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This opinion will be unpublished and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
A19-0740

State of Minnesota,
Respondent,

vs.

Chad Allen Pryatel,
Appellant.

Filed March 9, 2020
Affirmed
Rodenberg, Judge

St. Louis County District Court
File No. 69DU-CR-18-2409

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

Mark S. Rubin, St. Louis County Attorney , Nathaniel T. Stumme, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and
Jesson, 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 convicted of third-degree drug possession,
appellant Chad Pryatel argues that the distri ct court improperly computed his criminal

2
history score and that the district court abused its discretion when it denied his motion for
a downward dispositional departure from the sentencing guidelines. Appellant also argues
in a pro se supplemental brief that his prio r fifth-degree controlled substance conviction
should be considered a gross misdemeanor for criminal-history-score purposes because of
the Drug Sentencing Reform Act of 2016 (DSRA). We affirm.
FACTS
On July 24, 2018, Hermantown police stopped a car driven by appellant, who was
then on felony probation for a 2017 Minnesota conviction for possession of
methamphetamine. When appellant was unable to provide a valid driver’s license or proof
of insurance, police decided to tow the car. While conducting an inventory search of the
car incident to the tow, police discovered 20 .1 grams of methamphetamine and a digital
scale that contained methamphetamine residue.
On July 25, 2018, the state charged appella nt with first-degree sale of a controlled
substance in violation of Minn. Stat. § 152.021, subd. 1(1) (2016); third-degree possession
of a controlled substance in violation of Minn. Stat. § 152.023, subd. 2(a)(1) (2016);
driving without a valid license in violation of Minn. Stat. § 171.02, subd. 1(a) (2016); and
driving without proof of insurance in violation of Minn. Stat. § 169.791, subd. 2(a) (2016).
Appellant pleaded guilty to third-degree possession of a controlled substance. The
other charges were dismissed pursuant to a plea agreement.
The district court ordered a presentenc e investigation report (PSI) and sentencing
worksheet, which indicated that appellant’s cr iminal history score wa s six, consisting of

3
five felony points and one custody-status point. Appellant’s five felony points were based
on the following convictions:
Title Disposition State Points
Fourth-Degree
Assault
01/28/2009 Minnesota .5
Throw/Expel Bodily
Substances
06/03/2010 Wisconsin .5
Manufacture/Delivery
of Methamphetamine
08/08/2011 Wisconsin 1.5
Manufacture/Delivery
of Methamphetamine
08/08/2011 Wisconsin 1.5
Possession of
Methamphetamine
11/19/2015 Wisconsin .5
Fifth-Degree
Possession of
Methamphetamine
03/08/2017 Minnesota .5

The PSI reported that the Wisc onsin manufacturing-and-delivering-
methamphetamine convictions, which arose from criminal acts on two different dates, were
equivalent to a felony third-degree controlle d substance sale in Mi nnesota and assigned
one-and-one-half criminal history points to each.1 One-half point each was assigned to the
Wisconsin throwing-of-bodily-substances conviction and to the Wisconsin possession-of-
methamphetamine conviction. The PSI recommended that appellant receive a presumptive
57-month sentence under the Minnesota Senten cing Guidelines using the computed
criminal history score.
At sentencing, appellant argued that th e 2011 Wisconsin convictions should not be
treated as felonies because appellant was sentenced to no more than 365 days imprisonment

1 Appellant argues only that these convictions were not sentenced as felonies, and he makes
no argument on appeal that these offenses were otherwise weighted improperly.

4
on either of those two convictions. He argued that the 2011 Wisconsin sentences are
therefore equivalent to gross-misdemeanor se ntences in Minnesota. Appellant did not
address at sentencing—and the state accordi ngly did not offer any documentation or
evidence concerning—the one-ha lf points assigned for the throwing-bodily-substances
conviction and the possession-of-methamphetamine conviction.
Appellant also moved the district court for a downward dispositional departure from
the sentencing guidelines. Appellant indicated to the district court that he suffers from a
mental illness and self-medicates with controlled substances. He argued that he has support
from his family, is motivated to turn his life around, and is remorseful for his actions.
The district court concluded that appellant ’s criminal history score was six, denied
appellant’s motion for a downward dispositional departure, and sentenced appellant to 57
months in prison on the third-degree possession-of-a-controlled-substance conviction.
This appeal followed.
D E C I S I O N
The district court did not err in computin g appellant’s criminal history score to
include three felony points for the 2011 Wisconsin convictions for manufacturing and
delivering methamphetamine.

