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This opinion will be unpublished and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
A19-0760

State of Minnesota,
Respondent,

vs.

Mark Andrew Huyber,
Appellant.

Filed May 11, 2020
Affirmed in part, reversed in part, and remanded; motion granted
Slieter, Judge

Olmsted County District Court
File No. 55-CR-18-4492

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

Mark Ostrem, Olmsted County Attorney, Jennifer D. Plante, Seni or Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Slieter, Judge; and
Kalitowski, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SLIETER, Judge
In this direct appeal from final judgments of conviction, appellant Mark Andrew
Huyber challenges his aggravated sentence. Huyber argues that (1) the district court erred
by permitting the state to seek an aggravated sentence when the state failed to timely file
its notice pursuant to Minn. R. Crim. P. 7.03; (2) the chief judge erred by not disqualifying
the presiding judge from the aggravated -sentencing trial; and (3) the district court
incorrectly calculated his criminal-history score. Because the existence of good cause and
lack of unfair prejudice against Huyber supports the district court ’s acceptance of the
state’s late notice seeking an aggravated sentence , and the circumstances did not require
the presiding judge to be disqualified, we affirm in part. Although the dist rict court
properly calculated Huyber’s criminal-history score at the time of sentencing, the
amelioration doctrine as applied to the recent modifications of the Minnesota Sentencing
Guidelines requires us to reverse and remand for resentencing.
FACTS
The state charged Huyber with second -degree burglary, in violation of Minn. Stat.
§ 609.582, subd. 2(a)(1) (2016), and stalking, in violation of Minn. Stat. § 609.749,
subd. 4(b) (2016). Huyber plea ded guilty to both charged offenses at his second court
appearance; there was no agreement with regard to sentencing. The district court accepted
the guilty plea for both charges and scheduled a sentencing hearing.
Before the sentencing date and in order to seek an aggravated sentence pursuant to
Minn. Stat. § 609.1095, subd. 2 (2016), the state moved to schedule the matter for a hearing

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to consider its late aggravated-sentencing motion. The state filed its motion 36 days after
the second court appearance and 11 days before the scheduled sentencing hearing. Huyber
opposed the state’s motion because it was untimely pursuant to Minn. R. Crim. P. 7.03.
The district co urt held a hearing on the state’s motion and, in granting the state’s
request to proceed with its late aggravated-sentence notice, found good cause was present
and that Huyber would not be unfairly prejudiced.
The district court subsequently held a hearing on the state’s notice to seek an
aggravated sentence. Huyber waived all challenges to the probable -cause determination
for an aggravat ed sentence and waived his right to a jury trial to address whether any
aggravated-sentencing factor existed. The district court accepted Huyber’s waivers, found
probable cause to proceed, and set the matter for a bench trial.
During the aggravated-sentencing trial, the state offered evidence of Huyber’s 1999
homicide conviction. The judge noted that he presided over that case and that he thinks
about it when he drives past the location of the homicide.
Following this statement by the presiding judge, Huyber’s counsel requested that
the presiding judge recuse himself based on his “remarkable disclosure.” The presiding
judge denied the recusal request and allowed Huyber to move for removal before the chief
judge of the judicial district. The chief judge of the judicial dis trict denied Huyber’s
request. T he parties reappeared before the pr esiding judge to resume the aggravated -
sentencing trial. The presiding judge found that the evidence supported an aggravat ed
factor because Huyber met the de finition of a dangerous offender who committed a third
violent crime.

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During sentencing, the district court assigned Huyber five criminal-history points,
which included one custody-status point because Huyber “was discharged from probation
early and he committ ed this offense within the original term of probation .” The district
court imposed an upward durational departure of an 81-month prison sentence for stalking
concurrent with a 43-month prison sentence for second -degree burglary . This appeal
follows.
D E C I S I O N
I. The district court properly allowed the state to seek an aggravated sentence
pursuant to Minn. R. Crim. P. 7.03.1
Huyber argues that the district court erred by permitting the state to seek an
aggravated sentence pursuant to Minn. R. Crim. P. 7 .03 after he pleaded guilty to both
offenses in the complaint because the late notice was not supported by good cause and he
experienced prejudice as a result of the district court’s decision. We are not persuaded.
“The interpretation of the Minnesota Rul es of Criminal Procedure is a question
[appellate courts] review de novo.” See Reynolds v. State, 888 N.W.2d 125, 129 (Minn.
2016) (footnote omitted) . “In interpreting the rules of criminal procedure, ‘[appellate

