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This opinion will be unpublished and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
A17-0469

State of Minnesota,
Respondent,

vs.

Nathaniel Christopher Glass,
Appellant.

Filed August 14, 2017
Affirmed
Schellhas, Judge

Ramsey County District Court
File Nos. 62-K1-05-000933, 62-K7-05-000953

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chie f Judge; Schellhas, Judge; and Randall,
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
SCHELLHAS, Judge
Appellant challenges an order denying hi s motion to correct two sentences imposed
in December 2005, asserting that his senten ces are based on an erroneously calculated
criminal-history score that includes an Illinois conviction. We affirm.
FACTS
In October 2005, appellant Nathaniel Chri stopher Glass pleaded guilty in separate
cases to first-degree criminal sexual conduct and to second-degree intentional murder. At
Glass’s plea hearing, defense counsel stated th at “Glass will simply enter a plea of guilty
as charged” to first-degree criminal sexual conduct and “will receive a 144-month sentence
. . . pursuant to Minnesota Statutes.” See Minn. Stat. § 609.342, su bds. 1(c), 2(b) (2004)
(stating that “the court shall presume that an executed sentence of 144 months must be
imposed on an offender convicted of viola ting this section,” and making it a crime to
engage in sexual penetration wi th another while causing the person to have a reasonable
fear of imminent great bodily harm).
At the plea hearing, defense counsel also stated that “Glass will be entering a plea
of guilty” to second-degree intentional murder and that the “sentenc e on the murder file
will be concurrent with the criminal sexual conduct matter.” Counsel further stated: “Mr.
Glass will then be agreeing to a 36-month upward departure from the guidelines and
waiving his right to have a jury hear or dete rmine whether or not he should receive that
upward departure.” Counsel continued:

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I should note that there is no guarantee as to what my client’s
criminal history and score is, however, based on my own
calculations, the State has al so come up with the same
calculation and it is anticipated that after sentencing on the
criminal sexual conduct and sentencing on the homicide, there
will be a 36-month upward departure, it should be a 402-month
sentence.

During the plea colloquy, Glass answered questions about the terms of the plea agreement
and acknowledged that he would receive the statutorily mandated sentence of 144 months’
imprisonment on the criminal-sexual-conduct case, and a concurre nt sentence, which
included a 36-month upward durational departure from the sentencing guidelines, based on
his criminal-history score as understood by his counsel and the state, in the second-degree-
intentional-murder case.
Defense counsel explained that “Mr. Glass understands that if there has been a
miscalculation in the sentence and if I have under calculated his points, his sentence on the
homicide is guidelines plus 36 [months].” The court accepted Glass’s guilty pleas.
The district court received sentencing work sheets and a presentence investigation
report (PSI). The sentencing worksheet prepared in the second-degree-intentional-murder
case calculated Glass’s criminal-history score at 4, comprised of 1 custody status point, 2
points for the criminal-sexual-conduct conviction on which Glass would be sentenced first,
and 1.5 points for a November 1999 Illinois controlled-substance conviction. Glass’s PSI
identifies the 1999 Illinois controlled-substance conviction as a felony and describes it as
“Manufacture/Delivery Controlled Substance. Chicago, Cook County, IL. Pled guilty and
sentenced 11/3/99, 24 months[’] probation and $50 lab fee.”

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At sentencing in December 2005, Glass challenged the weight assigned to the
Illinois controlled-substance conviction because of its effect on the length of his sentence
for second-degree intentional murder. Glass argued that because he did not serve any prison
time for the Illinois controlled-substance conviction, the conviction should be treated as a
gross misdemeanor, not a felony. Treating th e conviction as a gross misdemeanor would
decrease Glass’s criminal-history score to 3, reducing his sentence for second-degree
murder from 422 to 402 months. The state objected, the district court agreed with the state,
and the court imposed concurrent prison sent ences of 144 months for criminal sexual
conduct and 422 months for seco nd-degree intentional murder. Glass did not file a direct
appeal.
Eleven years later, in July 2016, Glass moved to correct his 422-month second-
degree-intentional-murder sentence under Minn. R. Crim. P. 27.03, subd. 9, arguing that
the sentencing court miscalculated his criminal-history score by including the 1999 Illinois
controlled-substance conviction as a felony, and that the court should have calculated his
score at 3 not 4. The district court denied Glass’s motion. This appeal follows.
D E C I S I O N
The district court concluded that the sentenci ng court properly included Glass’s
1999 Illinois controlled-substance conviction in Glass’s criminal-history score as a felony
conviction because the Illinois offense could be charged as a felony in Minnesota and
because the 24-month probationary sentence that the Illinois court imposed “is consistent
with either a felony sentence or a gross misdemeanor sentence in Minnesota.” Glass
maintains that the court erred.

