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This opinion is nonprecedential except as provided by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
A20-0877

State of Minnesota,
Respondent,

vs.

Chad Allen Gustafson,
Appellant.

Filed May 10, 2021
Reversed and remanded
Jesson, Judge

Polk County District Court
File No. 60-CR-19-2570

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

Greg Widseth, Polk County Attorney, Clifford Wardlaw, Assistant County Attorney,
Crookston, Minnesota (for respondent)

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

Considered and decided by Reyes, Presiding Judge; Wo rke, Judge; and
Jesson, Judge.

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NONPRECEDENTIAL OPINION
JESSON, Judge
Pursuant to a plea agreemen t with the state, appellant Chad Gustafson pleaded guilty
to third-degree possession of a controlled substance.1 The district court accepted the plea
and sentenced Gustafson to 46 months’ impris onment, consistent with the state’s request
for a sentence at the top of th e applicable sentencing guide lines range with Gustafson’s
assumed criminal-history score of three. Gustafson appeals, arguing that his
criminal-history score was in correctly calculated. Becaus e recent amendments to the
sentencing guidelines must be applied to Gustafson’s case and the state failed to prove that
Gustafson’s previous North Dakota convictions should be included in his criminal-history
score, we reverse and remand.
FACTS
After a state trooper discovered a pipe and methamphetamine in appellant Chad
Gustafson’s car, the state charged Gustafson with first-degree sale of a controlled substance
weighing more than 17 grams, third-degree possession of a controlled substance weighing
more than ten grams, and failure to affix a tax stamp.2 The state then offered Gustafson a
plea agreement: in exchange for a plea of guilty to third-degree possession of a controlled
substance and a sentence at the “top of the appropriate guidelines range,” the state would
dismiss Gustafson’s remaining charges. The agreement further indicated that because the

1 Minn. Stat. § 152.023, subd. 2(a)(1) (2018).
2 Minn. Stat. §§ 152.021, subd. 1(1), .023, subd. 2(a)(1), 279D.09, subd. 1a (2018).

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parties assumed Gustafson’s criminal-history score was three, his anticipated sentence was
46 months’ imprisonment.
Gustafson accepted the state’s offer and s ubmitted a plea petition to enter a plea of
guilty to third-degree possession of a controlled substance. In doing so, Gustafson agreed
to “receive[] a guidelines senten ce, high end of the box. Parties believe criminal history
score is III which results in 46 month executed sentence. Other charges to be dismissed at
sentencing.” (Emphasis added.)
At the combined plea and sentencing hearing, the parties reiterated their
understanding of the terms of the plea agreement:
THE DEFENSE: Your Honor, c onsistent with the letter
offer you have before you and the plea
petition, Mr. Gustafson will be entering a
plea of guilty to Count 2. Counts 1 and 3
will be dismissed. The parties anticipate
a 46-month sentence. We have a criminal
history score of three, as calculated by
Corrections. . . .
THE STATE: Yes, your Honor. We’ve had a chance to
have a sentencing worksheet done. We
took the defendant’s criminal history
category off that worksheet . We applied
it to a controlled substance crime third
degree . . . and the top of the box is 46
months. So the offer that I’ve made to the
defendant is a plea to Count 3, dismiss the
remaining counts at sentencing. The
defendant would receive a sentence at the
top of the applicable guideline box, which
is 46 months.

(Emphasis added.) The parties based their assumption about Gustafson’s criminal-history
score—and his corresponding anticipated sentence—on a se ntencing worksheet that

