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This opinion will be unpublished and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
A17-0568

State of Minnesota,
Respondent,

vs.

Louis Ambrose,
Appellant.

Filed September 11, 2017
Affirmed
Johnson, Judge

Ramsey County District Court
File No. 62-CR-11-6509

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

John J. Choi, Ramsey County Attorney, Laura Rosenthal, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chie f Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
In 2011, Louis Ambrose pleaded guilty to attempted second -degree intentional
murder. T he district court imposed a sentence that include s a restitution obligation of
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$1,111.41. In 2015 and 2016, Ambrose filed multiple motions to correct his sentence, all
of which the district court denied. In this appeal, Ambrose challenges his restitution
obligation and the calculation of his criminal-history score. We affirm.
FACTS
On August 16, 2011, Ambrose and his girlfriend, E.J., had an argument at her home.
Later that day, Ambrose threw a Molotov cocktail through a first-floor bedroom window,
which started a fire in side the home. Ambrose intentionally prevented E.J. from leaving
the home by blocking her access to the front door. A neighbor heard E.J.’s screams and
intervened, which enabled E.J. to escape the burning ho me. Ambrose fle d, but p olice
officers later found him nearby and arrested him.
The next day, the state charged Ambrose with one count of attempted second-degree
intentional murder, in violation of Minn. Stat. §§ 609.17, subd. 1, .19, subd. 1(1) (2010),
and one count of first-degree arson, in violation of Minn. Stat. § 609.561, subd. 1 (2010).
In November 2011, Ambrose pleaded guilty to the charge of attempted second -
degree intentional murder. His attorney assisted him in providing a factual basis for the
plea, as follows:
DEFENSE COUNSEL: So is it true that [you and E.J.]
had gotten into an argument and you had left the home?

AMBROSE: Yeah.

DEFENSE COUNSEL: At some point on that morning
did you throw some items through the window of her bedroom
that set the house on fire?

AMBROSE: I thought we was going to attempted
murder.
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DEFENSE COUNSEL: I’m getting to that. But we
have to get there first. You’re no t going to be convicted of
arson, sir.

. . . .

Mr. Ambrose, at some point in that morning did you
throw some items through the window of [E.J.]’s bedroom that
set the house, that bedroom on fire?

AMBROSE: Yeah.

. . . .

DEFENSE COUNSEL: In that process did you close
the door to the house that was on fire?

AMBROSE: Yep.

DEFENSE COUNSEL: And did you attempt to keep
[E.J.] in the house with you while the house was on fire?

AMBROSE: Yep.

DEFENSE COUNSEL: Was it your intent at that point,
Mr. Ambrose, to basically die with [E.J.] in that fire?

AMBROSE: Basically, yeah.

DEFENSE COUNSEL: And [E.J.] was not able to get
out of the house because you were blocking the door; is that
correct, sir?

AMBROSE: True.

. . . .

DEFENSE COUNSEL: So you would agree that your
behavior on that day, on the 16th, and your actions on that day
by keeping [E.J.] in the house you were attempting to kill her;
is that right?

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AMBROSE: Yeah.

