State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0741

State of Minnesota,
Respondent,

vs.

Brock Lawrence Altringer,
Appellant.

Filed March 4, 2019
Reversed and remanded
Smith, Tracy M., Judge

Polk County District Court
File No. 60-CR-16-64

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Greg Widseth, Polk County Attor ney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Michael M cLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Ro ss, Judge; and
Slieter, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Brock Lawrence Altringer challenges his sentence for first-degree sale of
ten or more grams of methamphetamine, arguing that it is based on an incorrect criminal-

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history score. Specifically, Altr inger argues that (1) the post conviction court erred by
placing the burden on him to prove his criminal-history score while his direct appeal was
still pending and (2) the postco nviction court clearly erred in finding that his prior
convictions for third-degree assault and false imprisonment aro se out of separate
behavioral incidents and therefore should each be counted in hi s criminal-history score.
We conclude that, on the procedural posture of this case, the state bore the burden of proof
regarding Altringer’s criminal-hi story score. We also conclude that the postconviction
court erred in finding that the t wo prior convictions arose out of separate behavioral
incidents. We therefore reverse and remand for resentencing based on the correct criminal-
history score.
FACTS
In October 2016, Altringer pleaded guilty to one count of first-degree sale of ten or
more grams of methamphetamine in exchange for the dismissal of other charges. The
parties agreed to a sentence ca pped at the presumptive sentence under the Minnesota
Sentencing Guidelines.
The district court sentenced Altringer to 158 months in prison, w h i c h w a s t h e
presumptive sentence, under the 2 015 sentencing guidelines grid , for a first-degree
controlled substance conviction for a person with a criminal-hi story score of six. In
determining Altringer’s criminal -history score, the district co urt assigned one point for
Altringer’s conviction for third- degree assault and one point f or his conviction for false
imprisonment, both of which were entered following his 2005 gui lty plea to charges
relating to conduct occurring from July 24 through July 27, 200 3 , a g a i n s t h i s t h e n -

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girlfriend. Altringer appealed his 158-month sentence in this case but, in September 2017,
filed a motion to stay the appeal pending postconviction procee dings, which this court
granted.
In October 2017, Altringer filed a petition for postconviction relief, alleging that he
was entitled to be resentenced in accordance with the Drug Sentencing Reform Act of 2016
(DSRA). See State v. Kirby, 899 N.W.2d 485, 496 (Minn. 2017) (holding that the doctrine
of amelioration applies to a defendant whose conviction was not yet final when the DSRA
took effect). Altringer also asserted, for the first time, that his criminal-history score was
incorrect and should be five, not six, because the 2005 convict ions arose out of the same
behavioral incident.
In April 2018, the postconviction court denied Altringer’s petition, in part. Placing
the burden of proof on Altringer, the postconviction court found that his 2005 convictions
for assault and false imprisonmen t arose from separate behavior al incidents sufficient to
justify the two points they adde d t o h i s s c o r e a n d t h a t h i s c r iminal-history score was
therefore correct. Because the state conceded that Altringer was entitled to be resentenced
under the DSRA, the postconvicti on court granted that relief, a nd Altringer was later
resentenced to 125 months’ imprisonment.
In June 2018, Altringer’s direct appeal was reinstated.
D E C I S I O N
Appellate courts review the denial of a petition for postconviction relief for an abuse
of discretion. Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015). Appellate courts “review
legal issues de novo, but on fact ual issues [the courts’] review is limited to whether there

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is sufficient evidence in the r ecord to sustain the postconvict ion court’s findings.” Id.
(quotation omitted). A postconviction court abuses its discreti on if it misinterprets or
misapplies the law. Johnson v. State , 733 N.W.2d 834, 836 (Minn. App. 2007), review
denied (Minn. Sept. 18, 2007).
I. The district court erred in placing the burden of proof on A ltringer while his
timely direct appeal is stayed and pending before this court.

