State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1545

State of Minnesota,
Respondent,

vs.

Joseph Donald Peacock,
Appellant.

Filed July 27, 2020
Reversed and remanded
Halbrooks, Judge 

Pine County District Court
File Nos. 58-CR-17-1047, 58-CR-18-155

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

Reese Frederickson, Pine County Attorney, Lauren R. Dwyer, Assistant County Attorney,
Pine City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and
Halbrooks, Judge.

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

2
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
In this appeal from final judgment of conviction s of first- and second -degree
controlled-substance crimes, appellant challenge s his sentences, arguing that his criminal-
history score should not include a point for his Wisconsin felony convictions of bail
jumping because the state did not prove that tho se offenses are felonies under Minneso ta
law. We reverse and remand for resentencing.
FACTS
At a consolidated plea hearing, appellant Joseph Donald Peacock pleaded guilty to
first-degree drug possession in violation of Minn. Stat. § 152.021, subd.2 (a)(1) (2016),
and second-degree drug possession in violation of Minn. St at. § 152.022, subd.2 (a)(2)(1)
(2016).
A presentence investigation established that Peacoc k had a criminal-history score
of three points: one point from a gross misdemeanor battery conviction, one point from a
2019 felony drug possession conviction, and two half-points from two 2009 bail -jump ing
convictions in Wisconsin. Peacock did not object to his criminal -history score stemming
from these convictions at sentencing. Peacock was sentenced to a 95 month guidelines
sentence on the first-degree possession co nviction and a 98 month guidelines sentence on
the second-degree possession conviction, to be served concurrently. This appeal follows.

3
D E C I S I O N
Appellate courts may direct that a defendant’s sentence be corrected based on an
incorrect criminal-history score even if a defendant failed to raise the issue at sentencing.
State v. Scovel , 916 N.W.2d 550, 553 n.5 (Minn. 2018) . We review the district court’s
determination of an appellant’s criminal-history score for an abuse of discretion. State v.
Edwards, 900 N.W.2d 722, 727(Minn. App. 2017), aff’d mem. , 909 N.W.2d 594 (Minn.
2018).
“The State bears the burden of proof at sentencing to show that a prior convictio n
qualifies for inclusion within the criminal -history score.” Williams v. State, 910 N.W.2d
736, 740 (Minn. 2018). In order to include an out-of-state conviction, t he state must show
that (1) the prior conviction is valid; (2) the defendant is the person involved; and (3) the
crime would constitute a felony in Minnesota. State v. Griffi n, 336 N.W.2d 519, 525
(Minn. 1983). “The court must make the final determination as to whether and how a prior
non-Minnesota conviction should be counted in the criminal[-]history score.” Minn. Sent.
Guidelines 2.B.5.a (2018). An out -of-state offense m ay only be counted as a felony “if it
would both be defined as a felony in Minnesota, and the offender received . . . a felony -
level sentence.” Minn. Sent. Guidelines 2.B.5.b (2018).
Peacock does not dispute that his prior convictions are valid. Nor does he dispute
that he was the person involved. He argues only that the district court erred by assigning
him a felony criminal-history point because his two bail-jumping offenses under Wis. Stat.
§ 946.49, subd. 1(b) (2008) would not have been fel onies if committed in Minnesota and
because the state did not prove that they would have constituted felon ies in Minneso ta.

4
The state contends that “the Wisconsin bail -jumping convictions are felonies that
correspond with a Minnesota felony offense.” Specifically, the state argues that Wis. Stat.
§ 946.49, subd. 1(b ) (2018) is equivalent to Minn. Stat. § 609.49, subd. 1( a) (2018). We
disagree.
Wisconsin’s bail-jumping statute provides that whoever is released from custody in
a felony offense and intentionally fails to comply with the terms of his or her bond is guilty
of a Class H felony. Wis. Stat. § 946.49, subd. 1(b).
Minnesota’s failure -to-appear statute provides: “[a] person charged with or
convicted of a felony and released from custody, with or without bail or recognizance, who
intentionally fails to appear when required after having been notified that a failure to appear
for a court appearance is a criminal offense . . . is guilty of a crime for failure to appear.”
Minn. Stat. 609.49, subd. 1(a).
The state claims that these statutes “both relate to pretrial release requirements and
criminalize failure to follow those requirements.” It is true that both statutes address certain
conditions, violations of which can result in a felony when a defendant is released on bail
or bond. However, Wisconsin’s statute is broad and criminalizes any instance where a
defendant “intentionally fails to comply with the terms of his or her bond.” Wis. Stat.
§ 946.49, subd. 1. Minnesota’s statute is limited to consequences for intentionally failing ,
after notification, to appear at court.
Peacock received his two Wisconsin bail-jumping convictions for (1) drinking in
violation of the terms of his bond and (2) committing another crime while out on bond.
Neither of these convictions stems from a failure to appear in court.

5
There is nothing in the record to indicate that bail jumping would be a crime,
nonetheless a felony, in Minnesota. 1 And we do not have an equivalent statute in
Minnesota that criminalizes the failure to comply with the terms of a bond. The sentencing
worksheet d oes not explain the criminal-history points for the bail -jumping offense and
simply lists each as a half-point. At the sentencing hearing, the state did not address the
criminal-history score.
The state has not met its burden of establishing that Peacock ’s two bail-jump ing
convictions under Wis. Stat. § 946.49, subd. 1(b) qualify as felonies in Minnesota for the
purposes of inclusion in his criminal-history score. State v. McAdoo, 330 N.W.2d 104, 109
(Minn.1983). We therefore conclude that t he district court abused its discretion by
including a felony criminal-history point for the Wisconsin bail -jumping violations. We
reverse and remand for resentencing based on a criminal-history score that does not include
the felony point for appellant’s Wisconsin convictions of bail jumping.
Reversed and remanded.

1 Minnesota Appellate courts have not previously analyzed Wisconsin’s bail -jump in g
statute. However, while not identical, the supreme court has recently discussed criminal
sanctions for violations of probation. It held that violating a term of probation is not “a
court mandate, the violation of which subjects the probationer to a new criminal contempt
charge.” See State v. Jones, 869 N.W.2d 24, 29 (Minn. 2015) ( holding willful violation of
a term of probation does not itself constitute a violation of a “mandate of a court” under
Minn. Stat. § 588.20, subd. 2(4) (2014)).