A19-0270

This opinion will be unpublished and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
A19-0265
A19-0270

State of Minnesota,
Appellant (A19-0270),
Respondent (A19-0265),

vs.

Eric Christopher Thorsen,
Appellant (A19-0265),
Respondent (A19-0270).

Filed February 10, 2020
Reversed and remanded
Larkin, Judge

Ramsey County District Court
File No. 62-CR-18-2469

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

John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for appellant/respondent State of Minnesota)

Cathryn Middlebrook, Chief Appellate Public Defend er, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for respondent/appellant Eric Thorsen)

Considered and decided by Slieter, Presiding Judge; Larkin, Judge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
This consolidated appeal follows appellant’s conviction and sentence for felony
identity theft. The issues concern the impact of appellant’s Illinois conviction for identity
theft and related incarceration on his Minnesota sentence. In appeal A19-0270, the state
challenges the district court’s awar d of jail credit. In appeal A19 -0265, appellant
challenges the district court’s calculation of his criminal-history score. Because the district
court err oneously awarded appellant 279 days of custody credit for time served on his
Illinois conviction, and because th e record does not satisfy us that t he district court
correctly assigned appellant a felony point for appellant’s Illinois conviction, we reverse
and remand for resentencing.
FACTS
In April 2018, the State of Minnesota charged appellant Eric Christopher Thorsen
with two counts of felony identity theft under Minn. Stat. § 609.527, subds. 2-3(5) (2016).
The state alleged that Thorsen possessed “cloned” transaction cards and that he used those
cards to make purchases with funds from accounts without the account holders’ knowledge.
The state alleged that between August 9 and 30, 2016, Thorsen possessed, in Minnesota,
the identities of at least 34 people. The state further alleged that between September 22,
2016 and February 14, 2017, Thorsen possessed, in Minnesota, the identities of at least 16
additional people.
Thorsen pleaded guilty to both counts pursuant to a plea agreement in which the
state agreed to dismiss identity -theft charges in Winona and Hennepin Counties and to

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recommend a prison sentence between 63 and 82 months. In exchange, Thorsen agreed to
pay restitution to all of the victims. The district court accepted Thorsen’s plea, adjudicated
him guilty of the two felony identity-theft counts, and ordered a presentence investigation
(PSI).
The PSI recommended 263 days of custody credit. Thorsen requested additional
credit, arguing that he was arrested in Illinois on March 28, 2017, for “possession of the
IDs and credit cards previously used in connection” with one of the identity-theft counts in
this case, that the State of Illinois charged him with identity theft, that he pleaded guilty to
that offense, and that he was in custody in Illinois from March 2017 to Janua ry 2018.
Thorsen further argued that because “[t]he Illinois case and all time spent in custody there,
is part and parcel of [this] case,” he should receive credit for his incarceration in Illinois.
The PSI investigator filed an addendum to the PSI, wh ich stated that Thorsen was
not entitled to custody credit for his Illinois incarceration because he was incarcerated
based on the Illinois offense. But the PSI addendum noted that Thorsen was entitled to
some additional jail credit, beginning on the day that he was released from custody in
Illinois.
At sentencing, Thorsen requested 279 additional days of Illinois custody credit,
arguing that the conduct underlying this case and the Illinois conviction were “part of a
single behavioral incident.” Thorsen also argued that he should receive one-half of a felony
point in the calculation of his criminal -history score for his 2017 Illi nois identity -theft
conviction because there was only one victim in that case.

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The district court granted Thorsen’s request for 279 additional days of custody
credit, reasoning that “the 279 days were served on a matter that was not unrelated to [this]
matter” and that the Illinois conduct and the underlying conduct in this case were part of a
“single behavioral incident.” The district court imposed one felony point for Thorsen’s
2017 Illinois conviction when calculating his criminal-history score, entered judgments of
conviction for both felony identity-theft counts, and sentenced Thorsen to serve concurrent
78-month prison terms.
The state and Thorsen appealed. The state challenges the district court’s award of
Illinois custody credit. Thorsen challenges the district court’s assignment of a felony point
for his 2017 Illinois conviction. This court consolidated the appeals.1
D E C I S I O N
I.