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assigned Gustafson a criminal-history score of three. The worksheet assigned two-and-a-
half felony points for Gustafson’s three prior convictions from North Dakota—harassment,
manufacture of a controlled substance (metha mphetamine), and unlawful possession of
methamphetamine.3 An additional custody-status poi nt was assigned because Gustafson
was on probation for the North Dakota harassment charge at the time of his arrest in the
present case.
After accepting Gustafson’s plea, the dist rict court sentence d him to 46 months’
imprisonment, consistent with the parties’ agreement for a senten ce at the top of the
applicable guidelines range for a third-de gree possession conviction and Gustafson’s
assumed criminal-history score of three.
Gustafson appeals.
DECISION
Gustafson challenges his sent ence, arguing that the district court erred in assigning
him a criminal-history score of three. He identifies two errors in the district court’s
calculation of this score. First, becaus e of the 2019 amendmen ts to the Minnesota
Sentencing Guidelines, Gustafson asserts that he should not have been assigned a full
custody-status point, but rather only one-half point. Second, Gustafson claims that the state
did not satisfy its burden of proof to show that his prior drug convictions from North Dakota
could be properly considered as part of his criminal-history score. In sum, Gustafson
argues that his criminal-history score is actually two, and requests resentencing according

3 N.D. Cent. Code §§ 12.1-17-07(1), 19-03.1-23(1), (7) (2016).

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to that score. We address these issues be low. But before we address Gustafson’s two
claims, we consider the state’s argument that we should deny Gustafson the relief he seeks
in a direct appeal and require him to either seek relief by filing a petition for postconviction
relief or move to correct his sentence in the district court.
I. Gustafson’s appe al may be considered on its merits.

The state urges us to deny Gustafson’s re quested relief and instead instruct him to
file a petition for postconviction relief to withdraw his guilty pl ea. It is improper to hear
his appeal now, the state contends, because Gustafson did not raise these issues before the
district court and granting his request to mo dify his sentence would contradict the plea
agreement between Gustafson and the state. The state’s ar gument presents a question of
interpretation of a procedural rule and a statute, which we review de novo. State v. Coles,
862 N.W.2d 477, 479 (Minn. 2015).
Our de novo review begins with an overvi ew of the methods available to a defendant
to appeal a conviction. The first is a sentencing appeal under Minnesota Rule of Criminal
Procedure 28.05. State v. Thomas, 371 N.W.2d 533, 534 (Minn. 1985). The second is a
direct appeal from the district court’s fina l judgment of conviction under Minnesota Rule
of Criminal Procedure 28.02, subdivision 2. Id. at 535. Third, after the time for filing a
direct appeal has passed, a defendant may file a petition for postconviction relief, which is
a broader statutory remedy. Id.; see also Minn. Stat. § 590.01 (2020). Finally, the district
court may “at any time correct a sentence not authorized by law.” Minn. R. Crim. P. 27.03,
subd. 9.

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Here, Gustafson seeks review via a direct appeal pursuant to rule 28.02,
subdivision 2(3), which allows defendants to “appeal as of right from any sentence
imposed or stayed in a felony case.” Defend ants may use this method to challenge their
sentence even when other avenues of appeal may be available, because “a defendant cannot
forfeit appellate review of his criminal history score.” State v. Scovel, 916 N.W.2d 550,
553 n.5 (Minn. 2018) (quoting State v. Maurstad, 733 N.W.2d 141, 148 (Minn. 2007)); see
also State v. Strobel, 921 N.W.2d 563, 573 n.1 (Minn. App. 2018) (“[A] sentence based on
an incorrect criminal-history sc ore is an illegal sentence th at may be corrected on direct
appeal, regardless of whether the defendant objected to the score at sentencing.”), aff’d,
932 N.W.2d 303 (Minn. 2019). As such, ev en though Gustafson did not challenge his
criminal-history score in district court, or via a petition for postconviction relief, he has not
waived appellate review of this issue, and we may consider the merits of his argument here.
The state attempts to persuade us othe rwise, arguing that because Gustafson seeks
to “unilaterally” modify the plea agreement he must challenge his sentence via a petition
for postconviction relief, not a rule 28.02 dire ct appeal. We are not persuaded. As
explained above, Minnesota appellate courts have repeatedly concluded that defendants
may seek a direct appeal of their sentence under rule 28.02, as Gustafson does here. Scovel,
916 N.W.2d at 553 n.5; Maurstad, 733 N.W.2d at 147; Strobel, 921 N.W.2d at 573 n.1.
Nor are we persuaded by the state’s substantive claim. Typically, where a
defendant’s challenge to his or her sentence implicates a plea ag reement, a petition for
postconviction relief is the proper avenue for review. Coles, 862 N.W.2d at 482. An appeal
to reduce a sentence implicates a plea agreem ent when, if granted, the reduction would