In exchange for his plea of guilty to the charge of second-degree intentional murder,
the state agreed to dismiss the charge of first-degree arson. The parties agreed to jointly
recommend a sentence at the low end of the applicable sentencing guidelines range. The
plea agreement did not contain any provision concerning re stitution. In December 2011,
the district court sentenced Ambrose to 173 months of imprisonment, which is the low end
of the applicable sentencing guidelines range. The district court ordered restitution in an
amount to be determined.
Three days after the sentencing hearing, the owner of the multi-unit building in
which E.J. lived requested restitution. The building owner’s sworn affidavit states that he
sustained a financial loss of $1,111.41, which consists of an insurance deductible of $1,000
and uninsured repair expenses of $111.41. E.J. did not request restitution. In April 2012,
the district court ordered Ambrose to pay $1,111.41 in restitution to the building owner.
Ambrose did not pursue a direct appeal from his conviction or his sentence.
Between June 2015 and August 2015, Ambrose filed multiple pro se motions to
correct his sentence. See Minn. R. Crim. P. 27.03, subd. 9. In November 2015, the district
court denied the motions. Ambrose appealed, pro se. This court reversed and remanded
because the record was unclear as to whether Ambrose had been informed of his right to
counsel. Ambrose v. State, No. A15-1972 (Minn. App. July 20, 2016) (order opinion).
In October 2016, Ambrose, with the assistance of counsel, filed a motion to correct
his sentence. In that motion, he argued that the district court erred by awarding restitution
on the ground that the building owner’s financial losses were not caused by the attempted
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murder, the charge of which he was convicted, bu t rather by the alleged arson, the charge
that was dismissed. Ambrose also argued that the district court erred at the time of
sentencing by including a custody-status point in his criminal-history score. Ambrose also
filed additional pro se motions to correct his sentence between January 2016 and January
2017. In February 2017, the district court issued an order in which it denied Ambrose’s
counseled motion and his pro se motions. Ambrose appeals.
D E C I S I O N
I. Restitution
Ambrose first argues, through counsel, that the district court erred by denying his
motion to correct his sentence with respect to his challenge to the restitution award. He
contends that the restitution award is not authorized by law on the ground that the building
owner’s fi nancial losses were not directly caused by the conduct for which he was
convicted. He further contends that the building owner’s losses were caused by the fire,
which was the factual basis of the arson charge, which was dismissed when he pleaded
guilty to attempted murder. He provides additional argument on this issue in his pro se
supplemental brief. In response, the state argues that the district court did not err because
the restitution award is based on conduct to which Ambrose admitted during the plea
hearing, which established his guilt of attempted murder.
A district court “may at any time correct a sentence not authorized by law.” Minn.
R. Crim. P. 27.03, subd. 9. If a criminal offender files a motion and demonstrates that a
sentence is not authorized by law, a district court must correct the sentence. Reynolds v.
State, 888 N.W.2d 125, 129 -30 (Minn. 2016). A criminal offender may utilize the
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procedure in rule 27.03, subdivision 9, to challenge a restitution award. Evans v. State ,
880 N.W.2d 357, 359-60 (Minn. 2016).
In Minnesota, restitution awards are governed primarily by statute. See Minn. Stat.
§§ 611A.04-.06 (2010); see also State v. Gaiovnik, 794 N.W.2d 643, 646-52 (Minn. 2011).
The “primary purpose” of restitution is “to restore crime victims to the same financial
position they were in before the crime.” State v. Palubicki, 727 N.W.2d 662, 666 (Minn.
2007). Accordingly, “A victim of a crime has the right to receive restitution as part of the
disposition of a criminal charge . . . against the offender if the offender is convicted.”
Minn. Stat. § 611A.04, subd. 1(a). The word “victim,” as used in the restitution statute, is
defined to mean “a natural person who incurs loss or ha rm as a result of a crime.” Minn.
Stat. § 611A.01(b) (2010).
In determining whether to order restitution to a victim and in what amount, a district
court must consider, among other things, the “amount of economic loss sustained by the
victim as a result of the offense ,” as supported by facts in the record. Minn. Sta t.
§ 611A.045, subd. 1(a) . A victim’s “compensable loss must be ‘directly caused by the
conduct for which the defendant was convicted.’” State v. Nelson, 796 N.W.2d 343, 347
(Minn. App. 2011) (quoting State v. Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999));
see also State v. Ramsay, 789 N.W.2d 513, 517-18 (Minn. App. 2010) (reversing restitution
award that “far exceed[ed] the loss attributable to the offense” of conviction). The victim’s
loss also must “have some factual relationship to the crime committed.” Nelson, 796
N.W.2d at 347; see also State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984) (concluding that
factual record did not support restitution award). If a victim sustained such a loss, a district
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court has “significant discretion” to determine the amount of restitution. State v. Tenerelli,
598 N.W.2d 668, 671-72 (Minn. 1999). This court applies an abuse-of-discretion standard
of review to a district court’s decision concerning an award of restitution. Id. at 672.
The district court resolved Ambrose’s challenge to the restitution award as follows:
During the plea hearing, Ambrose testified under oath that he
threw items into the residence that set it on fire and closed the
door to kill E.N.J. in the fire. The fire caused damage to M.S.’s
residence. The total loss incurred due to the fire damage to the
residence was $65,271.63, while the out -of-pocket economic
loss to M.S. was $1,111.41. This out -of-pocket loss was
directly caused by Ambrose’s conduct as demonstrated by the
record facts. It is a direct result of Ambrose’s conduct that
M.S. incurred economic loss. And, while Ambrose is presently
incarcerated and his income and resources are more limited,
the restitution award is not insurmountably excessive.
Therefore, the restitution award for M.S.’s economic loss was
properly ordered in the amount of $1,111.41.