Altringer argues that the district court committed legal error by placing the burden
of proof on him during his postconviction challenge to his criminal-history score while his
direct appeal was pending. We agree.
At sentencing, the state bears the burden “to show that a prio r conviction qualifies
for inclusion within the crimina l-history score” and that the c riminal-history score is
calculated correctly. Williams v. State , 910 N.W.2d 736, 740 (Minn. 2018). The state
argues, however, that the burden of proof shifted to Altringer because he raised the
criminal-history-score issue on postconviction review and, unde r the postconviction
statute, the petitioner generally bears the burden of proof. See Minn. Stat. § 590.04, subd. 3
(2016) (“Unless otherwise ordered by the court, the burden of proof of the facts alleged in
the petition shall be upon the petitioner to establish the facts by a fair preponderance of the
evidence.”).
That general rule, however, does not apply in the procedural p osture here. Altringer
filed a direct appeal; he sought and obtained a stay of that ap peal for purposes of filing a
postconviction petition. In that petition, Altringer raised, for the first time, the issue of his
criminal-history score. Appellate review of a defendant’s crimi nal-history score may not

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be forfeited, State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007), “because a sentence
based on an incorrect criminal hi story score is an illegal sent ence.” State v. Outlaw, 748
N.W.2d 349, 356 (Minn. App . 2008) (quotation omitted), review denied (Minn. July 15,
2008).
In Outlaw, we reviewed whether the state had met its burden of proving t hat the
defendant’s out-of-state convictions were felonies for purposes of sentencing enhancement
and concluded that it had not; but, because the defendant had n ot objected to the district
court’s determinations at sentencing, we remanded for resentencing and permitted the state
to further develop the record. Id. In other words, the burden of proof on resentencing would
remain with the state. What happe ned here is similar. Altringer did not object to his
criminal-history score at the district court but essentially ra ised the issue on appeal by
seeking a stay of the appeal for postconviction review in order to develop the record. The
postconviction court should have decided the criminal-history i ssue with the burden of
proof remaining on the state, which we would then review on the reinstated direct appeal.
See State v. Beecroft, 813 N.W.2d 814, 836 (Minn. 2012) (“When a defendant initially files
a direct appeal and then moves for a stay to pursue postconvict ion relief, we review the
postconviction court’s decisions using the same standard that we apply on direct appeal.”).
This process accords with caselaw dealing with a motion to cor rect sentence filed
during the defendant’s direct appeal period. In State v. Goff, the appellant filed a motion to
correct his sentence, challenging his criminal-history score, during the direct appeal period.
418 N.W.2d 169, 172 (Minn. 1988). The supreme court held that, because “the defendant
filed his motion before the time for direct appeal from judgment of conviction had expired,”

6
he “did not bear the ultimate burden of proof.” Id.; see also State v. Maley , 714 N.W.2d
708, 714-15 (Minn. App. 2006) (holding that the state has the burden of proof on a motion
to correct a sentence filed duri ng the direct appeal period). I n contrast, when a defendant
files a motion to correct sentence after the time for direct appeal has passed, the supreme
court held in State v. Williams , the defendant bears the burden of proving the criminal-
history score was incorrect. 910 N.W.2d at 743.
The state argues that this case is more like Williams because Altringer, in reality, is
challenging the imposition of two sentences by the district court in 2005, well beyond the
direct-appeal period for that case. We disagree. A sentencing court is obligated to calculate
a defendant’s correct criminal-history score, including by deci ding whether prior
convictions were based on conduct that was part of a single beh avioral incident. Bixby v.
State, 344 N.W.2d 390, 394 (Minn. 19 84). Altringer is challenging th e criminal-history
score that was calculated in this case; he is not collaterally challenging the actions of the
district court in 2005.
In sum, Altringer timely appealed and then stayed his appeal to pursue
postconviction relief. Similar to Goff, the state continued to bear the burden to prove that
Altringer’s criminal-history score was calculated correctly—specifically, that his two 2005
convictions arose out of separate behavioral incidents sufficie nt to justify two criminal-
history-score points. The district court therefore committed le gal error in assigning
Altringer the burden of proof on his postconviction petition.

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II. The record does not support th e finding that Altringer’s 2005 convictions arose
from separate behavioral incidents.

