 23, 2017
Reversed and remanded
Kalitowski, Judge*

Stearns County District Court
File Nos. 73-CR-16-2215, 73-CR-16-6060

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Janelle P. Kendall, Stearns County Attorney, Hannah J. Prokopowicz, Assistant County
Attorney, St. Cloud, Minnesota (for respondent)

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

Considered and decided by Schellhas, Presiding Judge; Ross , Judge; and
Kalitowski, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
KALITOWSKI, Judge
Appellant challenges his sentences for third- degree assault and for two domestic
abuse no contact (DANCO) violations, arguing that (1) a decayed 1996 conviction was
erroneously included in his criminal history score (CHS) for the third-degree assault
sentence; (2) he did not have the requisite two prior qualifying convictions for his DANCO
violations to be sentenced as felonies because he had not been convicted of the third-degree
assault at the time he committed the DANCO violations; and (3) even if the DANCO
violations were felonies, a custody status point should not have been included in his CHS
when they were sentenced because, at the time he committed the DANCO violations, he
was not in custody. We conclude that (1) the decayed conviction was erroneously included
in appellant’s CHS when he was sentenced for third degree assault; (2) the DANCO
violations were appropriately sentenced as felonies; and (3) a custody point was
appropriately included in those sentences. Because the error in computing appellant’s CHS
affected all his sentences, we reverse and remand for resentencing.
D E C I S I O N
The district court’s determination of a defendant’s CHS will not be reversed absent
an abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002), review
denied (Minn. Aug. 20, 2002).
Appellant Joshua Duncan was convicted of felonies in 1996, 2001, 2002, and 2010;
his 2010 conviction was for second-degree assault. In March 2016, following an incident
involving appellant’s wife and another male, appellant was charged with third-degree
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assault and gross m isdemeanor domestic assault. A DANCO was issued prohibiting
appellant from having any contact with his wife.
The state agreed to dismiss the gross- misdemeanor domestic assault charge in
exchange for appellant’s guilty plea to third-degree assault. At the plea hearing, appellant’s
attorney questioned him.
Q. [W]e talked about the fact that assault charges are
something that can be considered over the next ten years
to enhance or make any future charges higher level.
You understand that?
A. Yes.
Q. So that if nine years from being sentenced in this matter,
there was something that normall y mi ght be a
misdemeanor assault charge and this is still on your
record because of the ten- year period, there’s a factor
that that could be enhanced to a higher lev el, gross
misdemeanor, or depending on what comes in between,
possibly a felony. Do you understand that?
A. Yes.
Q. And now, at the very end of this [petition] is your
signature, correct?
A. Yes.
Q. You signed that understanding what the agreement was
and understanding your rights, is that correct?
A. Yes.

The district court also questioned appellant:
Q. Sir, are you pleading guilty because you are guilty?
A. Yes.
. . . .
Q. Are you making any claim that you are innocent of
third-degree assault?
A. No.
Q. Last question, sir, this is your signature on the last page
of this petition that I’m holding, correct?
A. Yes.
Q. This Court finds that this defendant has knowingly and
voluntarily waived his rights, he understands the
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enhanceability of this offense, and factual basis exists to
accept his guilty plea to the third-degree assault.