1 We reviewed Huyber’s motion to strike a portion of the state’s appellate brief related to
the aggravated-sentence issue on appeal. “The record on appeal consists of the documents
filed in the district court, the offered exhibits, and the transcript of pr oceedings, if any.”
Minn. R. Crim. P. 28.02, subd. 8. “An appellate court may not base its decision on matters
outside the record on appeal, and may not consider matters not produced and received in
evidence below.” Thiele v. Stich , 425 N.W.2d 580, 582 -83 ( Minn. 1988). The state
included a footnote in its brief to this court that referenced conversations between counsel
for the state and the assigned prosecutor who filed the motions at the district court. This
information is outside the record on appea l. We grant the motion to strike as the
information is not part of the record on appeal and disregard the information in rendering
this decision.

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courts] look first to the plain language of the rule and its purpose.’” See State v. Lee ,
929 N.W.2d 432, 439 (Minn. 2019) (quoting State v. Dahlin, 753 N.W.2d 300, 305 (Minn.
2008)). “If the language is plain and unambiguous, [appellate courts] follow the plain
language of the rule.” See id. “Because the construction of procedural rules is reviewed
de novo, we review de novo whether the notice in this case fulfills that required in the
rules.” State v. Robideau, 817 N.W.2d 180, 188 (Minn. App. 2012).
For the state to seek an aggravated sentence, it must provide notice to the defendant.2
State v. Rourke, 773 N.W.2d 913, 923 (Minn. 2009) (“[T]he State must notify the defense
of anticipated upward -departure grounds before trial, and the applicability of the noticed
grounds is an issue the district court is to resolve at the omnibus stage of the case.”).
Pursuant to Minn. R. Crim. P. 7.03,
The prosecutor must give written notice at least seven
days before the Omnibus Hearing of intent to seek an
aggravated sentence. Notice may be given later if permitted by
the court on good cause and on conditions that will not unfairly
prejudice the defendant. The notice must include the grounds
or statutes relied upon and a summary statement of the factual
basis supporting the aggravated sentence.
(Emphasis added.)
An omnibus hearing occurs in felony and gross -misdemeanor cases when a
defendant has yet to plead guilty. Minn. R. Crim. P. 11.01. Such an omnibus hearing
“must start within 42 days of the Rule 5 appearance if it was not combined with the Rule 8

2 Minnesota Rule of Criminal Procedure 7.03 “establishes the notice requirements for a
prosecutor to initiate proceedings seeking an aggravated sentence in compliance with
Blakely v. Washington, 542 U.S. 296, 301-305 (2004).” Minn. R. Crim. P. 7.03 cmt.

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hearing, or within 28 days of the Rule 5 appearance if it was combined with the Rule 8
hearing.” Id. (a).
An omnibus hearing is not required in all criminal cases and, as was the situation in
this matter, an omnibus hearing does not occur if the defendant enters a guilty plea either
at an initial appearance or the rule 8 hearing. See Minn. R. Crim. P. 8.02, subd. 1 (“If the
defendant pleads guilty, the pre-sentencing and sentencing procedures in these rules must
be followed.”). Based on Huyber’s guilty plea at the rule 8 hearing, the district court did
not schedule an omnibus hearing and instead scheduled the matter for sentencing.
At a hearing on the state’s motion to permit an untimely aggravated -sentencing
motion, the district court properly applied rule 7.03’s timing exception. The comments to
rule 7 also recognize this occurrence,
The rule recognizes that it may not always be possible to give
notice by seven days before the Omnibus Hearing and the court
may permit a later notice for good cause so long as the later
notice will not unfairly prejudice the defendant. In making that
decision the court can consider whether a continuance of the
proceedings or other conditions would cure any unfair
prejudice to the defendant. Pretrial issues concerning a
requested aggravated sentence will be considered and decided
under the Omnibus Hearing provisions of Rule 11.
Minn. R. Crim. P. 7.03 cmt.; see State v. Pero, 590 N.W.2d 319, 326 (Minn. 1999) (stating
that “ comments [to the Minnesota Rules of Criminal Procedure ] are recognized as
providing guidance which courts may follow”). We , in reviewing the district court’s
decision to permit the late notice, follow the plain language of the rule.3

