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This opinion will be unpublished and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
A19-0410

State of Minnesota,
Respondent,

vs.

Jose Acension Lopez,
Appellant.

Filed January 13, 2020
Reversed and remanded
Rodenberg, Judge

Renville County District Court
File No. 65-CR-18-176

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

David Torgelson, Renville County Attorney, Olivia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Rodenberg,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this direct appeal after he was found guilty of domestic assault and domestic
assault by strangulation, appellant Jose Lopez argues that his sentence must be reversed

2
and remanded for resentencing because the distri ct court erred in calculating his criminal
history score. We reverse and remand.
FACTS
On June 5, 2018, the stat e charged appellant in a three-count complaint for his
conduct directed against J.A. on June 3, 2018. The complaint charged appellant with one
count of felony domestic assault, one count of threats of violence, 1 and one count of
domestic assault by strangulation.
Appellant waived his right to a jury trial, and the case was tried to the court. At
trial, J.A. testified that, on the evening of Ju ne 3, 2018, she and appellant argued. J.A.
testified that appellant strangled her, put a pillow over her face, hit her, and dragged her by
her hair. J.A. testified that she was three months pregnant at the time.
Appellant testified on his ow n behalf and stated that he and J.A. often engaged in
verbal arguments. He testified that, on June 3, 2018, J.A. became upset that appellant had
made contact with an ex-girlfriend. Appellant denied strangling J.A., putting a pillow over
her face, hitting her, or pulling her hair. Instead, appellant testified that he left their shared
residence until J.A. calmed down, and returned only to go to bed.
The district court found appellant guilty of domestic assault and domestic assault by
strangulation. It found appellant not guilty of the charge of threats of violence.

1 The complaint, the district court’s written findings after the trial, and the warrant of
commitment each describe this offense as “Terroristic Threats—Reckless Disregard Risk.”
The legislature amended section 609.713 in 2015 to identify th is offense as “Threats of
Violence.” Minn. Stat. § 609.713 (Supp. 2015); 2015 Minn. Laws ch. 21, art. 1, § 109, at
234. This alteration of the offense designation does not affect the issue in this appeal.

3
Sentencing worksheets were prepared an d filed with the district court before
appellant’s sentencing hearing. The worksh eet concerning the do mestic-assault charge
included appellant’s two prior felony criminal history points and one custody-status point,
for a total of three criminal history points. The worksheet concerning the domestic-assault-
by-strangulation charge assigne d appellant one additional poi nt for the domestic-assault
charge that the district court had found the state to have proved, for a total of four criminal
history points.
The district court convicted appellant of both proved charges, but sentenced
appellant only on the domestic-assault-by-st rangulation conviction, using a criminal
history score of four.
This appeal followed.
D E C I S I O N
Appellant argues on appeal that the distri ct court erred in calculating his criminal
history score. The state declined to file a responsive brief. We must therefore resolve the
appeal by a careful review of the record as constituted, but without the benefit of the state’s
input. Minn. R. Civ. App. P. 142.03.
The supreme court has held that “a sentence based on an incorrect criminal history
score is an illegal sentence . . . [and] a defe ndant may not waive revi ew of his criminal
history score calculation.” State v. Maurstad , 733 N.W.2d 141, 147 (Minn. 2007); see
State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008), review denied (Minn. July 15,
2008) (providing that an unauthorized sent ence includes one that is calculated on an
incorrect criminal history score).

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A person being sentenced un der the Minnesota Sentencing Guidelines is assigned
one criminal history point “to . . . each felony conviction, provided that a felony sentence
was stayed or imposed before the current se ntencing.” Minn. Sent. Guidelines 2.B.1
(2016); see Minn. Sent. Guidelines cmt. 2.B.101 (2016) (explaining the “basic rule . . . that
the offender is assigned a particular weight for every felony conviction for which a felony
sentence was stayed or imposed before the current sentencing”). Pursuant to State v.
Hernandez, a district court sentencing a defendant on more than one offense on the same
day may count each prior conviction in the defendant’s criminal history score when
sentencing subsequent offenses. 311 N. W.2d 478, 481 (Minn. 1981); Minn. Sent.
Guidelines 2.B.1.e (2016).
In this case, the district court convicte d appellant of both of the domestic-assault-
related offenses, but only sentenced appe llant on the domestic-assault-by-strangulation
conviction. Domestic assault by strangulation is a severity-level-four offense. Minn. Sent.
Guidelines 5.A. (2016). The district c ourt did not sentence appellant on the domestic-
assault conviction. Therefore, appellant’s pr oper criminal history score relative to the
domestic-assault-by-strangulation conviction was three. See Minn. Sent. Guidelines 2.B.1.
But the district court improperly included an additional criminal history point for the
domestic-assault conviction on which appellant was not sentenced. Based on this
miscalculation, the district court erroneous ly sentenced appellant using the incorrect
criminal history score.

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Because the district court sentenced appella nt using a criminal history score of four
and not three, we reverse and remand to the district court to resentence appellant using the
correct criminal history score.2
Reversed and remanded.

2 Appellant also argues that “even if [appella nt] had received sentences on both offenses,
the district court still erred by including the domestic-assault offense in [appellant]’s
criminal history score because it would not have been sentenced first in time,” citing Minn.
Sent. Guidelines 2.B.1.e. Because the dist rict court only senten ced appellant on the
domestic-assault-by-strangulation conviction, we do not address this issue. Our holding
here is limited to correcting the erroneous calculation of appellant’s criminal history score.
How the district court sentences appellant on remand is for the district court to decide,
within the parameters of the law.