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This opinion will be unpublished and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
A18-0895

State of Minnesota,
Respondent,

vs.

Michael Allen Chapel,
Appellant.

Filed February 11, 2019
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Kanabec County District Court
File No. 33-CR-15-45

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

Barbara A. McFadden, Kanabec County Attorney, Mora, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Roy G. Sp urbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Connolly, Ju dge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges the district court’s revocation of his pr obation, arguing that
the evidence did not show that the need for confinement outweighed the policies favoring

2
probation. Appellant also argues that his sentence was based o n an incorrect criminal-
history score. We affirm in part, reverse in part, and remand for resentencing.
FACTS
This case stems from a series of controlled buys of methampheta mine from
appellant Michael Allen Chapel through law enforcement and a co nfidential informant
during late January and early February 2015. The state charged appellant with first-degree
sale of a controlled substance, third-degree possession of a co ntrolled substance, fleeing
police in a motor vehicle, and possession of drug paraphernalia.
Pursuant to a plea agreement, a ppellant pleaded guilty to second-degree possession
of methamphetamine, and the state agreed to dismiss the additional counts. In May 2016,
the district court accepted the plea agreement and sentenced ap pellant to a top-of-the-box
sentence of 129 months 1 with the commissioner of corrections. The district court stay ed
execution of the sentence for 25 years and placed appellant on probation, a downward
dispositional departure.
As reasons for departure, the district court relied on appellan t’s successful,
voluntary completion of the long-t erm treatment program at Minn esota Teen Challenge,
the fact that Teen Challenge hired him to work in their facilit y, he had long-term housing

1 The presentence investigation allocated seven criminal-history points to appellant based
on his eight prior felony convictions. The 2014 Sentencing Gui delines listed second-
degree possession as a level-eight offense, and with appellant’ s criminal-history score of
seven, the presumptive sentence was a prison commitment of 108 months with a range of
92 to 129 months. Minn. Sent. Guidelines 4.A (2014).

3
there, and that he had remained drug-free for a year and a half . The district court stated
that appellant had earned one more chance to prove that he had turned his life around.
In June 2017, appellant’s proba tion officer filed a probation- violation report after
the state charged appellant with fifth-degree possession of met hamphetamine and third-
degree DWI. Appellant admitted to using methamphetamine but refused to take a chemical
test, and a police officer found methamphetamine in his car. The probation-violation report
listed failure to remain law abiding, failure to abstain from t he use and possession of all
non-prescribed substances, and failure to submit to chemical te sting per law enforcement
as the alleged violations. Appe llant pleaded guilty to fifth-d egree possession of
methamphetamine and admitted to the events leading up to the probation violation.
At the disposition hearing, the district court revoked appella nt’s probation after
hearing arguments from the state, appellant’s probation officer, and appellant, and executed
his 129-month sentence. This appeal follows.2
D E C I S I O N
I. The district court did not abuse its discretion by revoking probation.
Appellant argues that the evidence did not support the distric t court’s determination
that the need for confinement ou tweighed the policies favoring probation. Appellant
contends that the evidence showed that he has a serious drug pr oblem and has not yet
succeeded in overcoming his addiction but not that he should be sent to prison. We are not
persuaded.

2 The state did not file a brief. If respondent fails to file a brief, the case shall be determined
on the merits. Minn. R. Civ. App. P. 142.03.

4
The district court has broad di scretion in determining whether sufficient evidence
exists to revoke probation, and this court will reverse only if there is a clear abuse of that
discretion. State v. Austin , 295 N.W.2d 246, 249-250 (M inn. 1980). When revoking
probation, a district court must (1) specify the conduct or con ditions that the probationer
violated; (2) find the violation was intentional or inexcusable; and (3) find that the need for
confinement outweighs the policies favoring probation. Id. at 250. The district court’s
decision to revoke probation “cannot be a reflexive reaction to an accumulation of technical
violations but requires a showin g that the offender’s behavior demonstrates that he . . .
cannot be counted on to avoid antisocial activity.” Id. at 251 (quotations omitted).
Appellant challenges only the third Austin factor. When analyzing this factor, a
district court must consider that, while the facts may permit r evocation, the purpose of
probation is rehabilitation, and revocation should be a last re sort. State v. Modtland, 695
N.W.2d 602, 606 (Minn. 2005). The need for confinement outweighs the policies favoring
probation if at least one of three subfactors are met:
(i) confinement is necessary to protect the public from
further criminal activity by the offender; or
(ii) the offender is in need of correctional treatment
which can most effectively be provided if he is confined; or
(iii) it would unduly depreciate the seriousness of the
violation if probation were not revoked.

