State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0431

State of Minnesota,
Respondent,

vs.

Nicole Lee Baker,
Appellant.

Filed March 8, 2021
Reversed and remanded
Slieter, Judge

Pennington County District Court
File No. 57-CR-18-102

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

Seamus P. Duffy, Pennington County Attorn ey, Max W. LaCoursiere, Assistant County
Attorney, Thief River Falls, Minnesota (for respondent)

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

Considered and decided by Slieter, Presiding Judge; Je sson, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this direct appeal, appellant challenge s her aggravated sentence for a conviction
of a second-degree controlled-substance offense. Appellant argues that the district court
erred in its application of the relevant aggravating factor. Appellant separately challenges

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the district court’s calculation of her criminal-history score, arguing that the state failed to
adequately prove that her out-of-state drug conviction properly results in a criminal-history
weight of 1.5 points.
Because we conclude the district court improperly based its departure upon facts of
a dismissed count and because the state did not produce evidence su pporting the district
court’s calculation of appellant’s criminal-history score, we reverse and remand.
FACTS
Respondent State of Minnesota charged a ppellant Nicole Lee Baker with one count
of third-degree murder. The complaint alleged that on or about February 8, 2018, appellant
“proximately caused the death of [another]” through her sale of a mixture containing
heroin, which was later discovere d to contain fentan yl. Appellant later pleaded guilty to
amended charges of second-degree controlled-substance crime, in violation of Minn. Stat.
§ 152.022, subd. 1(7) (2016) (sale of controlle d substance in a school or park zone), and
third-degree controlled-substance crime, in violation of Minn . Stat. § 152.023,
subd. 2(a)(2) (2016) (possession of three or more grams of heroin).
During the plea hearing, appellant testif ied that she had purchased an amount of
heroin (which had been, without her knowledge, laced with fentanyl) from R.B. in Bemidji.
N.M. was present during this transaction. Af ter returning to her Thief River Falls home,
appellant sold N.M. some of the heroin. 1 A portion of the hero in sold to N.M. was

1 Appellant admitted that her home was within 300 feet of Northrup Park in Thief River
Falls, and that she had possessed at least three grams of heroin at that location.

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eventually conv eyed to S.C., either by N.M. or another individu al. S.C. ingested the
fentanyl-laced heroin and died of an overdose.
Respondent sought an aggr avated upward sentence de parture on the ground that
appellant “committed the charged offenses as a part of a group of three or more offenders
who all actively participated in the crime.” Appellant waived her right to a jury trial on the
existence of the aggravating factor. The state relied on appellant’s guilty plea testimony to
support its argument for an upward departure.
The district court imposed 105 months ’ imprisonment, an upward durational
departure from the presumptive sentence rang e of 67 to 93 months for the second-degree
controlled-substance crime based on there being “three or more people . . . involved in th[e]
transaction.” The court imposed a concu rrent guidelines sentence of 51 months’
imprisonment for the third-degree controlled-substance crime. The district court found that
appellant had a criminal-history score of 3, which included 1.5 points for an out-of-state
controlled-substance conviction. Appellant did not object to this criminal-history score.
On appeal, appellant ch allenges both the imposition of the upward durational
departure and the district court’s calculation of her criminal-history score.
DECISION
I. Upward Departure—Aggravating Factor
A sentencing court may depart from the pr esumptive sentences set forth in the
Minnesota Sentencing Guidelines only if “substantial and compelling circumstances
justify[] the departure.” State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009) (quotation
omitted). Such circumstances exist if “the defendant’s conduct was significantly more or

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less serious than that typically involved in the commission of the offense in question.” Id.
To help courts make this determination, the guidelines provide a “nonexclusive list of
factors that may be used as reasons for departure.” Minn. Sent. Guidelines 2.D.3 (2018).
Appellate courts “review[] a district cour t’s decision to depart from the presumptive
guidelines sentence for an abuse of discretion.” See Edwards , 774 N.W.2d at 601.
However, we first review de novo whether the particular grounds for an upward departure
were permissible. State v. Rabold, 935 N.W.2d 902, 906 (Minn. App. 2019). Then, once
we determine that the grounds were permi ssible, we review the ultimate decision of
whether to depart for an abuse of discretion. Id.
As to the existence of an aggravat ing factor, the district court found:
[B]ased upon the evidence presented and [appellant]’s own
testimony at the plea hearing . . . the Court does find beyond a
reasonable doubt that there were three or more persons
involved in the transactions which resulted in the death of the
victims . . . . [T]he Court does find that that factor has been
proven beyond a reasonable doubt.

The complete text of the aggravating factor that the district court relied on in imposing an
upward departure states: “The offender committed the crime as part of a group of three or
more offenders who all ac tively participated in the crime .” Minn. Sent. Guidelines
2.D.3.b.10 (emphasis added). Because the di strict court relied on the involvement of
multiple people in a crime which had been dismissed, the district court erred by basing the
sentencing departure on this factor.
The Minnesota Supreme Court has delineate d facts which cannot be considered in
deciding whether an upward departure is warr anted. Specifically, the court may not base