Altringer further argues that the evidence does not satisfy the state’s burden to
prove, by a preponderance of the evidence, that his 2005 convic tions arose from separate
behavioral incidents. We agree.
This court reviews the district court’s determination of a defe ndant’s criminal-
history score for an abuse of discretion. See Maley, 714 N.W.2d at 711. A defendant’s
criminal-history score includes points for each prior felony conviction. State v. Oberg, 627
N.W.2d 721, 723 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001); Minn. Sent.
G u i d e l i n e s 2 . B ( 2 0 1 8 ) . I n c a s e s w h e r e t w o p r i o r c o n v i c t i o n s a r ose from the same
behavioral incident, however, onl y one conviction should be cou nted towards the
defendant’s criminal-history score. See State v. Kutchara , 350 N.W.2d 924, 928 (Minn.
1984).
To determine whether the crimes were part of a single behaviora l incident, a court
looks at (1) “whether the offenses occurred at substantially the same time [and place]” and
(2) “whether they were motivated by an effort to obtain a single criminal objective.” State
v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016). “Whether the offenses were part of a single
behavioral incident is a mixed question of law and fact,” so ap pellate courts “review the
district court’s findings of fact for clear error and its appli cation of the law to those facts
de novo.” Id.
In support of his postconvic tion petition, Altringer submitted the amended
complaint underlying the 2005 convictions. According to that complaint, on July 24, 2003,

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Altringer picked up his girlfriend, M.L., from a job interview. He was visibly angry and
upset, and accused her of cheating on him. Altringer backhanded M.L. across the face, and
threatened to kill her. Fearing for her life, M.L. jumped out o f the vehicle and ran away.
Altringer followed her, and told her to get back in the car, which she did. The two of them
drove home.
The next day, in the early morning of July 25, 2003, Altringer and M.L. were lying
in bed. Altringer asked M.L. to have sex with him, and she refu sed. Altringer became
angry, got on top of her, and punched her in the face with a closed fist. Altringer then threw
M.L. on the floor, and repeatedly punched and kicked her. From then on, M.L. “begged
and pleaded” with Altringer to bring her to the hospital, but he refused. M.L. lay on the bed
until the afternoon of July 26, w hen she moved to the couch. M. L. continued to beg
Altringer to bring her to the hospital, but he refused, even as she was urinating blood. M.L.
remained on the couch until the afternoon of July 27, when Altr inger agreed to bring her
to the hospital.
Altringer was charged with a total of eight criminal counts, in cluding one count of
third-degree assault for conduct “on or about July 24 through July 27, 2003” (count 6), and
two counts of kidnapping—one for conduct “on or about July 24, 2003” (count 2), and one
for conduct “on or about July 24 through July 27, 2003” (count 5). The kidnapping and
assault charges were all against the same victim. Aside from the identity of the victim and
the dates related to each count, the amended complaint does not specify what facts support
which charges. In March 2005, A ltringer pleaded guilty to third -degree assault and false

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imprisonment, and, in November 2005, the district court sentenc ed him to 13 months for
the false-imprisonment conviction and 18 months for the third-degree-assault conviction.
The state argues that the false-i mprisonment conviction and the assault conviction
occurred in separate behavioral incidents. It contends that the false imprisonment occurred
on the first day, July 24, when Altringer forced M.L. to get ba ck in the car, and that the
assault occurred on the second day, July 25, when Altringer violently attacked M.L. in their
bedroom. The complaint, however, does not so specify. As for the false imprisonment, that
offense is not charged in the complaint. To the extent that fal se imprisonment was, as the
state asserts, a lesser-included offense of one of the kidnapping counts, it is unclear whether
the relevant kidnapping count is the one that was alleged to have occurred on July 24 (count
2) or the one alleged to have occurred on July 24 through 27 (c ount 5). The false
imprisonment thus could have occurred on the second day, in connection with committing
the assault, or after the assau lt, when Altringer refused to le t M.L. go to the hospital.
Similarly, the assault could have occurred on the first day, wh en Altringer struck M.L. in
the face while they were in the car.
Without more information, such as the plea colloquy, it is impossible to know what
actual facts the convictions correlate to. It is therefore impossible to determine whether the
offenses occurred at substantially the same time or place or wh ether they were motivated
by the same criminal objective. Altringer argues that the facts as alleged in the amended
complaint could support the determination that he committed false imprisonment in order
to facilitate an assault or in or der to avoid apprehension for an assault and that, in either
case, the offenses would have been part of the same behavioral incident. Without evidence