Ambrose contends that the district court erred because “the loss —the damages to
the house—was not caused by conduct for which [he] was convicted.” Rather, he contends:
“The conduct for which [he] was convicted was preventing [E.J.] from leaving an already-
burning building. That conduct did not directly cause the damage to the building.” He
contends further that the building owner is not a victim of his crime because E.J. is the only
person who could be the victim of the offense of attempted murder.
The district court properly characterized the conduct for which Ambrose was
convicted. Ambrose was convicted of attempted murder not merely because he attempted
to prevent E.J. from leaving a burning building; he was convicted of attempted murder
because he first intentionally set the building on fire and then attempted to prevent E.J.
from leaving it. Starting the fire was part of his murder scheme. He admitted during the
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plea hearing that he started the fire after an argument with E.J., and it is apparent from the
record of the plea hearing that he started the fire as a means of causing E.J.’s death. The
record shows that the conduct underlying Ambrose’s conviction of attempted murder
“directly caused” the building owner’s loss. See Nelson, 796 N.W.2d at 347.
Thus, the district court did not err by denying Ambrose’s motion to correct his
sentence with respect to the restitution award.
II. Custody-Status Point
Ambrose also argues that the district court erred by denying his motion to correct
his sentence with respect to his challenge to a custody-status point in his criminal-history
score. A criminal offender may invoke rule 27.03, subdivision 9, to challenge a custody -
status point i n his criminal -history score. State v. Maurstad , 733 N.W.2d 141 , 14 8-50
(Minn. 2007). We apply an abuse -of-discretion standard of review to a district court’s
determination of a defendant’s criminal -history score. Hill v. State , 483 N.W.2d 57, 61
(Minn. 1992); State v. Drljic, 876 N.W.2d 350, 353 (Minn. App. 2016).
After Ambrose’s guilty plea, a probation officer conducted a pre-sentence
investigation. The probation officer calculated Ambrose’s criminal -history score to be
five. That score includes one custody -status point based on the fact that Ambrose
committed attempted murder within the original term of probation for a 2006 fifth -degree
controlled-substance offense, in which the district court sentenced Ambrose to 19 months
of imprisonment but stayed execution of the sentence and placed him on probation for 10
years, until 2016. In 2008, however, the district court found that Ambrose violated the
terms of his probation and ordered him to serve 180 days in jail, after which time his
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sentence was discharged. As a result, Ambrose was discharged from probation
approximately eight years before the original probation term would have expired. The
custody-status point is based on a sentencing guideline that states, “One point is assigned
if the offender . . . committed the current offense within the period of [an] ini tial
probationary sentence.” Minn. Sentencing Guidelines 2.B.2.b (2011). The same guideline
also states that a custody-status point is not assigned “if the probationary sentence for the
prior offense is revoked, and the offender serves an executed senten ce.” Id. Ambrose’s
2006 sentence was not executed; rather, it was discharged after he served 180 days in jail
for a probation violation.
In his counseled motion to correct sentence, Ambrose argued to the district court
that his sentence is not authorized by law because, at the probation-violation hearing in the
controlled-substances case in 2008, he was not informed that he could elect to execute his
sentence rather than to serve time in jail. 1 He argue d further that, i f he had been so
informed, he might have chosen to execute his 19-month prison sentence rather than serve
a 6 -month jail term, which would have allowed him to avoid a custody -status point at
sentencing in this case . Ambrose based his argument on caselaw t hat recognizes an
offender’s right at the time of sentencing to demand an executed prison sentence instead of
being placed on probation. See State v. Rasinski, 472 N.W.2d 645, 650-51 (Minn. 1991);

