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This opinion will be unpublished and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
A18-2124

State of Minnesota,
Respondent,

vs.

Ryan Boyd Banwell,
Appellant.

Filed August 12, 2019
Reversed and remanded
Cleary, Chief Judge

Stearns County District Court
File Nos. 73-CR-18-1007 and 73-CR-18-796

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

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, As sistant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Gina Schu lz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Hooten, 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 Ryan Boyd Banwell appe als from his convictions for st alking and
violation of a harassment restra ining order, arguing that the d istrict court erred in the
calculation of his criminal-history score. We reverse appellant’s sentences and remand.

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FACTS
In June 2018, appellant pleaded guilty to one count of stalking , Minn. Stat.
§ 609.749, subd. 4(b) (2016), and one count of violating a hara ssment restraining order
(HRO), Minn. Stat. § 609.748, subd. 6(a) (2016). Both the stalking offense and the HRO
violation were charged as felonies because appellant had two or more “qualified domestic
violence-related offense convictions” within the ten years prec eding these new offenses.
Minn. Stat. § 609.748, subd. 6(d)(1), .749, subd. 4(b) (2016). At the plea hearing, in regard
to both current offenses, appe llant admitted to having previous ly been convicted of two
violations of domestic abuse no-contact orders (DANCOs) on November 3, 2017.
Sentencing guidelines worksheets were prepared and filed with the district court in
anticipation of sentencing. The sentencing worksheet for the s talking offense indicated
that this crime was enhanced to a felony due to one of the Nove mber 2017 DANCO
violation convictions admitted by appellant as part of his plea colloquy, and to a 2009
aggravated-assault conviction from Clinton County, Michigan—an offense to which
appellant had not explicitly adm itted. The sentencing workshee t for the HRO violation
offense indicated that this crime was enhanced to a felony due to one of the November
2017 DANCO violations, and to a 2018 felony stalking conviction that appellant had also
not admitted to in these proceedi ngs. Also included in the cal culation of appellant’s
criminal-history score were two 2003 California felony convicti ons for marijuana
possession, and a 2006 Michigan misdemeanor conviction for domestic violence.

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The district court, relying on the sentencing worksheets, sentenced appellant on the
stalking offense to 41 months in prison, and on the HRO violati on to a concurrent 30
months in prison. This appeal follows.
D E C I S I O N
Appellant argues that the distric t court erred by assigning two felony criminal-
history score points and a misdemeanor unit for three out-of-state convictions because the
state did not meet its burden of demonstrating that these offen ses were properly included
in the calculation of his scores. He also argues that it was e rror for the court to have
included a misdemeanor unit for the 2017 DANCO violation conviction that should have
been used instead to enhance the current offenses to felonies.
A defendant may challenge a district court’s calculation of his criminal-history score
for the first time on appeal. See State v. Maurstad , 733 N.W.2d 141, 148 (Minn. 2007)
(noting that “a defendant cannot forfeit review of [the defenda nt’s] criminal history score
calculation”). This court reviews a district court’s criminal history determination for an
abuse of discretion. State v. Stillday , 646 N.W.2d 557, 561 (Minn. App. 2002), review
denied (Minn. Aug. 20, 2002). “A district court abuses its discretio n when its decision is
based on an erroneous view of the law or is against logic and the facts in the record.” State
v. Guzman, 892 N.W.2d 801, 810 (Minn. 2017).
Appellant argues, and the state c oncedes, that his sentences mu st be reversed and
that the matter be remanded for resentencing. Notwithstanding such agreement, however,
this court has an obligation to “decide cases in accordance with [the] law”; a responsibility

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that is not “diluted” by the concessions of the parties. State v. Hannuksela, 452 N.W.2d
668, 673 n.7 (Minn. 1990).
As a rule, “[t]he state has the burden of proving by a preponderance of the evidence
‘the facts necessary to justify consideration of out-of-state c onvictions in determining a
defendant’s criminal history score.’” State v. Outlaw, 748 N.W.2d 349, 355 (Minn. App.
2008) (quoting State v. Griffin, 336 N.W.2d 519, 525 (Minn. 1983)), review denied (Minn.
July 15, 2008). When a defendant challenges the inclusion of out-of-state convictions for
the first time on appeal and the record is insufficient to reso lve the issue, we reverse the
sentence and permit the state on remand to develop a record fro m which the district court
may determine whether the state has met this burden. Id. at 356.
Here, the district court include d in appellant’s criminal-histo r y s c o r e t w o f e l o n y
convictions from California for marijuana possession in 2003, a nd a misdemeanor
domestic-violence conviction from Michigan that occurred in 2006. Appellant argues that
the district court abused its discretion in doing so because the state did not meet its burden
of proving that any of these offenses were properly included in the calculations. The state
concedes this point, and we agree that appellant’s sentence must be reversed and remanded
for resentencing. Id. However, because appellant did not object to the inclusion of these
out-of-state convictions at the tim e of sentencing, respondent shall on remand be
“permitted to further develop the sentencing record so that the district court can
appropriately make its determina tion” as to whether these offen ses may properly be
included in recalculating appellant’s criminal-history score. Id.

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Because appellant is entitled to r esentencing, we need not addr ess whether he is
entitled to equivalent relief on his additional claim of error.
Reversed and remanded.