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On appeal from the denial of a motion to correct a sentence under Minn. R. Crim.
P. 27.03, subd. 9, this court will affirm if the district court properly exercised its discretion
and if the sentence is authorized by law. Anderson v. State, 794 N.W.2d 137, 139 (Minn.
App. 2011), review denied (Minn. Apr. 27, 2011). A sent ence based on an incorrect
criminal-history score is an unauthorized sentence that may be corrected at any time. State
v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007).
Under the terms of his plea agreement, Glass agreed to a 36-month upward
departure from the presumptive guidelines sentence for second-degree intentional murder.
Because Glass committed the offense in Ma rch 2005, the 2004 stat utes and guidelines
apply. See Minn. Sent. Guidelines III.F. (2004). In 2004, the presumptive sentence for this
severity-level-XI offense, for an offender with a criminal-h istory score of 4, was 386
months; with a criminal-history score of 3, the presumptive sentence would have been 366
months. Minn. Sentencing Guidelines IV. (2004) (sentencing guidelines grid).
Glass states in his brief that he “does not contest that the 1999 [Illinois] offense
would be defined by Minnesota as a felony based on the elements” but argues that the state
has never met its burden to prove that the se ntence he received in Illinois “would [have
been] a felony sentence in Minnesota.” And he argues that because he did not serve any
time in prison for his 1999 I llinois controlled-substance conviction, and because the 24-
month probationary sentence that he received in Illinois is consistent with either a felony
or a gross misdemeanor, the ev idence is insufficien t to prove that his 1999 Illinois
controlled-substance conviction was a felony. See Minn. Stat. § 609.135, subd. 2(c) (2004).
The sentencing court rejected those arguments in 2005.

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Appellate courts review the district cour t’s calculation of an offender’s criminal-
history score for an abuse of discretion. See Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992)
(“[O]bviously if the sentencing court abuses its discretion in decidi ng whether or not to
designate an out-of-state conviction as a felony for purposes of computing the defendant’s
criminal history score, then the court’s determination may be reversed.”).
“The state . . . has the burden at a sent encing hearing of establishing the facts
necessary to justify consideration of out-of-state convictions in determining a defendant’s
criminal history score.” State v. McAdoo , 330 N.W.2d 104, 109 (Minn. 1983). The state
must “produce evidence to establish by a fair preponderance of the evidence the validity of
the prior convictions, the fact that the defendant was the pe rson involved, and that the
crimes constituted felonies in Minnesota.” State v. Griffin, 336 N.W.2d 519, 525 (Minn.
1983). “[I]t is the trial court’s role to resolve any factual dispute bearing on the defendant’s
criminal history score.” State v. Olson , 379 N.W.2d 524, 527 (M inn. 1986). “[I]n many,
perhaps most, cases the [sentencing court’s] determination can be made by the sentencing
court without turning the sentencing hearing into a mini-trial relating to the conduct
underlying the out-of-state conviction.” Hill, 483 N.W.2d at 61.
“The designation of out-of-state convicti ons as felonies, gross misdemeanors, or
misdemeanors shall be governed by the offe nse definitions and sentences provided in
Minnesota law.” Minn. Sent. Guidelines II.B.5. (2004). The sentencing court should
examine both the offense definition and the sentence imposed. State v. Reece, 625 N.W.2d
822, 825 (Minn. 2001). Glass insists that the state failed to meet its burden to establish that
the sentence that the Illinois court imposed would be a felony sentence in Minnesota. Glass

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is correct that the only reco rd evidence regarding his Illinoi s sentence is that the Illinois
court placed him on probation for 24 months. But he is incorrect that this evidence fails to
prove that he received a felony sentence.
In State v. Campbell, 814 N.W.2d 1 (Minn. 2012), the supreme court addressed the
determination of a criminal-h istory score under circumstances similar to Glass’s. The
district court assigned Campbell one felony criminal-history po int for a 1995 robbery
conviction for which Campbell had received a felony stay of imposition and a sentence
within the gross misdemeanor range—two y ears of probation and community service.
Campbell, 814 N.W.2d at 6. The supreme court acknowledged that, under Minn. Stat.
§ 609.13, subd 1(1) (2010), “[ a] felony conviction is deemed a gross misdemeanor if the
sentence imposed for the felony is within gross misdemeanor limits” and that the
sentencing guidelines state that “felonies re sulting in gross misdemeanor sentences count
as gross misdemeanors in the calculation of criminal history scores.” Id. at 6–7. The
supreme court further emphasized that the gui delines state that “criminal history is
calculated by giving felony points to every felony conviction where a sentence was stayed
or imposed or where a stay of imposition was given before the current sentence” and that
“felony criminal history points are given for fe lony stays of imposition, regardless of the
period of probation the court pronounced.” Id. at 7 (emphasis added). Because Campbell
received a stay of imposition for a felony conviction, the supreme court concluded that the
calculation of his criminal-his tory points was governed by th e section of the guidelines,
“which directs that felony st ays of imposition result in fel ony criminal history points no
matter what period of probation the defendant receives.” Id.

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In this case, the record is not entirely cl ear about whether the Illinois court stayed
imposition or execution of Glass’s sentence before placing him on probation for 24 months.
But under the sentencing guidelines, Glass’s cr iminal-history score should be calculated
by assigning felony points to his felony convi ction, regardless of the period of probation
pronounced by the Illinois court. Id. The fact that the probationary period is consistent with
either a felony or a gross misdemeanor or that Glass did not spend time in prison as a result
of the Illinois court’s sentence is irrelevant. We therefore conclude that the sentencing court
properly exercised its discretion in assigning Glass a felony point for his 1999 Illinois
controlled-substance conviction for purposes of calculating his criminal-history score. The
district court did not err by denying Glass’s motion to correct his sentence, and we affirm.
Affirmed.