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This opinion is nonprecedential except as provided by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
A20-0946

State of Minnesota,
Respondent,

vs.

Donald Albert Strobel,
Appellant.

Filed February 22, 2021
Affirmed
Cochran, Judge

Wabasha County District Court
File No. 79-CR-16-1112

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

Karen Kelly, Wabasha County Attorney, Wabasha, Minnesota (for respondent)

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

Considered and decided by Slieter, Presiding Judge; Jesson, Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Appellant was convicted of a first-degree controlled-substance crime and sentenced
to 115-months’ imprisonment. This court reversed th e sentence and remanded for
resentencing because the state did not esta blish that a prior conviction included in

2
appellant’s criminal-history score as a felony was properly classified as such.
State v. Strobel (Strobel I), 921 N.W.2d 563, 577 (Minn. App. 2018), aff’d 932 N.W.2d303
(Minn. 2019). The supreme court affirmed. State v. Strobel (Strobel II), 932 N.W.2d 303,
310 (Minn. 2019).
This appeal arises from the district court’s decision to again impose a 115-month
sentence after determining that the state met its burden on remand to prove that the prior
offense constituted a felony. Appellant argues that his current sentence must be reversed
because the district court (1) erred by allowing the state time to submit additional evidence
after an initial hearing on resentencing, (2) violated his Sixt h Amendment rights by
increasing the sentencing range based on judicial fact-finding, and (3) abused its discretion
by concluding that the state proved that his prior conviction is a felony. We conclude that
the district court did not err by permitting the state to submit additional evidence, did not
engage in impermissible fact finding, and did not abuse its disc retion in reaching its
conclusion that the state proved that appellant’s prior conviction was a felony. Therefore,
we affirm.
FACTS
In 2017, a jury found Strobel guilty of first-degree sale of methamphetamine and
second-degree possession of methamphetamine. The district court sentenced Strobel to
concurrent prison terms of 115 months and 108 months for th e first- and second-degree
convictions, respectively. The 115-month sentence was the presumptive guidelines
sentence based on a criminal-history score of five, as indicated in a sentencing worksheet.
The score included a one-half felony point for a 2012 fifth- degree controlled-substance-

3
possession offense. Had the one-half point not been assigned for the 2012 offense, Strobel
would have had a total criminal-history score of four, which would have resulted in a lower
presumptive sentence of 105 months. Strobel I, 921 N.W.2d at 573-74; see Minn. Sent.
Guidelines 4.C (2016) (showing a presumptive sentence of 105 months for a severity level
D8 offense with a criminal-history score of four).
Strobel appealed from his sentence for the first-degree offense, 1 arguing that the
state did not prove that his 2012 offense should be classified as a felony when calculating
his criminal-history score. Strobel I, 921 N.W.2d at 574. He relied on the Drug Sentencing
Reform Act (DSRA), wh ich made substantial changes to Minnesota’s drug statutes. Id.
He maintained that the state had the burde n to show that his 2012 offense would be
considered a felony under the changes made by the DSRA, which it failed to do. Id. at
575.
We agreed with Strobel. Id. at 577. We first noted that a “defendant’s prior offense
may be classified as a felony only if the prior offense would constitute a felony under
Minnesota law at the time the current offense was committed.” Id. a t 5 7 4 . W e t h e n
determined that Strobel committed the current, first-degree offense after the effective date
of the DSRA, which created a new categor y of fifth-degree controlled-substance-
possession crime that is punish able as a gross misdemeanor. Id. Under the DSRA
amendment, a fifth-degree controlled-substance crime is a gross misdemeanor, as opposed

1 Strobel has not challenged the sentence fo r his second-degree co nviction because the
addition or absence of one-half felony point does not change his presumptive sentence for
that offense. Strobel I, 921 N.W.2d at 574 n.3.