Appellant argues that his 12-month conc urrent sentences in Wisconsin for
manufacturing and delivering methamphetamine should not have been tr eated as felonies
because, in each of those cases, appellant was sentenced to serve 12 months in state prison
and 24 months of extended supervision.
We will not reverse a district court’s calc ulation of a defendant ’s criminal history
score absent an abuse of discretion. State v. Maley , 714 N.W.2d 708, 711 (Minn. App.

5
2006). But the interpretation of the sentencing guidelines is a legal question that appellate
courts review de novo. State v. Scovel, 916 N.W.2d 550, 554 (Minn. 2018).
Convictions from other jurisdictions mu st be considered when calculating a
defendant’s Minnesota criminal history score. Minn. Sent. Guidelines 2.B.5.a & cmt.
2.B.502 (Supp. 2017). When classifying out-of-state prior offenses, “[a]n offense may be
counted as a felony only if it would both be defined as a felony in Minnesota, and the
offender received a sentence that in Minnesota would be a felony-level sentence.” Scovel,
916 N.W.2d at 555 (quotation om itted). The state bears the bur den of establishing that a
prior out-of-state conviction would constitute a felony in Minnesota. Maley, 714 N.W.2d
at 711.
Appellant does not dispute that the two Wisconsin convictions for manufacturing or
possessing methamphetamine would be defined as felonies had they been committed in
Minnesota. He argues that, because each sentence included only 365 days of incarceration,
his Wisconsin sentences were not felony-level sentences under Minnesota law.
In Minnesota, a felony offense is one “for which a sentence of imprisonment for
more than one year may be imposed.” Minn. Stat. § 609.02, subd. 2 (2016). A crime is
considered a gross misdemeanor so long as it “is not a felony or misdemeanor.” Minn.
Stat. § 609.02, subd. 4 (2016).
When sentencing a defendant on a Minneso ta felony, “the court may pronounce a
stay of execution.” Minn. Sent. Guidelines 3. A.1 (2017). “A ‘stay of execution’ occurs
when the court accepts and records a finding or plea of guilty, and a prison sentence is
pronounced, but is not executed.” Minn. Sent. Guidelines 1.B.19.b (Supp. 2017). “If the

6
offender successfully completes the stay, the case is discharged, but the offender continues
to have a record of a felony conviction, which is included in criminal history under section
2.B.” Id. A stay of execution of a sentence of mo re than one year in prison is a felony
sentence. See generally State v. Watson, 925 N.W.2d 658, 660 (Minn. App. 2019), review
denied (Minn. May 28, 2019).
Wisconsin employs bifurcated felony senten ces. Wis. Stat. § 973.01(1) (2016). “A
bifurcated sentence is a sentence that consists of a term of confinement in prison followed
by a term of extended supervision . . . .” Wis. Stat. § 973.01( 2) (2016). Like a stay of
execution in Minnesota, where the court retains the ability to execute a defendant’s stayed
sentence if conditions imposed by the court are violated, a Wisconsin court may revoke a
defendant’s extended supervision and return th e defendant to prison if the defendant is
found to have violated the terms of extended supervision. Wis. St at. § 302.113(9)(am)
(2016).
The district court here assigned appellant a criminal history score of six, which
included three felony points for appellant’s Wisconsin convictions of manufacturing and
delivering methamphetamine. While it is true that appellant only served 365 days in prison
on those two Wisconsin convictions, the Wisc onsin court also imposed two years of
extended release as part of ea ch of appellant’s sentences. The Wisconsin sentences were
not simply that appellant serve 365 days in jail. Under Wisconsin law, appellant could
have served as much as th ree years in prison had he vi olated his extended release
conditions. See id. (providing that “[i]f a person rele ased to extended supervision under
this section violates a cond ition of extended supervision, the reviewing authority may