7
disrupt the balance of the plea bargain struck by the defendant and the state. Id. at 481-82.
But the cases the state relies on to urge us to apply this general rule are distinguishable
from Gustafson’s case.
In Johnson v. State , the supreme court determined that because reducing the
defendant’s sentence would allow him to retain the benefits of the plea deal—dismissal of
a kidnapping charge and the avoidance of a life sentence—but depriv e the state of its
benefit—no less than a 30-year sentence—the defendant’s challenge to his sentence was
too integral to his plea agreement to allow for relief under rule 27 .03. 877 N.W.2d 776,
779 (Minn. 2016). And in Coles, because the defendant’s sentence and conviction “were
part of a negotiated package in which both [defendant] and the state received a significant
benefit,” the supreme court held that defendant’s challenge implicated the plea agreement
and should be properly considered as a petition for postconvic tion relief, not a rule 27.03
motion to correct a sentence. 862 N.W.2d at 481-82.
In State v. Lewis , the supreme court addressed whet her a district court may, on
remand, reconsider the conviction portion of a pl ea agreement if it fi nds that there is no
support for a departure from the sentencing guidelines for the sentencing component of the
plea agreement. 656 N.W.2d 535, 538-39 (M inn. 2003). The supreme court held that
because the conviction and sent ence in such cases are interrelated, a district court
“may consider motions to vacate the conviction and the plea agreement.” Id. As for
State v. DeZeler, the question before the court in th at case was whether a defendant may
withdraw his or her guilty plea after the district court rejects the proposed sentence in the
plea agreement. 427 N.W.2d 231, 234-35 (Minn. 1988). Finally, in State v. Misquadace,

8
we remanded to the district court—rather than modifying the defendant’s sentence—
because the plea agreement wa s “intricate.” 629 N.W.2d 487 , 491 (Minn. App. 2001),
aff’d, 644 N.W.2d 65 (Minn. 2002).
The facts in this case are distinct from thos e cases cited by the state. Here, Gustafson
does not challenge the underlying validity of his conviction. The plea agreement signed
by Gustafson provided that he would plead guilty to third-degree possession of a controlled
substance and “receive[] a guideline sentence, high end of the box.” The state’s position
on sentencing was the same at the plea hear ing: “So the offer th at I’ve made to the
defendant is a plea to Count 2, dismiss the remaining counts at sentencing. The defendant
would receive a sentence at the top of the applicable guideline box, which is 46 months.”
(Emphasis added.)
Given these statements regard ing the plea agreement, we discern that the parties did
not explicitly agree to a 46-month sentence. Rather, the agreemen t was for a guidelines
sentence as determined by Gustafson’s criminal-history score. As such, while modification
of his criminal-history score might change th e exact sentence he would receive, it would
not change the foundation of the plea agreement. Accordingly, Gustafson’s challenge does
not implicate his plea agreement with the state.
In sum, because Gustafson challenges his criminal-history score pursuant to
rule 28.02, we may consider the merits of hi s claim. And, despit e the state’s arguments
otherwise, we need not consid er whether Gustafson’s challe nge to his criminal-history
score implicates the plea agre ement. Moreover, Gustafson’s request does not in fact
implicate the plea agreement. If granted, the request wo uld only modify Gustafson’s

9
sentence and would not result in the state losing its benefit from entering into the plea deal.
The state may still seek a top-of-the-box senten ce. The only change to the state’s benefit
would be which guideline box to apply.
II. The district court erred by assignin g Gustafson a crimina l-history score of
three.