4
to a felony, where a person wh o does not have a prior c ontrolled-substance conviction
possessed “less than 0.25 grams or one dosage unit or less” of a drug other than heroin, or
“less than 0.05 grams of heroin.” Minn. Stat. § 152.025, subd. 4(a) (2018). Accordingly,
to show that Strobel’s 2012 fifth-degree controlled-substance-possession offense was a
felony under the DSRA amen dment, rather than a gro ss misdemeanor, the state was
required to present evidence about the type and amount of drug that Strobel had possessed.
Strobel I, 921 N.W.2d at 574-77. Because the state failed to do so, we concluded that the
district court erred by assigning the one-hal f felony point for Strobel’s 2012 fifth-degree
possession conviction in his cr iminal-history score, and we remanded the case “with
instructions permitting the state to develop th e record regarding th e type and amount of
controlled substance underlying Strobel’s 2012 conviction.” Id. at 577. The supreme court
affirmed our decision. Strobel II, 832 N.W.2d at 310.
In January 2020, the district court cond ucted a new sentencing hearing. At the
hearing, the state first made a legal argument that it need only establish the place and date
of Strobel’s 2012 offense to prove that it is a felony. In the alternative, the state provided
a copy of the criminal complaint underlying Strobel’s 2012 conviction, which showed that
Strobel was charged with two counts of fift h-degree possession. The complaint alleged
that during a search of Strobel’s residence, officers found more than 42.5 grams of
marijuana. The complaint also alleged th at officers found an unknown crystal-like
substance weighing 12.52 ounces in the residence. The stat e asserted that because the
complaint showed the type and amount of drugs that Strobel had possessed, the complaint
satisfied the state’s burden of proof. The di strict court did not accept the state’s legal

5
argument and declined to sentence Strobel on the basis of the complaint alone. Instead,
the court directed the state to file a transcript of the plea hearing in the 2012 case so that
the court could “look at the factual basis to see really what Mr. Strobel admitted to”
regarding the type and amount of controlled substance he had possessed. The district court
also ordered the parties to f ile written arguments. Defense counsel objected to the court
allowing the state additional time to obtain the plea-hearing transcript.
The state then filed the plea-hearing transc ript from the 2012 case. The transcript
shows that Strobel entered an Alford plea to the charge. The transcript states the following,
in relevant part:
Prosecutor: And, finally, in file ending in 2015, that’s the
Controlled Substance file, again, can the judge accept this
Complaint for a fact basis on that one as well?

Strobel: Yes.

Prosecutor: Now understanding the Alford plea on this one as
well, if the State were to pr esent evidence from officers from
September 14th of 2011 and they were to testify that they found
you in possession of a controlle d substance, I believe it was
marijuana weighing over 42.5 grams, would a jury have a
strong probability of convicting you on that offense?

Defense counsel: If I can inquire?

Defense counsel: You would agree that—that the information
contained in the Complaint, it’ll allege that you had a
controlled substance in your residence?

Strobel: Right.

Defense counsel: And that substance was either
methamphetamine or—or some drug that is a schedule narcotic
that you weren’t allowed to have—

6
Strobel: Yeah.

Defense counsel: —correct? A nd because of that you would
agree that it was in your house? That’s what they can consider
constructive possession?

Strobel: Okay.

Defense counsel: And with that information contained in the
Complaint and the police reports, and if that was presented to
a jury, there would be a good likelihood that you would be
found guilty?

Strobel: Yes.
After reviewing the plea-hearing transcri pt and complaint, the district court
concluded in an order dated March 2020 that “[t]he state has met its burden on remand to
show the weight and type of controlled s ubstance associated w ith [Strobel’s] 2012
conviction for fifth-degree controlled-substance possession.” The district court noted that
the “complaint indicates that ‘more than 42.5 grams’ of marijuana and an unknown
crystal-like substance weighing 12.52 ounces was found in [Strobel’s] possession.” It
determined that Strobel “did not make a responsive admission” about possessing more than
42.5 grams of marijuana, but “did, however, make a responsive admission . . . to illegally
possessing the drugs (methamphetamine or some drug that is a schedule narcotic) described
in the complaint.” The district court acc ordingly concluded that the complaint and
plea-hearing transcript “establish that [Str obel] possessed more than .25 grams of a
controlled substance other than heroin” and that the 2012 c onviction “is classified as a
felony.” It therefore determ ined that Strobel’s criminal -history score was five, as

7
previously determined, and sentenced Strobel to 115 months’ imprisonment with credit for
time served.
Following the district court’s order, Str obel moved for reconsideration. He argued
that the district court shou ld reconsider his prior motion for a downward dispositional
departure and that the court failed to comply with certain procedural rules at the sentencing
hearing. The district court then held a se cond sentencing hearing, at which it denied
Strobel’s motion and reaffirmed his 115-month sentence. Strobel appeals.
DECISION
Strobel raises three alternative arguments on appeal. He argues that this court must
reverse and remand his case for resentencing on his first-degree conviction because the
district court (1) erred by continuing the senten cing hearing to allow the state to file the
2012 plea-hearing transcript, (2) violated hi s Sixth Amendment right to a jury trial by
engaging in impermissible judicial fact-fin ding, and (3) abused its discretion by finding
that the state had met its burden to prove that Strobel’s 2012 fifth-degree
controlled-substance conviction is a felony offense under curre nt legal definitions. We
address these arguments in turn below.
I. The district court did not err by granti ng the state additional time to file the
2012 plea-hearing transcript.