We begin with the state’s appeal. The state contends that “[u]nder well-established
Minnesota precedent, the district court erred in awarding 279 days of custody credit for
time [Thorsen] spent incarcerated in Illinois on an Illinois conviction.”
A criminal defendant is entitled to cre dit for time spent in custody “in connection
with the offense or behavioral incident being sentenced.” Minn. R. Crim. P. 27.03, subd.
4(B). The defendant has the burden of establishing that he is entitled to such credit. State

1 Because the parties did not request oral argument, the arguments are limited to their briefs.
See Minn. R. Civ. App. P. 133.03 (providing that “[i]f a party desires oral argument, a
request must be included in the statement of the case”); see also Minn. R. Civ. App. P.
134.01(a) (stating that oral argument will be allowed unless “no request for oral ar gument
has been made by either party in the statement of the case required by Rule 133.03”).

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v. Clarkin, 817 N.W.2d 678 , 687 (Minn. 2012). Custody credit “must be deducted from
the sentence and term of imprisonment.” Minn. R. Crim. P. 27.03, subd. 4(B). The
decision to award custody credit is not discretionary with the district court. State v. Roy,
928 N.W.2d 341, 344 (Minn. 2019). “The district court’s decision to award custody credit
is a mixed question of fact and law; the court must determine the circumstances of the
custody the defendant seeks credit for, and then apply the rules to those circumstances.”
Id. (quotation omitted). Appellate courts review the factual findings underlying custody-
credit determinations for clear error, but review questions of law, such as the interpretation
of the rules of criminal procedure, de novo. Id.
In State v. Willis, the supreme court held:
A defendant charged with a crime in Minnesota and
held in custody in another state at request of Minnesota
authorities is not entitled to credit against a Minnesota sentence
for time in custody in the other state unless the Minnesota
charge was the sole reason for the detention by the other state.

376 N.W.2d 427, 427 (Minn. 1985) (emphasis added). The supreme court recently
reaffirmed the Willis rule in State v. Roy, holding that “a defendant can only receive credit
for time spent in th e custody of another jurisdiction if the time was served solely in
connection with the Minnesota offense.” 928 N.W.2d at 345.
The state argues that because the “district court did not find that . . . Thorsen had
met his burden of establishing that he was held in Illinois custody solely in connection with
a Minnesota offense,” there was no basis to award Thorsen 279 days of custody credit for
that time. The state relies on Willis as support. 376 N.W.2d at 428-29.

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Thorsen acknowledges the Willis rule, but argues that “when two jurisdictions both
favor concurrent sentencing, a defendant’s multi -jurisdictional sentences should be
concurrent, and therefore a defendant should necessarily receive credit against his
Minnesota sentence for time spent in custody of the foreign jurisdiction.” Thorsen argues
that “[u]nder this reasoning, [he] should be credited for the time he spent in custody in
Illinois for his directly related and concurrent identity-theft sentence.”
Thorsen’s argument is untenable i n light of Roy. In that case, the supreme court
explained,
When determining whether to award custody credit, we
distinguish between intrajurisdictional custody (custody within
Minnesota) and interjurisdictional custody (custody outside of
Minnesota). In evaluating credit for intrajurisdictional
custody, we seek to avoid four potential concerns: de facto
conversion of a concurrent sentence into a consecutive
sentence; indigent persons serving effectively longer sentences
as a result of their inability to post bail; irrelevant factors
affecting the length of incarceration; and manipulation of
charging dates by the prosecutor so as to increase the length of
incarceration.

We apply a different test for determining
interjurisdictional custody credit. For a d efendant to receive
credit on a Minnesota sentence for time spent in another
jurisdiction’s custody, the defendant’s Minnesota offense must
be the sole reason for the custody.

928 N.W.2d at 345 (emphasis added) (quotations omitted).
The defendant in Roy argued that the supreme court has “awarded credit against a
Minnesota sentence for time that a defendant spent in custody in connection with another
jurisdiction’s charges if both jurisdictions ‘prefer concurrent sentencing and neither says a
sentence is to be run consecutive .’” Id. at 346. The defendant in Roy relied on State v.