7
revoke the extended supervision of the person . . . [and] order the person to be returned to
prison”); State v. Brown, 2006 WI 131, ¶ 44, 298 Wis. 2d 37, 61, 725 N.W.2d 262, 273
(explaining that “extended supervision and reconfinement are . . . substitutes for the parole
system”).
Properly understood, and regardless of wh ether he actually served more than one
year in prison on the Wisconsin convictions, appellant faced the possibility of serving more
than one year in prison if he vi olated extended-release conditions. See Watson , 925
N.W.2d at 660. Therefore, appellant’s Wi sconsin sentences had th e same effects as a
Minnesota sentence of an imposed sentence of 36 months in prison, with 24 months stayed
on condition that appellant serve 12 months in jail, followed by probation for an additional
24 months on conditions. We conclude that appellant’s Wisconsin sentences were
sufficiently similar to a Minnesota stay of ex ecution to be the equivalent of a stay of
execution of a felony sentence for criminal-history-score purposes.
We decline to address appellant’s argument that the district court erred by including
two one-half points for Wisconsin convicti ons in calculating appellant’s criminal
history score.

Appellant also argues on appeal that the PSI and sentencing worksheet are
insufficient to support the district court’s decision to assign one-half-point each to his
Wisconsin convictions for throwing bo dily substances and possession of
methamphetamine.
Appellate courts may decline to address an argument on appeal if the record is
insufficient for appellate review. See State v. Gustafson , 610 N.W.2d 314, 321 (Minn.

8
2000) (concluding that the record was insu fficient for proper appellate review of
appellant’s pro se arguments).
Our review of the record reveals that it is insufficiently developed to address
whether the district court erred by assigning one additional criminal history point for these
two half-point convictions.
Appellant filed several documents with the district court that briefly mention this
issue. Appellant’s first submission to the di strict court on this topic was a difficult-to-
understand handwritten letter to the district court judge received on December 31, 2018.
The letter seems to concern itself primarily with informing the judge of appellant’s mental-
health issues. The letter also makes references to the computation of appellant’s criminal
history score and the DSRA, discussed below. The letter mentions a difficult-to-discern
Fourth Amendment concern that appellant ha d (despite the letter having been sent after
appellant’s guilty plea). The primary purpose of the letter appears to have been to express
appellant’s preference that he be admitted to a mental-health court. This handwritten letter
does not appear to have been served on the prosecutor, and is not styled as a motion at all.
The district court received a much-more-or derly “motion for correction of sentence”
written in appellant’s own hand on January 10, 2019. That submission does not appear to
have been accompanied by any affidavit of service showing that the state was served with
this purported motion.
Appellant’s trial counsel served and filed a motion concerning sentencing issues on
January 28, 2019. From the r ecord, it appears that counsel and the district court treated

9
this last pleading as the operative motion at sentencing, and this document said nothing at
all about these criminal history one-half points from Wisconsin convictions.
The record does not reflect that appellant’s trial counsel presented any argument to
the district court concerning these two one-half points. Nor does the record reflect that this
issue was considered by the district court. For these reasons, we decline to reach the merits
of appellant’s argument that he was imprope rly assigned one criminal history point for
these convictions. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (providing that
appellant courts do not address questions not presented to a nd considered by the district
court).
Because we do not reach the merits of this argument, appellant may raise this issue
in a petition for postconviction relief, should he elect to file one. The state would thereby
have the opportunity to addr ess the argument and the distri ct court could consider the
evidence concerning it.
We decline to address appellant’s pro se argument that the district court erred by not
reducing appellant’s criminal history score because of the DSRA.

Appellant argues in a pro se supplementa l brief that his 2017 felony drug conviction
for fifth-degree possession of methamphet amine should be considered a gross
misdemeanor for criminal-history-score pur poses because of the DSRA and that his
criminal history score must be recalculated accordingly. See 2016 Minn. Laws ch. 160,
§§ 1-22, at 576-92; State v. Otto , 899 N.W.2d 501, 503 (Min n. 2017) (discussing the
DSRA).