Because the state had agreed to dismiss the domestic-abuse charge, appellant’s attorney
asked that the DANCO be removed, saying “there really isn’t a jurisdiction for a [DANCO]
in this case any longer.” The district court denied the request: “Since the C ourt has not
officially dismissed the domestic abuse charge at this time, I believe I do have the
jurisdiction to keep the DANCO in place, and it is my intention to do so until the time of
sentencing.”
In June 2016, appellant, while in custody for the third-degree assault, violated the
DANCO by using a third person to make three phone calls to his wife. Based on a second-
degree assault conviction in 2010 and his third-degree assa ult conviction in March 2016,
appellant was charged with three felonies. See Minn. Stat. § 629.75, subd. 2 (d) (2016)
(“A person is guilty of a felony. . . if the person violates this subdivision: (1) within ten
years of the first of two or more previous qualified domestic violation-related offense
convictions . . . .”). In July 2016, appellant pleaded guilty to two felony charges; the third
DANCO charge was dismissed.
A sentencing hearing was held on both the third-degree assault and the DANCO
violations. Based on his convictions in 1996, 2001, 2002, and 2010, appellant’s CHS was
determined to be a four when he was sentenced for the third-degree assault. The
presumptive sentence for third-degree assault with a CHS of four is 24 months in prison,
executed, and that sentence was imposed. But, as the parties now agree, appellant’s CHS
when sentenced for the third-degree assault should have been three, because the decayed
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1996 conviction should not have been included. The presumptive sentence for third-degree
assault with a CHS of three is 21 months in prison, stayed. We therefore reverse and
remand appellant’s third-degree assault sentence for imposition of the presumptive 21
months, stayed.
Appellant’s third-degree assault conviction increased his CHS for the first DANCO
violation from three to four and the second DANCO violation from four to five. See State
v. Murphy, 545 N.W.2d 909, 917 (Minn. 1996) (citing State v. Hernandez, 311 N.W.2d
478, 479 (Minn. 1981) , to hold that, when sentencing a defendant on the same day for
multiple offenses not part of a single behavioral incident, occurring at different times, and
involving different victims, a district court may assign one criminal history point for each
previous felony conviction); see also State v. VanRuler, 378 N.W.2d 77, 80 (Minn. 1985)
(affirming use of the Hernandez method in sentencing multiple convictions against the
same victim).
But appellant argues that the DANCO violations should not have been sentenced as
felonies because, at the time he committed them in June 2016, he had not yet been
convicted of third-degree assault for his May 2016 offense. He asserts that it was not until
the August 2016 sentencing hearing that the district court adjudicated him guilty of third
degree assault.
We agree that it would have been preferable for the district court to have explicitly
stated that appellant was convicted at the plea hearing. But “a ‘conviction’ [within the
meaning of Minn. Stat. § 609.02, subd. 5, (2016)] occurs when the district court accepts
the guilty plea and the acceptance is on the record.” State v. Nodes, 863 N.W.2d 77, 81
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(Minn. 2015). Here, at the plea hearing, the district court asked appellant, “Sir, knowing
that the assault conviction can be used to make any future assault charges more serious, do
you still want me to accept your guilty plea today?” and appellant answered, “Yes.” T he
district court also stated “that this defendant has knowingly and voluntarily waived his
rights, he understands the enhanceability of this offense, and a factual basis exists to accept
his guilty plea to the third-degree assault.” Thus, we conclude that appellant was convicted
of third-degree assault at the plea hearing, prior to committing the DANCO violations,
which were properly sentenced as felonies. See Minn. Stat. § 629.75, subd. 2 (d); see also
In re Peer Review Action, 749 N.W.2d 822, 829 (Minn. App. 2008) (noting that magic
words such as convict “are not required for an appellate court to conclude that a district
court made a legally appropriate determination, when that determination can be inferred
from the district court’s actions”).
Finally, appellant argues that a custody point s should not have been added to his
CHS for the DANCO violations because he was not in custody when they occurred. But a
custody-status point is assigned when an offender is in “confinement in a jail, workhouse,
or prison pending or after sentencing.” Minn. Sent. Guidelines 2.B.2.a.(1)(vi). Appellant,
having violated the conditions of his conditional release, had been returned to jail pending
sentencing following his con viction of third-degree assault when he committed the
DANCO violations. Thus, the custody status points were properly added, giving him a
CHS of five for the first DANCO violation and six for the second DANCO violation. This
resulted in sentencing ranges of 23 to 32 months and 26 to 36 months in prison, executed,
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for the two DANCO violations and presumptive middle-of-the-box sentences of 27 and 30
months in prison, executed.
In conclusion, because the error in including the 1996 conviction in appellant’s CHS
resulted in an erroneous sentence for the third-degree assault and affected his sentences on
the DANCO violations, we reverse all three sentences and remand for resentencing
consistent with this opinion.
Reversed and remanded.