3 The state argued in its brief that we should look to Minn. R. Crim. P. 27.03, subd. 1(B)(6),
as permitting their motion. The state’s argument is misguided. Rule 27.03, subd. 1(B)(6),

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Good Cause
The Minnesota Rules of Criminal Procedure do not provide a definition for good
cause. We look to the legal dictionary definition to interpret the meaning of good cause
because it is a term used in the legal context. See Bergman v. Caulk, 938 N.W.2d 248, 251
(Minn. 2020) (applying legal dictionary definitions to determine the plain meaning of a
word when used in the legal context). Good cause is defined as “[a] legally sufficient
reason.” Black’s Law Dictionary 266 (10th ed. 2014).
Huyber contends that the state failed to act diligently such that there is no basis for
good cause. The state explained its reason for not filing the notice until 34 days after the
entered guilty plea by noting that Huyber filed no documentation before the rule 8 hearing
suggesting that he intended to plead guilty to the offenses . At the rule 8 hearing, the
prosecutor who appeared for the state was not assigned to the case. The assigned
prosecutor learned about Huyber’s guilty plea that day after the hearing . When Huyber
pleaded guilty, the state did not have BCA reports related to the matter nor had law
enforcement completed its investigation. The assigned prosecutor “had a personal matter
that was very serious and important that [he] needed to address,” which kept him out of the
office for almost two weeks. Upon the assigned attorney’s return, he met with the victim
about the matter and filed the motion and notice to seek an aggravated sentence.

relates to motions at a sentencing hearing to address issues related to a presentence
investigation or the sentencing worksheets. Reading rule 27.03, subd . 1(B)(6), to
encompass a motion to seek an aggravated sentence covered by rule 7.03 would undermine
the goal of providing notice to a defendant about the state’s intent to seek an aggravated
sentence early on in a criminal matter.

8
The state presents a sufficient explanation for its non-filing of its aggravated -
sentence notice by the date that Huyber plead guilty . After it made its determination to
seek an aggravated sentence , the assigned prosecutor experienced an emergency that
required their attention out of the office. In summary, we conclude, as did the district court,
that good cause existed for the late notice.
Unfair Prejudice
Even when otherwise supported by good cause, however, late notice may be
permitted only “on conditions that will not unfairly prejudice the defendant.” Minn. R.
Crim. P. 7.03. The comment to rule 7 notes that “the court can consider whether a
continuance of the proceedings or other conditions would cure any unfair prejudice to the
defendant.” Minn. R. Crim. P. 7.03 cmt.
Huyber, in arguing the presence of unfair prejudice by allowing the late notice, relies
on the negative impact of having to engage in a n aggravated-sentencing trial to determine
whether he qualified as a dangerous offender who committed a third violent crime , he
remained in custody while the c ase proceeded on the aggravated -sentencing trial, and he
ultimately received a sentence above the presumptive guideline sentence . Although
Huyber experienced these consequences , we conclude that they do not constitute the sort
of prejudice that rule 7.03 is protecting a defendant from experiencing.
We acknowledge the concern that a defendant who enters a guilty plea may be
surprised by the state’s late request to seek an aggravated sentence. The district court
recognized this concern and noted that it would consider a request by Huyber to withdraw
his guilty plea. Allowing a defendant to withdraw the guilty plea after later learning about

