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This opinion will be unpublished and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
A17-1299

State of Minnesota,
Respondent,

vs.

Terran Marie Stukey,
Appellant.

Filed April 2, 2018
Reversed and remanded
Cleary, Chief Judge

Itasca County District Court
File No. 31-CR-17-175

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

John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant County Attorney, Grand
Rapids, Minnesota (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Cleary, Chief Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant Terran Marie Stuke y challenges the district c ourt’s calculation of her
criminal-history score, arguing that her first fifth-degree drug conviction should be counted
2
as a gross misdemeanor under the laws and se ntencing guidelines in effect at the time of
her offense. We reverse and remand for a de termination of whethe r appellant’s offense
qualifies as a gross misdemeanor.
FACTS
Appellant sold 15.47 grams of meth amphetamine to a police informant on
September 19, 2016. She was charged with se cond-degree sale of a controlled substance
on January 18, 2017. The complaint noted appellant’s multiple prior convictions, including
three prior felony drug convictions, and an additional pending felony drug charge. The
district court calculated appellant’s criminal-history score, assigning her one and one-half
criminal-history points for a third-degree drug sale conviction from 2010 and one-half of a
criminal-history point for each of her fifth-degree drug possession convictions—two 2010
convictions and one 2013 conviction—for a total of three criminal-history points.
Appellant’s criminal-history score of thre e and the offense-severity level of seven
set the range for a presumptive sentence betw een 67 and 93 months. Appellant pleaded
guilty to the charge against her on May 22, 2 017. Per the parties’ agreement, appellant
received a bottom-of-the-box sentence of 67 months. This appeal follows.
D E C I S I O N
Appellant argues that her first fifth- degree drug possession conviction from 2010
meets the criteria to be punish ed as a gross misdemeanor unde r the laws in effect at the
time of the offense and sentencing guidelines, and therefore the district court erred in
assigning her one-half of a criminal-history point for that offense. It is unclear whether
3
this conviction was properly categorized as a felony or whether it should have been counted
as a gross misdemeanor.
Construction of the sentencing guidelines is a question of law we review de novo.
State v. Zeimet , 696 N.W.2d 791, 793 (Minn. 2005). A sentence based on an incorrect
criminal-history score is an illegal sentence correctable at any time. State v. Maurstad, 733
N.W.2d 141, 148 (Minn. 2007) (citing Minn. R. Crim. P. 27.03, subd. 9). “The
presumptive sentence . . . is determined by the Sentencing Guidelines in effect on the date
of the conviction offense . . . to ensure that the Guidelines abide by the federal and state Ex
Post Facto Clauses.” State v. Kirby , 899 N.W.2d 485, 493 (Minn. 2017) (quotation
omitted). The guidelines in effect at the time of appellant’s offense were the pre-November
17, 2016 version of the 2016 Minnesota Sentencing Guidelines.
The 2016 Drug Sentencing Reform Act (DSRA) made large-scale changes to
Minnesota’s drug laws, including amendments to certain statutory provisions that establish
the threshold quantities of drugs for certain crimes. See 2016 Minn. Laws ch. 160, §§ 3-7,
at 577-85. The DSRA created a new category of fifth-degree drug possession punishable
as a gross misdemeanor. Minn. Stat. § 152.025, subd. 4(a) (2016) now provides that
offenders who have “not been previously convicted of a viol ation of this chapter or a
similar offense in another jurisdiction” an d who possess “less than 0.25 grams or one
dosage unit or less” of drugs other than heroin or “less than 0.05 grams” of heroin are guilty
of a gross misdemeanor. All other violations of Minn. Stat. § 152.025 (2016) that do not
4
meet the criteria described in subdivision 4( a) are punished as felonies. Minn. Stat.
§ 152.025, subd. 4(b).
The Minnesota Sentencing Guid elines are clear: “[t]he severity level ranking in
effect at the time the current offense was committed determines the weight assigned to the
prior offense.” Minn. Sent. Guidelines 2.B.1 (2016). At the time of appellant’s instant
offense, the DSRA provisions were in full effect and felony fifth-degree drug possession
in violation of Minn. Stat. § 152.025, subd. 4(b) was assigne d a severity level of two,
meaning that prior convictions for felony fifth-degree possession would earn an offender
one-half of a criminal-history point. Minn. Sent. Guidelines 2.B.1.a; 5.B (2016). There is
no express provision addre ssing the newly created offe nse of gross misdemeanor fifth-
degree drug possession, but all prior gross misdemeanor convictions “count as units
comprising criminal history points” and “[f]our units equal one criminal history point” with
no partial credit given for less than four units. Minn. Sent. Guidelines 2.B.3.a. (2016).
Accordingly, appellant was entitled to have her 2010 conviction counted as either a gross
misdemeanor worth one “unit” under the newly amended Minn. Stat. § 152.025, subd. 4(a)
or as a severity level two felony under Minn. Stat. § 152.025, subd. 4(b) depending on the
specific facts underlying her 2010 conviction.1

1 The state argues that recalculation is not necessary and relies in part on a comment to the
sentencing guidelines enacted after the date of appellant’s current offense. The comments
to the sentencing guidelines are “only advisory and not binding on the courts.” Asfaha v.
State, 665 N.W.2d 523, 526 (Minn. 2003). The comments, as part of the guidelines, are
subject to the same ex post facto consid erations as the guidelines themselves. See Kirby,
899 N.W.2d at 493-94. Only the comments in effect on the date of a defendant’s offense
serve their advisory function.
5
The record lacks specific information about appellant’s 2010 conviction. Her first
offense occurred on May 8, 2008, and she was convicted on January 27, 2010. At the time,
all fifth-degree drug crimes were punished as felonies. There is no information in the
record regarding the type or amount of cont rolled substance that appellant possessed nor
does appellant expressly claim that she posse ssed less than 0.25 grams of a controlled
substance at the time of her 2010 conviction. On this record, whether appellant’s 2010
conviction meets the criteria to be counted as a gross misdemeanor for purposes of
calculating her criminal-history score is unclear.
The state bears the burden of proving a defendant’s criminal history for the purposes
of the sentencing guidelines. State v. Edmison , 379 N.W.2d 85, 87 n. 1 (Minn. 1985).
Where the state fails to meet its burden of proving prior co nvictions and the convictions
were considered by the district court, the proper remedy is reversal of the sentence and
remand for resentencing. State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008), review
denied (Minn. July 15, 2008). On remand, the state is permitted to “further develop the
sentencing record so that the district court can appropriately make its determination” where
the defendant did not object to the district court’s initial determination. Id.
Because the record lacks in formation about the type or amount of controlled
substances that appellant was convicted of possessing in 2010, we reverse and remand for
a determination of whether appellant’s prior crime was properly weighted as a prior felony
conviction or should have be en counted as a gross misdem eanor. And because appellant
did not object to the district court’s determ ination that her 2010 conviction was a felony,
6
the state is permitted to further develop th e sentencing record w ith information about
appellant’s prior conviction so that the district court can make the proper determination on
the weight assigned to appellant’s 2010 conviction.
Reversed and remanded.