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This opinion will be unpublished and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
A17-1387

State of Minnesota,
Respondent,

vs.

Sylvester Antoine Townsend,
Appellant.

Filed May 21, 2018
Reversed and remanded
Connolly, Judge

Dakota County District Court
File No. 19HA-CR-15-1858

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

James Backstrom, Dakota County Attorney, Chip Granger, Assistant County Attorney,
Hastings, Minnesota (for respondent)

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

Considered and decided by Jesson, Presiding Judge; Connolly, Judge; and Reyes,
Judge.
2
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges his sentence for third -degree possession of a controlled
substance, arguing that the district court abused its discret ion in calculating his criminal -
history score (CHS) because his 2014 conviction for fifth -degree c ontrolled-substance
crime should not have been counted as half a point . Because the record does not indicate
whether appellant’s 2014 offense would be classified as a gross misdemeanor under the
Minnesota Drug Sentencing Reform Act (DSRA), we reverse and r emand his sentence so
the state may further develop the record on that conviction.
FACTS
Appellant Sylvester Townsend, who was convicted of fifth -degree controlled -
substance crime in 2014, was charged with third-degree controlled-substance crime in June
2015 and with two Domestic Abuse No Contact Order (DANCO) violations, first-degree
criminal damage to property, first-degree burglary, and domestic assault in 2016.
Appellant pleaded guilty to the controlled -substance crime and th e DANCO
violations; other charges were dismissed. He and respondent the State of Minnesota agreed
that appellant’s CHS was six. For the controlled-substance crime, he was sentenced to 36
months in prison, a downward durational departure of 13 months from the 49-68 month
range prescribed by the Sentencing Guidelines; for each of the DANCO violations, he was
sentenced to 30 months in prison, concurrent.
3
He challenges his sentence, arguing that his CHS was miscalculated because, under
the DSRA, his fifth -degree controlled-substance crime was not a felony, so his CHS is
actually five and therefore the guidelines range is 44-61 months.
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).
When sentencing appellant, the district court said it would accept the plea agreement
“with the understanding that [appellant] at the time that this offense occurred and at the
time of sentencing here today . . . has a total [CHS] of six points.” Appellant’s sentencing
worksheet shows a CHS of six derived from one custody status point, one
misdemeanor/gross misdemeanor point, and four felony points: one and one-half for drive-
by discharge of a firearm; one for theft of a motor vehicle, one for domestic assault, and
one-half for fifth-degree possession of a controlled substance.
Appellant now argues that the district court abused its discretion by accepting the
parties’ agreement as to his CHS of six because, under the DSRA, a fifth-degree possession
offense is a gross-misdemeanor, not a felony. This would reduce his number of points to
five and one half rather than six and give him a CHS of five . See Minn. Sent. Guidelines
2.B.1.i (2016) (providing that partial points are rounded down to the nearest whole
number). Appellant’s 36-month sentence if his CHS were five instead of six would be a
downward durational departure of 8 months instead of 13 months.
4
But not all fifth-degree possession offenses become gross misdemeanors under the
DSRA.1 Appellant’s sentencing worksheet indicates that the offense resulting in his March
2014 conviction was “Drugs – 5th Degree – Possess Schedule 1,2,3,4 – Not Small Amount
Marijuana.” In 2014, prior to the DSRA, fifth-degree controlled-substance crimes included
possession of “one or more mixtures containing a controlled substance classified in
Schedule I, II, III, or IV, except a small amount of marijuana.” Minn. St at. § 152.02 5,
subd. 2(a)(1) (2014). On August 1, 2016, under the DSRA, possession became a gross
misdemeanor if the amount of a controlled substance other than heroin was less than 0.25
grams or one dosage unit or the amount of heroin was less than 0.05 grams of heroin. See
Minn. Stat. § 152.025, subd. 4 (a) (2016). Although appellant says his “2014 conviction
for fifth-degree possession of a controlled substance is not currently a felony,” he provides
no evidence that his 2014 offense was in fact reclassified as a gross misdemeanor. Nothing
in the record indicates whether appellant’s March 2014 offense involved less than 0.25
grams or one dosage unit of a non -heroin controlled substance or less than 0.05 grams of
heroin, i.e., whether it was a felony or a gross misdemeanor under the DSRA.
When “[the] record [indicated that] the state ha[d] not proved that at least [five] of
[the defendant’s] 11 prior [out of state] convictions [were] felonies under Minnesota law,”
the sentence based on a determination that the prior convictions were felonies was reversed
and remanded. State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008) , review denied

1 Appellant is aware of this: he argues in his brief that the DSRA “reduced the severity of
most fifth-degree controlled-substance crimes” and that “a fifth -degree possession
controlled substance is now generally a gross misdemeanor offense.” (Emphasis added.)
5
(Minn. July 15, 2008). On remand, because the defendant “did not object to the district
court’s determination that his out -of-state convictions were felonies[,]” the state was
“permitted to further develop the sentencing record so that the district court [could]
appropriately make its determination.” Id. Thus, the appropriate remedy here is to reverse
the sentence and remand the case so the state may provide factual details of appellant’s
2014 offense relevant to determining whether it would now be classified a s a felony or a
gross misdemeanor.2
Reversed and remanded.

2 Appellant also argues that he is entitled to be resentenced under State v. Kirby , 899
N.W.2d 485, 496 (Minn. 2017) (holding that, when the DSRA reduced a defendant’s
presumptive sentencing range from 138 -192 months to 110 -153 months, it “plainly
mitigate[d the defendant’s] punishment”). But, as appellant concedes, Kirby is
distinguishable because the red uction on which appellant relies , i.e., the removal of the
mandatory maximum se ntence for those with a CHS of one , does not apply to appellant .
See id. (holding that the reduction invoked must affect the defendant who invokes it).