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the potential aggravated sentence would certainly avoid any unfair prejudice related to the
decision to plead guilty.
We recognize another area of potential concern when the state files such late notice
is that a defendant may not be prepared to proceed to an aggravated -sentence trial. That
concern is not present here. The district court granted the state’s request to provide the late
aggravated-sentence notice on August 27, 2018, and the trial on the aggravated sentence
did not occur until January 2019. Huyber was provided an abundance of time to prepare a
defense related to the aggravated -sentencing trial. Huyber was therefore not unfairly
prejudiced due to a lack of preparation by the late notice of aggravated sentence.
Because the state had a good-cause basis to file its late notice to seek an aggravated
sentence and Huyber was not unfairly prejudiced, the district court did not err by permitting
the state to proceed on its late notice.
II. The judge was not disqualified.
Huyber argues that the presiding judge should have been removed from presiding
over the aggravated-sentencing trial because of a statement that the presiding judge made
about Huyber’s 1999 homicide conviction. Huyber contends that the presiding judge’s
failure to be disqualified constitutes structural error by depriving him an impartial judge,
which requires reversal of the sentence and remand for a new aggravated-sentencing trial.
“A judge must not preside at a trial or other proceeding if disqualified under the
Code of Judicial Conduct.” Minn. R. Crim. P. 26.03, subd. 14(3). “Whether a judge has
violated the Code is a question of law that [appellate courts] review de novo.” See State v.
Mouelle, 922 N.W.2d 706, 713 (Minn. 2019).

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“A judge shall disqualify himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned . . . .” Minn. Code of Jud. Conduct
Rule 2.11(A). “Impartiality means the absence of bias or prejudice in favor of, or against,
particular parties or classes of parties, as well as maintenance of an open mind in
considering issues.” Troxel v. State , 875 N.W.2d 302, 314 ( Minn. 2016) (quotation
omitted). “In deciding whether disqualification is required, the relevant question is
‘whether a reasonable examiner, with full knowledge of the facts and circumstances, would
question the judge’s impartiality.’” Mouelle, 922 N.W.2d at 713 (q uoting In re Jacobs ,
802 N.W.2d 748, 753 ( Minn. 2011)). Appellate courts perform this analysis from “the
perspective of ‘an objective, unbiased layperson.’” See id. (quoting Jacobs, 802 N.W.2d
at 753). And “[o]ur judicial system presumes that judges are capable of setting aside
collateral knowledge they possess and are able to ‘approach every aspect of each case with
a neutral and objective disposition.’” State v. Dorsey, 701 N.W.2d 238, 247 (Minn. 2005)
(quoting Liteky v. United States , 510 U.S. 540, 5 61-62, 114 S. Ct. 1147, 1160 (1994)
(Kennedy, J., concurring)).
The presiding judge made a statement during the aggravated-sentencing trial about
his knowledge of Huyber’s 1999 homicide conviction because he presided over that matter
as one of his first cases as judge. The interaction involved Huyber’s trial counsel stating,
“Yes, Mr. Huyber has a conviction from a 1999 murder. Going on 20 years now. And
what does the Court know about that murder? Absolutely nothing other than he has that
conviction on his record.” The presiding judge responded that in fact Huyber’s 1999
homicide “case was about the first thing [he] touched as a new judge in the fall of 1999.”

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The presiding judge acknowledged that Huyber’s trial counsel correctly identified that
“there’s no description of exactly what happened.” And yet, the presiding judge explained,
“I can’t walk – I can’t drive past, and I drive past it all the time, the location . . . without
thinking about Mr. Huyber. So, you know, that’s something that stuck with me over the
years.”
Before the presiding judge rendered his verdict on the aggravated factors, Huyber’s
trial counsel orally requested that the presiding judge recuse himself. The presiding judge
denied the request after noting that he did not bear any ill will or anger towards Huyber,
rather that he acknowledged awareness of the case as part of his experience as a judge .
Huyber’s trial counsel filed an emergency motion on the matter to the chief judge of the
district.4 The chief judge denied Huyber’s request based on her determination that Huyber
failed to establish a basis to support an appearance of partiality.
The mere assertion by a party that a judge is partial is not a per se basis to question
a judge’s impartiality, but neither does a judge’s assertion of impartiality automatically
dispel an otherwise reasonable question. See State v. Burrell, 743 N.W.2d 596, 602 (Minn.
2008). Parties commonly present information to a judge that results in the judge learning
“highly prejudicial evidence” that “is even incriminating.” Mouelle, 922 N.W.2d at 713.
And yet, appellate courts still “presume that the district court is able to set aside knowledge

4 “A request to disquali fy a judge for cause must be heard and determined by the chief
judge of the district or by the assistant chief judge if the chief judge is the subject of the
request.” Minn. R. Crim. P. 26.03, subd. 14(3).