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an upward departure on (1) “facts necessary to prove an element of the offense,” (2) facts
“contemplated by the legislature when it set out the punishment for the offense being
sentenced,” (3) “facts underlyi ng an uncharged separate” inci dent unless they show that
the offense being sentenced wa s committed in a particularly serious way, or (4) facts
underlying a separate conviction that was part of the same behavioral incident. Edwards,
774 N.W.2d at 602-03. It is the third exam ple which here prohibits the use of this
aggravating factor.
The aggravating factor identified by the district court relates only to the third-degree
murder offense originally charged but not included in the amended complaint and not
admitted to by appellant. As the Minnesota Supreme Court further explained:
Our restrictions on the use of facts underlying separate offenses
to depart upward originated in State v. Ott , where we
considered whether the district court could base a decision to
impose consecutive sentences, which was a departure under the
sentencing guidelines, on fact s underlying an uncharged
separate incident. State v. Ott , 341 N.W.2d 883, 884 (Minn.
1984). We concluded that facts underlying an uncharged
separate incident are an impermissible basis for departure
because those facts do not sh ow that the offense being
sentenced was committed in a particularly serious way. Id.
. . .
If evidence only supports defe ndant’s guilt of some other
offense but does not support the conclusion that the defendant
committed the instant offense for which he is being sentenced
in a particularly serious way, then it cannot be relied upon as a
ground for departure.”

Edwards, 774 N.W.2d at 602 (quotation omitted).
The offense of conviction to which the aggravating factor was applied by the district
court was the sale of heroin by appellant to N.M. in her home in Th ief River Falls. Any

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other acts are clearly “separate uncharged incident[s].” Id. Those incidents occurred in
separate locations at separate times, and fail to show that the crime itself for which
appellant was being sentenced was “committed in a particularly serious way.” Id.
In summary, the district court erred in its application of the aggravating factor and
thereby erred by imposing an upward durational departure which was solely based on this
improperly applied factor. Pursuant to th e holding of the Minnesota Supreme Court in
Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (“If the reasons [for departure] are
improper or inadequate and there is insufficient evidence of record to justify the departure,
the departure will be reversed.”), we reverse and remand for resentencing within the range
of the sentencing guidelines.
II. Criminal-History Sco re—Out-of-State Conviction
Appellant challenges the district court’s calculation of her crim inal-history score
regarding her prior out-of-state conviction. The district court calculated appellant’s
criminal-history score based on the inclusi on of an out-of-state controlled-substance
conviction which was given a criminal-history weight of 1.5 points. We review the district
court’s calculation for an abuse of discretion. State v. Maley, 714 N.W.2d 708, 711 (Minn.
App. 2006).
For a district court to use an out-of-sta te conviction to calculate a defendant’s
criminal-history score, the st ate must “establish by a fair preponderance of the evidence
that the prior conviction was valid, the defenda nt was the person involved, and the crime
would constitute a fel ony in Minnesota.” Id. Additionally, the proper weight given to a
foreign conviction “must be based on the severity level of the equivalent Minnesota felony

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offense.” Minn. Sent. Guidelines 2.B.5.c (2018). In doing so, the “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 sentence received
by offender for the offense.” Hill v. State, 483 N.W.2d 57, 58 (Minn. 1992). For foreign
controlled-substance convictions, “the amount and type of the controlled substance should
be considered in the determination of the appropriate weight to be assigned to a prior felony
sentence for a controlled substance offense.” Minn. Sent. Guidelines cmt. 2.B.503 (2018).
Appellant was convicted in 2017 in Wi sconsin for possession of methamphetamine,
in violation of Wis. Stat. § 961.41(3g)(g) (2 016), a class I felony under Wisconsin law.
That statute requires that the defenda nt “possesses or attempts to possess
methamphetamine or a controlled substance analog of methamphetamine.” Appellant
correctly notes that a defend ant may violate the Wisconsin statute by possession of any
amount of methamphetamine. As such, this could have constituted the equivalent of a
fifth-degree controlled-substance crime in Minnesota, which does not require possession
of a specific amount of controlled substance, a nd carries a criminal-history weight of 0.5
points. Minn. Stat. § 152.025, subd. 2 (2016) ; Minn. Sent. Guidelines 4.C (2016) (fifth-
degree controlled substance crimes are D2 severity level); Minn. Sent. Guidelines 2.B.1.a
(2016) (D2 crimes assigned weight of 0.5 points).
However, appellant’s prior out-of-state drug conviction was assigned a criminal-
history weight of 1.5 points. The Minnesota controlled-substance-possession offenses to
which a criminal-history weig ht of 1.5 points is given are second- and third-degree
controlled-substance possession. Minn. Sent. Guidelines 4.C (second- and third-degree

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controlled substance crimes are D7 and D6, respectively); Minn. Sent. Guidelines 2.B.1.a
(D7 and D6 crimes assigned criminal-history weight of 1.5 points). These two offenses
require evidence of a prescribed amount of c ontrolled substance. Minn. Stat. § 152.022,
subd. 2 (2016); Minn. Stat. § 152.023, subd. 2 (2016). Because respondent introduced no
evidence indicating the quan tity of methamphetamine appellant possessed while
committing the violation of Wisc onsin law, insufficient evid ence exists to justify a
criminal-history weight of 1.5 points. Maley, 714 N.W.2d at 711.
We therefore remand to allow respondent to present evidence of appellant’s
criminal-history score.2 Following a redetermination of appellant’s criminal-history score,
the district court will resentence appellant consistent with this opinion.
Reversed and remanded.

2 Pursuant to State v. Outlaw , as here, when a defendant fa ils to object to inclusion of
foreign convictions in his criminal-history score and later challenges the score on appeal,
it is appropriate for the district court to a llow the state, on remand, to present additional
evidence regarding the out-of-state offense. 748 N.W.2d 349, 356 (Minn. App. 2008),
review denied (Minn. Jul. 15, 2008). Because appellant did not object to the calculation of
her criminal-history score at sentencing, we remand on this issue to allow the state to
“further develop the sentencing record so that the district court can appropriately make its
determination.” Id.