A17-1510

This opinion will be unpublished and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
A17-1509
A17-1510

State of Minnesota,
Respondent,

vs.

Heather Marie Krumrie,
Appellant.

Filed June 18, 2018
Affirmed in part, reversed in part, and remanded
Connolly, Judge

Freeborn County District Court
File No. 24-CR-17-110

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

David J. Walker, Freeborn County Attorney, Albert Lea, Minnesota (for respondent)

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

Considered and de cided by Connolly, Presiding Judge; Worke, Judge; and Smith,
John, 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
CONNOLLY, Judge
Appellant challenges her conviction and sentence, arguing that her guilty plea was
invalid because it lacked an accurate factual basis and her criminal -history score (CHS)
was incorrectly calculated because the offense leading to her 2010 conviction has been
reduced to a misdemeanor by the Drug Sentencing Reform A ct (DSRA). Because a
sufficient factual basis supports appellant’s conviction, we affirm it; because the record
does not inc lude sufficient information on the offense leading to appellant’s 2010
conviction, we reverse her sentence and remand for the state to further develop the record.
FACTS
In January 2017, appellant Heather Krumrie was charged in file 24-CR-17-110 (file
110) with fifth -degree possession of a controlled substance, fourth -degree assault, and
introducing contraband into jail. She also received a trespass notice from a store.
In February 2017, appellant violated the trespass notice and returned to the store,
where she was seen removing socks from her purse and trying to put them on a shelf. Police
informed her that she was under arrest for shoplifting. She struggled with the police when
they tried to handcuff her and was taken to jail. As a result of this incident, appellant was
charged in file 24 -CR-17-306 (file 306) with fifth -degree possession of a controlled
substance, third-degree burglary, and obstruction of legal process.
The two files were combined for resolution. Appellant pleaded guilty to fifth-degree
possession of a controlled substance and introducing contraband into jail in file 110 and to

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fifth-degree possession of a controlled substance, amended fourth -degree burglary, and
obstruction of legal process in file 306.
Appellant’s sentencing worksheet showed one point for misdemeanor/gross
misdemeanor offenses from 2008 through 2017 and two and a half points for felonies: half
a point for fifth-degree controlled-substance crime in 2010, one and a half points for third-
degree controlled-substance sale in 2013, and half a point for “Drugs –5th Degree – Possess
Schedule 1,2,3,4 – Not Small Amount Marijuana” in 2017. A felony-point total is rounded
down to the nearest whole number, making appellant’s felony CHS two points.1 Thus, she
had a CHS of three (one misdemeanor/gross misdemeanor point and two felony points).
Based on the CHS of three, the district court sentenced appellant in file 110 to a stay
of imposition on fifth-degree controlled-substance crime and to time served on introducing
contraband; in file 306, she was sentenced to 15 months, stayed for five years, on fifth -
degree controlled -substance crime and to time served on fourth -degree burglary and
obstructing legal process.
Following a probation violation, the stay of imposition in file 110 was vacated and
appellant was sentenced to 13 months, stayed for five years; an intermediate sanction of 60
days in jail was added to the sentence in file 306.
The appeals for the two files were consolidated. Appellant challenges her
conviction of fourth-degree burglary on the ground that her guilty plea lacked a sufficient
factual basis and her sentence on the ground that her CHS was two, not three, beca use the

1 Minn. Sent. Guidelines, 2.B.1.i. (2016).

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fifth-degree controlled-substance offense committed in 2010 may have been reduced to a
gross misdemeanor by the DSRA.
D E C I S I O N
1. Guilty Plea
“Assessing the validity of a plea presents a question of law that we review de novo.”
State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).
Appellant pleaded guilty to fourth -degree burglary with an underlying crime of
misdemeanor disorderly conduct. The district court asked appellant if she understood that,
because of her previous offense in the store, she would commit trespass if she entered it,
and that, if she committed another crime in the store, “that could even bump it up to a
burglary.” Appellant answered “Yes.” The court then questioned her:
Q. And so while you were in there [i.e., in the store], do
you agree that your conduct was disorderly?
A. Yes, I do.
Q. Sufficiently to be charged as Disorderly Conduct . . . ?
A. Yes.
Q. You fought with them? You argued with them?
A. Yes.
Q. You didn’t cooperate with them?
A. Yes.
Q. They tried to cuff you. You wrestled, fought. You were
thrown to the floor. They had to roll you over and put cuffs on
you and drag you out [of the store]?
A. Yes.
Q. And you would agree that that was probably disruptive
and alarming and probably frightened some folks in the store
itself?
A. Yes.
. . . .
Q. [W]hile you were there, when law enforcement showed
up, they were . . . trying to get you out of the store, trying to
arrest you?