Gustafson further alleges that the di strict court erred by assigning him a
criminal-history score of th ree. Because the Minnesota Sentencing Guidelines were
amended in 2019, Gustafson ur ges us to apply the ameliora tion doctrine to mitigate his
sentence in accordance with the amended guidelines. He al so argues that the state failed
to prove that his prior convictions from North Dakota could be included in his
criminal-history score. Because interpretation of the Minnesota Sentencing Guidelines is
a question of law, we apply a de novo standard of review. Scovel, 916 N.W.2d at 554.
Gustafson’s Custody-Status Point
Gustafson argues that we should apply th e amelioration doctrine to his sentence
because the 2019 amendments to the Minnesota Sentencing Gu idelines, if applied to his
case, would result in a reduced sentence. Th e amelioration doctrine establishes that an
amendment to a statute applies to an offense committed before the effective date of the
amendment if: (1) there is no clear legislative intent to abrogate the amelioration doctrine;
(2) the amendment mitigates the punishment; and (3) final judgment had not been entered
before the effective date of the amendment. State v. Kirby , 899 N.W.2d 485, 490
(Minn. 2017). Because there is no disput e that the 2019 amendments mitigated

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Gustafson’s punishment or that final j udgment had not been entered before the
amendments went into effect, we focus only on the first element.
Gustafson was initially charged, convicte d, and sentenced according to the 2018
Minnesota Sentencing Guidelines. Under th ose guidelines, one cust ody-status point was
assigned where: (1) the defendant was on proba tion at the time of the offense; (2) after
entry of a guilty plea, guilty verdict, or conviction; and (3) for a felony, extended juvenile
jurisdiction conviction, non-traffic gross mi sdemeanor, gross misdemeanor driving while
impaired, refusal to submit to a chemical test, reckless driving, or targeted misdemeanor.
Minn. Sent. Guidelines 2.B.2a (2018). But in 2019, modification of the guidelines resulted
in the assignment of one full custody-stat us point only when: (1) the defendant was on
probation at the time of the o ffense; (2) after entry of a gu ilty plea, guilty verdict, or
conviction; and (3) for any felony other than a felony with a seve rity level of 1, 2, D1, or
D2. Minn. Sent. Guidelines 2.B.2.a (2019 ). In any other case, only one-half of a
custody-status point would be assigned. Id. Under the 2019 guidelines, Gustafson would
only be assigned one-half point, be cause he was on probation for a misdemeanor at the
time of his offense, not a felony.
To clearly abrogate the amelioration doctri ne, the legislature must make an express
statement, such as: “crimes committed prior to the effective date of this act are not affected
by its provisions.” Kirby, 899 N.W.2d at 491, 499. As we held in State v. Robinette, the
legislature did not do so with regard to the 2019 amendments to the calculation of
custody-status points. 944 N.W.2d 242, 249-50 (Minn. App. 2020), review granted (Minn.
June 30, 2020). Without such a clear statement of intent, we assume that the amelioration

11
doctrine applies. Id. at 249 n.1. Accordingly, Gustafson is entitled to resentencing under
the 2019 guidelines for a reduced custody-status score of one-half point.
Gustafson’s Prior Convictions in North Dakota
Gustafson also claims that the district c ourt erred by assigning him two felony points
for his prior North Dakota convictions beca use the state failed to show that those
convictions could properly be considered as prior convictions. In conducting our de novo
review, we first look to the language of the sentencing guidelines to determine when prior
out-of-state convictions may be included in a defendant’s criminal-history score. Scovel,
916 N.W.2d at 554-55.
Under the Minnesota Sentencing Guide lines, prior convictions from out-of-state
jurisdictions may be included in a defendant’s crim inal-history score only if the offense
“would both be defined as a felony in Minnesota, and the offender received a sentence that
in Minnesota would be a felony-level sentence. ” Minn. Sent. Guidelines 2.B.5.b (2018).
The state bears the burden of proof to “estab lish 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 felony in Minnesota.” State v. Maley , 714 N.W.2d 708, 711 (Minn.
App. 2006). If the state fails to meet its burden of proof and the defendant does not object
to the calculation of his or he r criminal-history score, we remand to allow the state “to
further develop the sentencing r ecord so that the district court can appropriately make its
determination.” State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008), review denied
(Minn. July 15, 2008).

