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This opinion will be unpublished and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
A18-0616

State of Minnesota,
Respondent,

vs.

Cody Douglas Thurstin,
Appellant.

Filed April 15, 2019
Affirmed
Cochran, Judge

Crow Wing County District Court
File No. 18-CR-17-3281

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

Donald F. Ryan, Crow Wing County Attorney, Brainerd, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. W ithall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten , Presiding Judge; Reyes, Judg e; and Cochran,
Judge.

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U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Cody Douglas Thurstin challenges the application of t he Minnesota
Sentencing Guidelines, arguing that the sentencing enhancements included in the
guidelines result in unfair double punishment. We affirm.
FACTS
In 1999, Thurstin was convicted of first-degree criminal sexual conduct (CSC) and
sentenced to a probationary stay of imposition for 30 years. I n August 2017, the state
charged Thurstin with use of a minor in a sexual performance. Thurstin pleaded guilty
with no agreement as to sentencing. The parties agreed during the plea hearing that
Thurstin had a criminal-history score of five. The district co urt sentenced Thurstin to a
presumptive guidelines sentence based on his criminal-history s core of five. This appeal
follows.
D E C I S I O N
Thurstin argues that the applic ation of the sentencing guidelin es to his current
conviction results in unfair double punishment for past conduct by factoring his past CSC
conviction into his criminal history score more than once in determining his sentence. He
urges this court to order resentencing pursuant to this court’s authority under Minn.
Stat. § 244.11, subd. 2(b) (2016) t o d e t e r m i n e w h e t h e r a s e n t e nce is “inconsistent with
statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or
not warranted by the findings of fact issued by the district court.” “The interpretation of a

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statute and the sentencing guidelines are questions of law that we review de novo.”
State v. Williams, 771 N.W.2d 514, 520 (Minn. 2009).
The legislature has the “power t o define the conduct which cons titutes a criminal
offense and to fix the punishment for such conduct.” State v. Olson, 325 N.W.2d 13, 17-18
(Minn. 1982). In 1978, the legislature established a sentencin g guidelines commission to
promulgate sentencing guidelines for district courts and prescribed the methods by which
the sentencing guidelines are promulgated. 1978 Minn. Laws ch. 723, art. 1, § 9 at 765-67
(codified as amended at Minn. Stat. § 244.09 (2016)). Although the sentencing guidelines
are advisory, a district court is required to “follow the procedures of the guidelines when it
pronounces sentence in a proceeding to which the guidelines apply by operation of statute.”
Minn. Stat. § 244.09, subd. 5(2); see also State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014)
(“A sentencing court must pronounce a sentence within the appli cable range unless there
exist identifiable, substantial, and compelling circumstances t hat distinguish a case and
overcome the presumption in favor of the guidelines sentence.” (quotation omitted)).1
Among its duties, the sentencing guidelines commission determines how an
offender’s prior record will be used in determining his crimina l-history points, which are
used for sentencing. State v. Zeimet, 696 N.W.2d 791, 796 (Minn. 2005). Criminal history
points include points for a defendant’s previous felony convict ions, custody status, prior
misdemeanor and gross misdemeanor convictions, and prior juvenile adjudications. Minn.
Sent. Guidelines 2.B (Supp. 2017). Any modification in how cri minal-history points are

1 Thurstin did not argue that identifiable, substantial, and compelling circumstances existed
to justify a downward durational departure.

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determined must be submitted by the commission to the legislature. Minn. Stat. § 244.09,
subd. 11. The change then becomes effective August 1 of the year submitted unless the
legislature provides otherwise. Id.
Under the sentencing guidelines, defendants receive criminal-history points based
on their previous felony convictions as well as their custody s tatus. Minn. Sent.
Guidelines 2.B.1, .2. The sentencing guidelines include a sex-offender grid that establishes
a defendant’s presumptive sentence for a variety of sexual offe nses based on the severity
of the offense and the defendant ’s criminal history score. Min n. Sent. Guidelines 4.B
(Supp. 2017). The more serious a defendant’s crime, and the hi gher his criminal history
score, the greater his presumptive sentence. Id.
The sentencing guidelines assign higher criminal history scores when a defendant’s
current conviction and his prior conviction both fall on the sex-offender grid. Minn. Sent.
Guidelines 2.B.1.b, 2.B.2.b. Based on the guidelines, Thurstin received three felony points
instead of two for his previous CSC conviction because both his current conviction and his
previous conviction are on the sex-offender grid. Minn. Sent. Guidelines 2.B.1.b.
Similarly, Thurstin received two custody-status points instead of one because both his
current conviction and his previous conviction, which qualifies for custody-status points,
are on the sex-offender grid. Minn. Sent. Guidelines 2.B.2.b. Thurstin argues that this
increase in both his felony points and his custody-status points unfairly double counted the
fact that both his current conviction and his prior conviction are on the sex-offender grid,
and that only one enhancement should be allowed, which would reduce his criminal-history
score to four.

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Thurstin concedes that the district court properly applied the guidelines as they are
written, but he argues that the method that the sentencing guid elines prescribe for
calculating his criminal-history score is unjust. Thurstin argues that we should extend the
holdings of several cases stating that once conduct has been fa ctored into an individual’s
guideline sentence, that same conduct cannot then be used as gr ounds to depart from the
guidelines. See e.g. , State v. Meyers , 869 N.W.2d 893, 897 (Minn. 2015) (“[F]acts
considered by the Legislature in determining the severity of th e offense being sentenced
cannot serve as a basis for departure.”); State v. Thompson, 720 N.W.2d 820, 830 (Minn.
2006) (holding that conduct underlying one conviction cannot be used to support an upward
departure in another conviction); State v. Erickson , 313 N.W.2d 16, 18 (Minn. 1981)
(holding that prior criminal offenses could not be a grounds fo r departure because they
were already factored into criminal-history points under the guidelines). Thurstin asks this
court to extend the reasoning of t hese cases to hold that condu ct cannot be counted twice
to calculate an individual’s pre sumptive sentence. “[T]he task of extending existing law
falls to the supreme court or the legislature, but it does not fall to this court.”
Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn.
Dec. 18, 1987).2
Thurstin does not cite to any caselaw supporting his position t hat the guidelines
cannot factor conduct into an indi vidual’s criminal-history sco re more than once in
calculating a presumptive sentence, and we decline to extend the existing law. Thurstin’s

2 We note that Thurstin does not challenge the constitutionality of the provisions of the
sentencing guidelines at issue in this appeal.

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argument that his sentence is unjust amounts to a policy argume nt. “The function of the
court of appeals is limited to identifying errors and then corr ecting them.”
Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). Because the district court correctly
applied the guidelines, there is no error for this court to correct.
Thurstin also does not cite to a ny caselaw supporting his posit ion that Minn.
Stat. § 244.11, subd. 2(b), allows this court to overturn a pre sumptive guideline sentence
without any substantial and comp elling mitigating circumstances justifying a downward
departure from the guidelines. B ut even if we have the authori ty to overturn Thurstin’s
presumptive sentence in the absence of circumstances justifying a downward departure, we
conclude that his sentence is not “inconsistent with statutory requirements, unreasonable,
inappropriate, excessive, or unjustifiably disparate,” and that his sentence is “warranted by
the findings of fact issued by the district court.” Minn. Stat . § 244.11, subd. 2(b).
Accordingly, the district court did not err in sentencing Thurstin.
Affirmed.