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Wakefield, 263 N.W.2d 76, 77 (Minn. 1978), as Thorsen does here. Id. The supreme court
in Roy said that it “[did] not find Wakefield persuasive because Wakefield is not a custody
credit case” and instead “involved the related, but separate issue, of concurrent versus
consecutive sentencing.” Id. Thorsen’s reliance on Wakefield is therefore unavailing.
Thorsen’s reliance on State v. Jennings is similarly unavail ing. 448 N.W.2d 374,
375 (Minn. App. 1989). In Jennings, this court addressed whether “a defendant serving a
felony sentence imposed by another state for an offense committed there [has] the right to
execution of a sentence previously imposed by a Minnes ota court.” Id. at 374. Jennings
did not discuss the issue here, that is, whether a defendant should receive credit against his
Minnesota sentence for time spent in custody in a foreign jurisdiction. See id.
In a pro se supplemental brief, Thorsen argues that the district court did not err in
awarding custody credit because his Illinois incarceration “ was ‘in connection’ with the
Minnesota offenses” and “part of a single behavioral incident.” That argument is
unavailing because it is inconsistent with the relevant test . See Roy, 928 N.W.2d at 345
(reaffirming the “solely in connection” standard).
In sum, Roy is dispositive. “Under the test for determining interjurisdictional
custody credit, a defendant can only receive credit for time spent in the custody of another
jurisdiction if the time was served solely in connection with the Minnesota offense.” Id.
(emphasis added). It is undisputed that Thorsen ’s Illinois incarceration was based on his
Illinois identity-theft charges and conviction , and not solely on his Minnesota offenses .
Because Thorsen was not incarcerated in Illinois solely in connection with his Minnesota
offenses, the district court erred by awarding him 279 days of custody credit for that time.

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II.
We turn to Thorsen’s appeal. Thorsen contends that the district court “abused its
discretion when it assigned one felony point for [his] Illinois identity -theft conviction
because the state failed to prove it was the equivalent of a severity level three offense.”
Before we address Thorsen’s contention, we consider the state’s response that “Thorsen’s
criminal-history score is irrelevant because, as part of his plea agreement, he agreed to a
sentencing range of 63 to 82 months, was sentenced w ithin the range, and has not sought
to withdraw his plea.”
“The presumptive sentence for a felony conviction is found in the appropriate cell
on the applicable [sentencing guidelines] Grid located at the intersection of the criminal
history score (horiz ontal axis) and the severity level (vertical axis).” Minn. Sent.
Guidelines 2.C.1 (2016). “The sentences provided in the Grids are presumed to be
appropriate for the crimes to which they apply.” Minn. Sent. Guidelines 2.D.1 (2016).
“The court must pron ounce a sentence of the applicable disposition and within the
applicable range unless there exist identifiable, substantial, and compelling circumstances
to support a departure.” Id. “[N]egotiated plea agreements that include a sentencing
departure are justified under the guidelines in cases where substantial and compelling
circumstances exist,” but “plea agreements cannot form the sole basis of a sentencing
departure.” State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002).
Sentencing pursuant to the sentencing g uidelines “is a procedure based on state
public policy to maintain uniformity, proportionality, rationality, and predictability in
sentencing.” Min n. Stat. § 244.09, subd. 5 (201 6). It is the “responsibility of probation

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officers and district courts to ensure the accuracy of every defendant’s criminal history
score” to achieve the state’s policy of uniform sentencing under the sentencing guidelines.
State v. Maurstad , 733 N.W.2d 141, 151 (Minn. 2007). “[S]entences must be based on
correct criminal history scores, as these scores are the mechanism district courts use to
ensure that defendants with similar criminal histories receive approximately equal
sanctions for the same offen se.” Id. at 147. A defendant can neither waive nor forfeit
appellate review of his criminal -history score “because a sentence based on an incorrect
criminal history score is an illegal sentence.” Id.; see also Minn. R. Crim. P. 27.03, subd.
9 (“The court may at any time correct a sentence not authorized by law.”).
“[A] defendant’s right to appeal an illegal sentence cannot be waived.” State v.
Maley, 714 N.W.2d 708, 714 (Minn. App. 2006). “This absolute right to appeal an illegal
sentence further indicates that the state’s burden to properly substantiate prior convictions
does not change based on the perception —erroneous or not —that a defendant will not
challenge his criminal-history score.” Id.
In sum , t he district court was obligated to sentence Thorsen pursuant to the
sentencing guidelines, using his correct criminal -history score. Thorsen’s agreement to
plead guilty in exchange for the state’s recommendation of a sentence between 63 and 82
months did not relieve the district court of that obligation. Nor did it relieve the state of its
burden to properly substantiate Thorsen’s prior Illinois convic tion. See id. Thus, the
correct calculation of Thorsen’s criminal-history score was a necessary part of the district
court’s sentencing decision , and Thorsen’s ch allenge to his criminal -history score is
properly before us in this appeal.