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Here, the state failed to meet its burden. The state did not provide any evidence to
show that Gustafson’s prior convictions would be defined as felonies in Minnesota or that
Gustafson received felony-level sentences for those convictions. Minn. Sent. Guidelines
2.B.5.b. And our review of the record show s that the North Dakota convictions are not
equivalent to their Minnesota counterparts.
Gustafson was previously convicted of manufacture of a controlled substance and
the unlawful possession of methamphetamine. N.D. Cent. Code § 19-03.1-23(1), (7).
Under North Dakota law, the manufactur e of a controlled substance includes
manufacturing, delivering, possessing with th e intent to manufactu re or deliver, and
delivering, distributing, or dispensing via the internet a controlled substance (in this case,
methamphetamine). Id. at (1). Possessing the precursor ingredients to manufacture
methamphetamine also violates the statute. State v. Stensaker , 725 N.W.2d 883, 890
(N.D. 2007). But in Minnesota, the manufacture of methamphetamine and the possession
of the precursors to manufacture methamphetamine are separate crimes. Under Minnesota
Statutes section 152. 021, subdivision 2a (2018), “a pe rson is guilty of a controlled
substance crime in the first degree if the person manufactures any amount of
methamphetamine.” And under Minnesota Stat utes section 152.0262 , subdivision 1(a)
(2018), “a person is guilty of a crime if the person possesses any chemical reagents or
precursors with the intent to manufacture methamphetamine.”
North Dakota and Minnesota also differ in their punishment of possession crimes.
In North Dakota, a person is guilty of a class A misdemeanor for possessing any amount
of methamphetamine. N.D. Ce nt. Code § 19-03.1-23(7). Bu t in Minnesota, the severity

13
of the offense depends on the weight of the methamphetamine in the person’s possession
and whether they have been previously found with methamphetamine in their possession.
A person is guilty of a first-degree controlle d substance crime if they unlawfully possess
“one or more mixtures of a total wei ght of 25 grams or more” containing
methamphetamine. Minn. Stat. § 152.021, su bd. 2(a)(1). But a person is guilty of a
third-degree controlled substance crime if they unlawfully possess “on one or more
occasions within a 90-day period . . . one or mo re mixtures of a total weight of ten grams
or more containing a narcotic drug other than heroin.” Minn. Stat. § 152.023, subd. 2(a)(1).
In short, North Dakota criminal stat utes for the manufacture and possession of
methamphetamine cover a much broader ra nge of conduct than their Minnesota
counterparts. As such, Gustafson’s actions in North Dakota may not meet the standard to
be included in his criminal-his tory score. Minn. Sent. Guid elines 2.B.5.b. Because the
state did not produce any evidence to support its assertion that Gustafson’s prior North
Dakota convictions could be included in his criminal-history score, the district court erred
in assigning Gustafson two-and-a-half felony points for those conv ictions. But because
there is no record for us to review to determine whether Gustafson’s criminal-history score
was correct and Gustafson did not object to the calculation of his criminal-history score in
district court, the state must have the opportunity “to further develop the sentencing record
so that the district court can appr opriately make its determination.” Outlaw,
748 N.W.2d at 356.
In sum, Gustafson’s criminal-history scor e must be modified to accurately reflect
both the 2019 sentencing guidelines amendments and the appropriate felony points for his

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prior convictions from North Dakota. The dist rict court erred by sentencing Gustafson
based on his assumed criminal -history score of three with out confirming the validity of
that score. As such, we reverse and remand to allow the state the opportunity to further
develop the record and for subsequent resentencing as appropriate. Id.
Reversed and remanded.