1We note that Ambrose did not provide the district court with any transcripts or
other records of his 2006 sentencing hearing. For purposes of this opinion, we assume
without deciding that the district court did not advise him of any such right.
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State v. Ra ndolph, 316 N.W.2d 508, 510 (Minn. 19 82). The district court resolved
Ambrose’s argument as follows:
A criminal defendant has a right to demand execution of the
presumptive sentence when the probationary sentence is more
onerous even if society’s interest appears to be better served by
the probationary sentence. State v. Rasinski, 472 N.W.2d 645,
651 (Minn. 1991). However, the right to demand execution at
the sentencing hearing does not imply that later having violated
probation, a criminal defendant is entitled to demand execution
of sentence. Bail v. State , 391 N.W.2d 8, 10 (Minn. App.
1986), review denied (Minn. Sept. 22, 1986). The district court
was not, therefore, required at the 2008 probation violation
hearing to present Ambrose with the choice of serving the
entirety of the 19 -month sentence or serving 180 days and
being discharged early from probation.

On appeal, Ambrose acknowledges this court’s opinion in Bail but suggests that, in
essence, two subsequent opinions have overruled Bail. He cites Rasinski and asserts that,
by logical extension, a defendant such as himself “might think a pr obationary sentence is
more onerous than an executed sentence in a situation like this, because the probationary
sentence comes with a custody point and an executed sentence does not.” But the appellant
in Rasinski requested execution of his prison senten ce before the time for a direct appeal,
not years later after a probation violation, as in this case. See 472 N.W.2d at 648; State v.
Rasinski, 464 N.W.2d 517, 520 (Minn. App. 1990), rev’d in part, 472 N.W.2d 645 (Minn.
1991). Ambrose also cites State v. Jennings, 448 N.W.2d 374 (Minn. App. 1989), in which
we recognized that, because of a general preference for concurrent sentencing, “a defendant
serving a prison sentence on a felony has the right to execution of a prior probationary
sentence.” Id. at 375. We concluded in Jennings that the offender could execute a
probationary sentence even if his subsequent sentence was imposed in another state. Id.
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The offender in Jennings requested execution of his prison sentence approximately one
year after sentencing. See id. at 374. But he then was serving a sentence on another felony
conviction, which implicated concerns about consecutive and concurrent sentencing, not
about future custody -status points. Id. at 374-75. Contrary to Ambrose’s argument, the
opinions in Rasinski and Jennings do not contradict Bail, in which we rejected the
offender’s argument, first raised after a probation violation, for a “retroactive change in
sentence” on the ground that he was not advised at sentencing that he had a right to demand
execution of a probationary sentence. See Bail, 391 N.W.2d at 10; see also Rasinski, 472
N.W.2d at 648; Jennings, 448 N.W.2d at 375. The Bail opinion applies to this case and
forecloses Ambrose’s argument.
Thus, the district court did not err by denying Ambrose’s motion to correct his
sentence with respect to his challenge to the custody-status point in his criminal -history
score.
III. Pro Se Arguments
Ambrose makes two additional arguments in a pro se supplemental brief.
First, Ambrose argues that the district court erred by denying his motion to correct
his sentence on the ground that his conviction is based on evidence that relates to the
dismissed charge of first-degree arson. He contends that he may not be convicted of and
sentenced for attempted murder because he did not plead guilty to arson; that without an
arson conviction, there is no evidence of a fire; and that if there is no evidence of a fire,
there is no attempted murder. His argument is without merit for several r easons. A
criminal offender may invoke rule 27.03, subdivision 9, to challenge a sentence but may
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not invoke the ru le to challenge a conviction. State v. Coles , 862 N.W.2d 477, 480 -81
(Minn. 2015). Furthermore, there is no authority for the proposition that the district court
could not find Ambrose guilty of attempted murder without also finding him guilty of
arson. Ambrose’s guilty plea is supported by an adequate factual basis. See S tate v.
Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).
Second, Ambrose arg ues that the district court erred by denying his motion to
correct his sentence on the ground that his criminal-history score at sentencing incorrectly
included one point for four prior misdemeanor convictions. See Minn. Sentencing
Guidelines 2.B.3. He contends for the first time on appeal that he was convicted of only
two of the misdemeanors and that the two other misdemeanors were dismissed. Ambrose
did not submit evidence to the district court to support this ar gument. Accordingly, he
cannot demonstrate that the district court erred by not recalculating his criminal -history
score with fewer prior misdemeanor offenses.
In sum, the district court did not err by denying Ambrose’s counseled motion to
correct his sentence or his pro se motions to correct his sentence.
Affirmed.