10
In 2016, the DSRA decrea sed the severity of some first-time drug-possession
violations from a felony-level to a gross-misdemeanor-level. See Minn. Stat. 152.025,
subd. 4(a) (2016) (providing that “a person . . . who has not been previously convicted of
a violation of this chapter . . . is guilty of a gross misdemeanor”). Discussing the
application of the DSRA, the supreme court held in State v. Kirby that “[t]he amelioration
doctrine applies to cases that are not yet final when the change in law takes effect.” 899
N.W.2d 485, 488 (Minn. 2017) (emphasis in original); see Otto, 899 N.W.2d at 503.
Appellant was charged with fifth-degree possession of methamphetamine in 2014,
but was not convicted until 2017. On appe al, appellant claims entitlement “to the
amelioration benefits” of the DSRA, but cites no authority for the argument that his now-
final conviction should be re-evaluated for cr iminal-history-score purposes. The record
does not reveal whether appellant requested or that the district court applied the
amelioration doctrine to this felony sentence when it was announced in 2017.
As with the Wisconsin one-half points, th e district court does not appear to have
considered this argument, apparently becau se appellant’s counsel’s served-and-filed
motion was treated as the operative pleading by the district court. As noted above, we
decline to address an argument on appeal if the record is insufficient for appellate review.
Gustafson, 610 N.W.2d at 321. We therefore declin e to reach the merits of appellant’s
DSRA argument based on the insufficiency of the record on appeal. This issue may be
raised by petition for postconviction relief, whic h would afford the district court the
opportunity to resolve the issue based on a complete record.

11
The district court acted within its discretion when it denied appellant’s motion for a
downward dispositional departure.

Appellant contends that the district court abused its discretion by denying his motion
for a downward dispositional departure from the sentencing guidelines “because there were
substantial and compelling circumstances to warrant the departure.”
Reviewing courts “afford th e [district] court great di scretion in th e imposition of
sentences and reverse sentencing decisions on ly for an abuse of that discretion.” State v.
Soto, 855 N.W.2d 303, 307-08 (M inn. 2014) (quotation omitted ). A district court may
depart from the Minnesota Sentencing Guide lines only for substantial and compelling
reasons. Id. at 308. To maintain uniformity and pr oportionality in sentencing, departing
from the sentencing guidelines is generally discouraged. State v. Rund, 896 N.W.2d 527,
532 (Minn. 2017).
In deciding whether to grant a request for a downward dispositional departure, a
district court is required to consider whether mitigating circumstances exist. Soto, 855
N.W.2d at 308. If the district court determines such circumstances are present, it must then
consider whether they “provide a substa ntial and compelling reason not to impose a
guidelines sentence.” Id. (quotation omitted). The mere ex istence of a mitigating factor
does not require that the district court depart from the presumptive sentence. State v. Pegel,
795 N.W.2d 251, 253-54 (Minn. App. 2011). A district court is required to provide reasons
for departure, but “an explanation is not re quired when the court considers reasons for
departure but elects to impose the presumptive sentence.” State v. Van Ruler, 378 N.W.2d
77, 80 (Minn. App. 1985). Therefore, this court will not ordinarily interfere when the

12
district court imposes a sentence “fall[ing] within the presumptive sentence range, . . . even
if there are grounds that would justify departure.” State v. Abeyta, 336 N.W.2d 264, 265
(Minn. 1983).
A district court’s primary focus when de termining whether to grant a dispositional
departure should be on “the defendant as an individual and on whether the presumptive
sentence would be best for him and for society.” State v. Heywood, 338 N.W.2d 243, 244
(Minn. 1983). A district court should take into account several relevant factors when
deciding whether a defendant is particularly amenable to probation. State v. Chaklos, 528
N.W.2d 225, 228 (Minn. 1995). These fact ors, sometimes collo quially called the Trog
factors, include the defendant’s “age, his pr ior record, his remorse, his cooperation, his
attitude while in court, and the support of friends and/or family.” State v. Trog, 323 N.W.2d
28, 31 (Minn. 1982). These factors, however, “are not the only factors that can bear on a
defendant’s amenability to probation, and they may not all be relevant in any given case.”
Soto, 855 N.W.2d at 310.
Here, appellant cites to several Trog factors in support of his argument that he is
particularly amenable to probation. Appellant argues that he is remorseful for his actions,
that he is motivated to remain sober, that he has the support of friends and family, and that
he wants to participate in a mental-health cour t. Appellant further indicates that he was
successful on probation for 14 months before this offense.
The district court considered appellant ’s departure argument and the evidence
supporting it. It determined th at the factors weighing in favo r of a probationary sentence
were not “sufficient to support a departure from the guideline sentence.”

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We see no abuse of the district court’s discretion. The reco rd contains evidence
supporting the district court’s determinati on, including evidence of appellant’s prior
repeated probation violations, failed treatmen t attempts, and rules violations while in
custody. The district court acted within its sentencing discretion.
Affirmed.