Austin, 295 N.W.2d at 251.
In considering the first subfactor, the district court stated that, although the new
offense was not a sale offense, “it’s hard to avoid the thought of where [this] [was] leading
if [appellant] hadn’t gotten caught again.” The district court noted that appellant had an

5
additional pending case at the t ime, in which appellant had all egedly fled police officers
and hid in the attic of his home.
The record supports the distric t court’s determination that the need for confinement
outweighs the policies favoring probation. As the district court noted, appellant has been
on and off of felony probation for approximately 20 years and has continued to display the
same behaviors he exhibited when he was first placed on felony probation. Five out of
eight of his previous felonies have been controlled-substance convictions. Appellant failed
to comply with probation requirements and had poor attendance a t office visits with his
probation officer. Appellant had some relapses within the firs t few months of his
probation, and a rule 25 chemic al-use assessment produced a rec ommendation that
appellant enroll in outpatient treatment, which he did, but then he failed to attend treatment
sessions for the three weeks prior to his reported violation. Appellant’s probation officer
believes that appellant is not motivated to remain sober and be lieves he had been using
methamphetamine for at least a few months leading up to the pro bation violation.
Moreover, the probation officer s tated that, while this was the first violation filed for the
current offense, appellant has had a long history of probation violations on other cases,
amounting to at least 12 violatio ns. Finally, revocation is pe rmissible when, as here, the
district court “made a downward d ispositional departure for the sole reason of affording
appellant one last opportunity to succeed in treatment,” and appellant failed to comply with
probation requirements. State v. Moot , 398 N.W.2d 21, 24 (Minn. App. 1986), review
denied (Minn. Feb. 13, 1987).

6
The district court’s determina tion was not a reflexive reaction to continued technical
violations. The district court made specific findings in support of its determination that the
need for confinement outweighed the policies favoring probation . T h e d i s t r i c t c o u r t
acknowledged that it did not expect appellant to be perfect on probation. It also made clear
to appellant that it did not want to revoke probation. Because the record supports the
district court’s considered and thoughtful determination, we af firm the probation
revocation.
II. Appellant’s sentence is based on an incorrect criminal-history score.

Appellant argues that this case must be remanded for resentenci ng because the
district court miscalculated his criminal-history score by incl uding 1.5 criminal-history
points from two felony convictions that decayed. We agree.
Interpretation of the sentencin g guidelines is subject to de no vo review. State v.
Campbell, 814 N.W.2d 1, 6 (Minn. 2012). But we review the district court’s determination
of a defendant’s criminal-history score for an abuse of discret ion. State v. Drljic , 876
N.W.2d 350, 353 (Minn. App. 2016). This court may correct an illegal sentence at any
time. Minn. R. Crim. P. 27.03, subd. 9. An illegal sentence i ncludes one that is based on
an incorrect criminal-history score. State v. Outlaw , 748 N.W.2d 349, 356 (Minn. App.
2008), review denied (Minn. July 15, 2008).
Criminal-history points may not be assigned for prior felony co nvictions that have
decayed. Minn. Sent. Guidelines 2.B.1.c (2014). A prior felony has decayed “if a period
of fifteen years has elapsed since the date of discharge from o r expiration of the sentence
to the date of the current offense.” Id.

7
Appellant’s criminal-history sc ore included points for an unaut horized-use-of-a-
motor-vehicle conviction in 1996 and a fifth-degree-possession conviction in 1997. After
appellant violated probation for those convictions, the district court imposed 180-day and
189-day jail sanctions to be serve d concurrently. The district court then discharged
appellant from probation on July 19, 1999. The date of the current offense is late January
and early February 2015, which is more than 15 years from the d ate of discharge.
Therefore, these convictions were decayed and should not have b een included in the
calculation of the criminal-history score.
Appellant received one point for the unauthorized use of a motor vehicle conviction
and a half point for the fifth-degree possession conviction. Without these two convictions,
appellant had 5.5 points. If the sum of points results in a ha lf point, the point value is
rounded down to the nearest whole number, Minn. Sent. Guidelines 2.B.1.i, so appellant’s
correct criminal-history score is five. On the applicable drug -offender grid,3 a second-
degree drug offense is a level-eight offense, and with a criminal-history score of five points,
the presumptive sentence is 98 months, with a range between 84 and 117 months. Minn.

3 Appellant contends that the August 1, 2016 Sentencing Guidelines are applicable because
the district court sentenced appellant on May 19, 2016, and his case was still pending when
the 2016 Guidelines came into effect on May 23, 2016, pursuant to State v. Kirby , 899
N.W.2d 485, 490 (Minn. 2017). However, the presumptive sentenc e and range are the
same in both the 2014 and 2016 G uidelines for a second-degree c ontrolled substance
conviction and a criminal-history score of five. Minn. Sent. Guidelines 4.A (2014); Minn.
Sent. Guidelines 4.C (2016).

8
Sent. Guidelines 4.A. Because appellant’s sentence was calcula ted based on an incorrect
criminal-history score and falls outside this range, we reverse and remand for resentencing.
Affirmed in part, reversed in part, and remanded.