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When computing an offender’s criminal-history score,
the offender is assigned a particular weight for every felony
conviction for which a felony sentence was stayed or imposed
before the current sentencing or for which a stay of imposition
of sentence was given for a felony level offense, no matter what
period of probation is pronounced, before the cu rrent
sentencing.

Minn. Sent. Guidelines cmt. 2.B.101 (2016).
Convictions from other jurisdictions must be considered in calculating an offender’s
criminal-history score. Minn. Sent. Guidelines 2.B.5.a (2016); State v. Reece, 625 N.W.2d
822, 824 (Minn. 2001). A non-Minnesota conviction “ may be counted as a felony [in a
criminal-history score] only if it would both be defined as a felony in Minnesota , and the
offender received a sentence that in Minnesota w ould be a felony-level sentence.” Minn.
Sent. Guidelines 2.B.5.b (2016). “[T]he sentencing court should compare the definition of
the foreign offense with the definitions of comparable Minnesota offenses but also may
consider the nature of the foreign offense and the sentence received by the offender for the
offense.” Hill v. State , 483 N.W.2d 57, 58 (Minn. 1992). The sentencing court is not
limited to looking at the definition of an out -of-state conviction and determining if
Minnesota has an offense with the same basic defini tion because it would “be unfair to
those defendants receiving criminal history points for prior Minnesota convictions if their
counterparts with prior foreign or out-of-state convictions of similar offenses for the same
basic conduct did not receive criminal history points for those offenses.” Id. at 61.
The state bears the burden to “show that a prior conviction qualifies for inclusion
within the criminal -history score” and that the criminal -history score is calculated

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correctly. Williams v. State , 910 N.W.2d 736, 740 (Minn. 2018). Yet, the state did not
present any evidence regarding Thorsen’s Illinois conviction. Nor did the state address
whether or how it should be included in Thorsen’s c riminal-history score. Thorsen,
however, argued in district court that his Illinois conviction should be counted as a half
point, and not a full point, because there was only one victim. Thorsen submitted exhibits
in support of his position , including his Illinois warrant of commitment, which indicated
that he was convicted of one count of identity theft against one victim.
The district court assigned Thorsen a full felony point for his 2017 Illinois
conviction, but it did not describe its reason for doing so. Instead, the district court simply
stated, “There was a question about whether . . . the latest 2017 Illinois conviction should
be a point, or half a point, I conclude that’s a point.” This court reviews the determination
of Thorsen’s criminal-history score for an abuse of discretion. See State v. Stillday, 646
N.W.2d 557, 561 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002).
Thorsen was convicted of identity theft under 720 Ill. Comp. Stat. 5/16 -30(a)(4)
(2016), which provides that when a person commits identity theft when the person
knowingly
uses, obtains, records, possesses, sells, transfers,
purchases, or manufactures any personal identification
information or personal identification document of another
knowing that such personal identification information or
personal identification documen ts were stolen or produced
without lawful authority[.]