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establishing the factual bases for the convictions, the record does not support findings to
the contrary.
The state argues, however, that additional evidence supports th e finding that the
offenses did not arise from a single behavioral incident. It ci tes to the fact that Altringer
received two sentences in 2005, s uggesting that the district co urt in that case determined
that the offenses arose in sep arate behavioral incidents. See Minn. Stat. § 609.035 (2002)
(prohibiting multiple sentences f or offenses committed as part of a single behavioral
incident). The state also cites to the fact that the sentencing worksheets at the time indicated
that the false-imprisonment conviction was sentenced first and the third-degree assault was
sentenced second. From these fac ts, the state argues, the postc onviction court could infer
that the district court in 2005 found that the offenses occurre d in the manner the state
asserts: the false imprisonment on July 24 and the assault on July 25, in separate behavioral
incidents. But the possibility of such an inference is insufficient to satisfy the state’s burden
of proof; another inference is that the question of the same behavioral incident was simply
not raised in the 2005 case. Moreover, even if the district cou rt in 2005 found that the
offenses arose from separate beh avioral incidents, that finding does not govern the
postconviction court here. In Bixby, the supreme court explained that the sentencing court
for the current offens e “is the proper court for deciding” whet her prior convictions arose
from the same behavioral incident. 344 N.W.2d at 394 (holding, based on trial transcript,
that two earlier offenses at issue had been part of same behavioral incident notwithstanding
contrary determination by district court at the time).

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The state also relies on the di strict court’s probable-cause or der in the 2005 case.
But that order, which finds probable cause for both the July 24 kidnapping count and the
July 24 through 27 kidnapping count, does not establish when th e false imprisonment for
which Altringer was convicted actually occurred.
In sum, taking into account the state’s burden of proof, we conclude that the record
evidence does not support the postconviction court’s determinat ion that Altringer’s 2005
convictions arose from separate behavioral incidents. The inclusion of both convictions in
his criminal-history score is therefore an abuse of discretion.
III. The error in Altringer’s cri minal-history score is not harmless.
The state argues that even if the district court did err when i t concluded that
Altringer’s 2005 convictions arose from separate behavioral inc idents, the error was
harmless because Altringer would have been senten ced to the sam e prison term. We
disagree.
Citing an updated sentencing work sheet submitted prior to postconviction, the state
asserts that Altringer actually had a criminal-history score of seven. Therefore, even if one
criminal-history score point was deducted for one of Altringer’ s 2005 convictions, he
would still have a criminal-histor y score of six. This argument is not persuasive for two
reasons: (1) the district court independently calculated Altrin ger’s criminal-history score
to be six, regardless of the updated sentencing worksheet, and (2) the state had already
conceded that the original sentencing worksheet contained an error in assigning a score of
seven instead of six and the updated worksheet merely continued that error.

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First, a sentencing worksheet is only a tool that may be consi dered in calculating a
criminal-history score. See State v. Walsh, 456 N.W.2d 442, 443 (Minn. App. 1990) (“The
sentencing guidelines worksheet is an important tool in the sentencing process, but it is not
the sentence.”). Here, while the u pdated sentencing worksheet d id assign Altringer a
criminal-history score of seven, the district court at postconv iction ultimately found that
Altringer’s score was six and imposed the presumptive guideline sentence based on that
score. The state’s assertion that Altringer would “still . . . have been sentenced to the same
identical prison term,” even if one point was dropped for his 2 005 convictions, is simply
not accurate, because the distric t court sentenced Altringer ba sed on a criminal-history
score of six, not seven.
Second, at the sentencing hearing, the state acknowledged that Altringer’s criminal-
history score should be six instead of seven. The state agreed with defense counsel that the
sentencing worksheet erred in assigning 1.5 points for a 2009 d rug-related offense from
Michigan and confirmed that it sh ould actually be weighted at . 5 points, thus dropping
Altringer’s score to six. Because the updated sentencing worksheet was submitted only to
reflect the new guideline recommendation under the DSRA, it contained the same 1.5 score
for the 2009 Michigan offense. In other words, there was nothin g new in the updated
sentencing worksheet in terms of the calculation of Altringer’s criminal-history score. It
can therefore be inferred that the updated sentencing worksheet made the same error as in
the original sentencin g worksheet, which the state previously c onfirmed. This is further
demonstrated by the fact that the state, in its answer to Altri nger’s petition for
postconviction relief, did not argue that his criminal-history score was actually seven. In

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fact, the state asserted in its postconviction briefing that the score was “properly calculated”
by the district court at sentencing. The state cannot now argue that seven is the correct
score when it agreed with the score of six at sentencing and never argued otherwise during
the postconviction proceedings.
Because the district court senten ced Altringer on a criminal-hi story score of six
instead of five, the error was not harmless. We therefore rever se and remand for
resentencing with a criminal-history score of five.
Reversed and remanded.