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A. Yes.
. . . .
Q. Did they say, “You’re under arrest?”
A. Yes.
Q. Did they say, “You’re coming with me”?
A. Yes.
Q. Did you refuse to do so?
A. Yes.
Q. What’d you do?
A. I fought with them.
Q. Tell me exactly what happened.
A. I pushed them away. Kept pushing them.
. . . .
Q. . . . Was it totally passive?
A. It wasn’t passive.
Q. What was it?
A. It was aggressive.
. . . .
Q. Did you hit?
A. Maybe.
Q. Did you kick?
A. I’m sure.
. . . .
Q. So it was a pretty good struggle?
A. Yes.
Q. It – it could be fairly described as a fight?
A. It could.

Appellant’s attorney also questioned her.
Q. . . . [S]pecifically, when you were in the store . . . your
conduct in the store, is it true that . . . officers, first of all, had
confronted you within the . . . store?
A. Yes.
. . . .
Q. And is it true that you told the officers . . . basically, that
you didn’t give a f---, five times . . . in the store?
A. Yes.
Q. And you were – you were saying that loudly?
A. Yes.
Q. And there was some other language that you used, as
well?
A. Yes.

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Q. And you weren’t being cooperative with the officers’
request that you exit the store?
A. No.
Q. And under the circumstances, given what you were
doing, your presence in the store having been subject to a
trespass notice, your language toward the officer, that was
something that was conduct that reasonably would have
aroused alarm or resentment in others. Is that –is that true?
A. Yes.

A person is guilty of disorderly conduct who “(1) engages in brawling or fighting;
or . . . (3) engages in offensive, obscene, abusive, boisterous, or noisy conduct or in
offensive, obs cene, or abusive language tending reasonably to arouse alarm, anger, or
resentment in others.” Minn. Stat. § 609.72, subd. 1 (2016). Appellant’s answers to the
questions asked by the district court and by her attorney provide an ample factual basis for
her guilty plea to fourth -degree burglary with an underlying crime of misdemeanor
disorderly conduct.
Appellant claims that “ [t]he complete record, including the complaint and
[appellant’s] statements at the plea hearing, suggests that any criminal disorder ly conduct
occurred after the police escorted her from the store.” But the record before the district
court at the time it found appellant guilty included her testimony at the hearing , and that
testimony makes it clear that appellant committed disorderly conduct while in the store by
refusing to leave until dragged out, fighting and arguing with the police, and using loud,
alarming language.
The fact that the complaint notes that appellant also engaged in disorderly conduct
after she was taken outside t he store does not invalidate appellant’s guilty plea to fourth -
degree burglary, which is supported by sufficient evidence.

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II. Sentencing
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).
At the sentencing hearing, the district court said
I have a sentencing worksheet indicating . . . that you are here
for sentencing on another fifth -degree possession charge. . . .
And in this one, your criminal history score [(CHS)] is three,
meaning the presumptive disposition in this case is a stay, or a
probationary term, and the presumptive duration is 15 months
in prison, should you execute this.
Do both counsel agree with the worksheet?
Both counsel answered, “Yes.” The presumptive sente nce for fifth -degree controlled -
substance crime for an individual with a CHS of three is 15 months, stayed; the presumptive
sentence for an individual with a CHS of two is 13 months, stayed.
Appellant now argues that her CHS was actually two, not three, because, under the
DSRA, a fifth-degree controlled-substance offense is now “generally a gross-misdemeanor
offense,” not a felony offense. But appellant’s 2017 fifth-degree possession offense was a
felony and demonstrates that the DSRA did not convert all fifth-degree possession offenses
to gross misdemeanors. Appellant is aware of this; she argues that the DSRA “reduced the
severity of most fifth-degree controlled-substance possession offenses.” (Emphasis added.)
Fifth-degree controlled -substance crime s can be either sale or possession. The
DSRA did not change the sentence for sale crimes , and it changed the sentence for
possession of nonheroin controlled substances only if the amount was “less than 0.25 grams

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or one dosage unit or less if the controlled substance was possessed in dosage unit s.” See
Minn. Stat. § 152.025, subd. 4(a) (2016).
It is not known whether appellant’s 2010 conviction for fifth -degree controlled -
substance crime was for sale, in which case the DSRA would not have reclassified the
felony as a gross misdemeanor, or for po ssession, in which case the DSRA might have
reclassified it as a gross misdemeanor, depending on what the substance was and what
amount of it was possessed.
When “the record [did] not indicate that the state ha[d] proved that at least five of
[a defendant’s] 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, 355 (Minn. App. 2008), review denied
(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 [co uld]
appropriately make its determination.” Id. at 356. Thus, the appropriate remedy here is
reversing the sentence and remanding it to the district court so the state can provide factual
details of appellant’s 2010 fifth -degree controlled -substance offe nse relevant to
determining whether it would now be classified as a felony or as a gross misdemeanor.
Affirmed in part, reversed in part, and remanded.