Under the analogous Minnesota identity -theft statute, Minn. Stat. § 609.527, subd.
2 (2016), “[a] person who transfers, possesses, or uses an identity that is not the person’s

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own, with the intent to commit, aid, or abet any unlawful activity is guilty of identity theft
and may be punished as provided in subdivision 3.”
Subdivision 3 of Minnesota’s identity -theft statute , in turn, provides varying
penalties depending on whether certain enhancement requirements are satisfied. Minn.
Stat. § 609.527, subd. 3 (2016). “[I]f the offense involves a single direct victim and the
total, combined loss to the direct victim and any indirect victims is $250 or less,” the person
may be sentenced “to imprisonment for not more than 90 days.” Id., subd. 3(1); Minn.
Stat. § 609.52, subd. 3(5) (2016). “[I]f the offense involves a single direct victim and the
total, combined loss to the direct victim and any indirect victims is more than $250 but not
more than $500,” the person may be sentenced to “imprisonment for not more than one
year.” Minn. Stat. § 609.527, subd. 3(2); Minn. Stat. § 609.52, subd. 3(4) (2016).
“[I]f the offense invo lves two or three direct victims or the total, combined loss to
the direct and indirect victims is more than $500 but not more than $2,500,” the person
may be sentenced to “imprisonment for not more than five years.” Minn. Stat. § 609.527,
subd. 3(3); Minn. Stat. § 609.52, subd. 3(3) (2016). “[I]f the offense involves more than
three but not more than seven direct victims, or if the total combined loss to the direct and
indirect victims is more than $2,500,” the person may be sentenced to “imprisonment fo r
not more than ten years.” Minn. Stat. § 609.527, subd. 3(4); Minn. Stat. § 609.52, subd.
3(2) (2016). Lastly, “if the offense involves eight or more direct victims; or if the total,
combined loss to the direct and indirect victims is more than $35,000; or if the offense is
related to possession or distribution of pornographic work in violation of section 617.246

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or 617.247,” the person may be sentenced “to imprisonment for not more than 20 years.”
Minn. Stat. § 609.527, subd. 3(5); Minn. Stat. § 609.52, subd. 3(1) (2016).
Minn. Stat. § 609.02 (2016) defines criminal-offense levels based on the sentences
that may be imposed. In Minnesota, a felony is defined as “a crime for which a sentence
of imprisonment for more than one year may be imposed.” Minn. Stat. § 609.02, subd. 2.
Thus, an identity-theft offense is not defined as a felony in Minnesota unless a sentence of
imprisonment for more than one year may be imposed. Such a sentence may be imposed
only if there are two or more direct victims, if the combined loss to direct and indirect
victims is more than $500, or if “the offense is related to possession or distribution of
pornographic work in violation of section 617.246 or 617.247.” See Minn. Stat. § 609.527,
subd. 3(3)-(5); Minn. Stat. § 609.52, subd. 3(1)-(3).
Thorsen argues that because his “Illinois offense involved one victim, but he
received a felony -level sentence of two years, it appears his Illinois offense is most
comparable to [Minn. Stat. § 609.527, subd. 3(3)] and worth half a felony point against his
criminal history score.” But an out-of-state conviction may be counted as a felony in a
criminal-history score only if the conviction would be defined as a felony in Minnesota
and the offender received a sentence that would be a felony -level sentence in Minnesota.
Minn. Sent. Guidelines 2.B.5.b (2016) (emphasis added). Both parts of the test must be
satisfied. Id.
Although the record indicates that Thorsen’s Illinois conviction involved only one
victim, the re cord does not indicate whether the combined loss to that victim was more
than $500. Again, a single-victim identity-theft offense is not a felony in Minnesota unless

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the loss to the victim was more than $500. See Minn. Stat. § 609.527, subd. 3(3). Thus,
the current record does not establish that Thorsen’s Illinois conviction would be defined as
a felony in Minnesota.
Indeed, the state does not argue that the district court correctly counted Thorsen’s
Illinois conviction in his criminal-history score. Instead, it argues, “There is no indication
that the 63-to-82 month range was contingent on a determination of [Thorsen’s] criminal-
history score, or that [the district court’s] decision on what sentence to impose within that
range had to take into ac count [Thorsen’s] criminal-history score.” As explained above,
that position is untenable. However, the state also suggests that “[t]his court could remand
for a determination of [Thorsen’s ] criminal-history score and for [the district court] to then
decide whether [it] still considers 78 months the appropriate sentence within the range.”
On this record, we are not satisfied that the district court correctly determined
Thorsen’s criminal-history score. We therefore reverse Thorsen’s sentence and remand for
the district court to recalculate his criminal -history score, as well as his custody credit,
consistent with this opinion and to sentence him in accordance.
Reversed and remanded.