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prejudicial to the defendant because doing so is necessary to the proper discharge of her
duties.” See id. at 714.
We do not believe that an objective, unbiased layperson analyzing this issue would
find a concern related to impartiality by these facts. The presiding judge knew about the
1999 homicide conviction and the conviction is part of Huyber’s criminal history that the
state presented to support an aggravated factor for a dangerous offender who committed a
third violent felony. See Minn. Stat. § 609.1095, subd. 2. The presiding judge’s knowledge
of the 1999 case related to his personal involvement as the assigned judge. Although the
judge acknowledged his recollection of the case when passing the site of the homicide and
that it prompted his memory of Huyber, this exhibits no particular partiality of the judge
or an inability to set aside such knowledge to address the facts of this particular case to
determine an appropriate sentence. Our review of the record convinces us that the district
court properly and impartially applied the presented evidence to the law . We therefore
conclude that Huyber has no right to a new trial because the presiding judge did not engage
in behavior that reasonably questions his impartiality.
III. Huyber is entitled to resentencing based upon the amelioration doctrine.
Huyber contends in his pro se supplemental brief that the district court erred by
assigning him a custody -status point though he was discharged from his probationary
period before committing the current criminal offense. The state does not respond to
Huyber’s pro se argument. We bear the responsibility, even when a party fails to respond,
to address the case based on the law. See State v. Hannuksela, 452 N.W.2d 668, 673 n.7
(Minn. 1990).
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Huyber’s trial counsel objected at sentencing to Huyber ’s criminal-history score,
asserting that Huyber should only have four criminal-history points instead of five as
shown on the sentencing worksheet. The sentencing-guidelines sheet reported that, of the
five total criminal-history points, Huyber should be assigned one custody-status point for
a 2014 felony conviction. In 2014, Huyber pleaded guilty to a felony offense, and the
sentencing court stayed a 21-month
prison sentence and placed Huyber on probation for
five years. In 2015, the district court discharged Huyber from probation. The district court
rejected Huyber’s argument at sentencing based on the
plain language of the sentencing
guidelines at the time: “Assign a custody point if the offender is discharged from probation
but commits an offense within the initial period of probation pronounced by the court.”
Minn. Sent. Guidelines 2.B.2.a.(4) (Supp. 2017). We agree with the district court that the
sentencing guidelines in effect on the date of sentencing required such a result.
In 2019, however, the Minnesota Sentencing Guidelines Commission removed the
early-release-from-probation language from the sentencing guidelines as grounds to assign
a custody-status point. See Minn. Sent. Commission, Minnesota Sentencing Guidelines &
Commentary August 2019 Amendments 15 (2019), http://mn.gov/msgc-
stat/documents/Guidelines/2019/AdoptedModificationsMinnSentencingGuidelinesComm
entary.pdf.
As this court explained in State v. Robinette, the amelioration doctrine applies to the
sentencing commission’s modification in this context. __ N.W.2d __, __, 2020 WL
1909348, at *5 (Minn. App. Apr. 20, 2020). Therefore, Huyber is entitled to resentencing
based upon his corrected criminal-history score. See State v. Oreskovich, 915 N.W.2d 920,

14
928-29 (Minn. App. 2018) (holding that the appropriate remedy for an incorrect criminal-
history score is remanding for resentencing) . The record before us clearly shows that
Huyber had been discharged from probation at the time of this offense. Because the record
is clear on this fact, w e therefore reverse and remand for the district court to resentence
Huyber based upon a criminal-history score of four . The district court on remand may
exercise its discretion, if it so chooses, to depart at resentencing because the district court
provided reasons to do so at the original sentencing. Cf. State v. Geller, 665 N.W.2d 514,
517 (Minn. 2003) (“[A]bsent a statement of the reasons for sentencing departure placed on
the record at the time of sentencing, no departure will be allowed.”).
Affirmed in part, reversed in part, and remanded; motion granted.