Strobel argues that the district court erred by “abandoning its role as a neutral
magistrate” when it declined to determine Strobel’s criminal -history score at the initial
sentencing hearing on remand a nd instead directed the stat e to submit the plea-hearing
transcript. We are not persuaded.

8
Criminal defendants have a constitutional right to a fair and impartial judge.
Cuypers v. State , 711 N.W.2d 100, 104 (Minn. 2006 ). Judges have the “pervasive
responsibility” to avoid “both the reality a nd the appearance of any impropriety.”
State v. Mims, 235 N.W.2d 381, 387 (Minn. 1975). “A judge’s conduct mu st be fair to
both sides.” State v. Dorsey , 701 N.W.2d 238, 2 50 (Minn. 2005) (quotation omitted).
Deprivation of an impartial judge is a constitutional issue that we review de novo. Id. at
249. “[W]hen a defendant has been deprived of an impartial judge, automatic reversal is
required.” Id. at 253. Judicial bias is a structural error that is not subject to harmless error
review. Id. at 252-53.
In Strobel I, we made clear that the state had the burden on remand to establish that
Strobel’s 2012 fifth-degree possession offens e would constitute a felony, not a gross
misdemeanor, under the DSRA-amended version of the fift h-degree possession statute.
921 N.W.2d at 574, 577. We al so instructed that the district court allow “the state to
develop the record regarding the type an d amount of controlled substance underlying
Strobel’s 2012 conviction.” Id. at 577.
At the initial hearing on remand, the state presented only the complaint underlying
Strobel’s 2012 offense as evidence of the type and amount of drug involved in that offense.
Defense counsel then argued that the complaint was insufficient to meet the state’s burden
of proof because the complaint merely contained “allegations.” Defense counsel asserted
that “without either some sort of transcript from that ca se proving . . . what type of drugs
[Strobel] pled to possessing, that any proof offe red is insufficient to establish that.” The
district court responded to defense counsel’s argument by asking if proof of the amount

9
and type of drug possessed would “require a review of the transcript at the time the
defendant pled guilty to see what factual basis was put on the record.” Defense counsel
responded affirmatively. The district cour t then stated that it was not comfortable
sentencing Strobel on the basis of the complaint alone. The court stated that it wanted “to
look at the factual basis to se e really what Mr. Strobel adm itted to” and directed the state
to file a transcript of the plea hearing in the 2012 case. The court also ordered both parties
to file written arguments to be due two we eks after the state submitted the plea-hearing
transcript.
Strobel argues on appeal that the “court re lieved the state of its burden, and stopped
functioning as a neutral magistrate” when it pe rmitted the state additional time to file the
plea-hearing transcript. The record does not support this assertion for several reasons.
First, directing the state to file the plea-hear ing transcript did not relieve the state of its
burden to prove that Strobe l’s 2012 conviction was a felony under the DSRA-amended
version of the fifth-degree possession statute—the burden of proof remained on the state,
which the district court expressly recognized in its order. Allowing the state extra time to
meet its burden of proof did not relieve the state of that burden.
Furthermore, the district court did not abdi cate its role as a neutral adjudicator when
it permitted the state to submit the plea-hearing transcript. The court ordered the state to
file the transcript following defense counsel’s own suggestion that “some sort of transcript”
from the 2012 case would be required to prove the amount and type of drugs that Strobel
had possessed. Considering the basis for the 2012 plea does not constitute biased conduct.
Moreover, the court ordered both parties to submit written ar guments and gave them two

10
weeks to file those arguments following subm ission of the plea-hearing transcript. The
court then considered those arguments before imposing the sentence. We do not discern
judicial bias that would require reversal.
Strobel cites multiple cases in an attempt to support his argumen t that the district
court’s conduct was biased. However, this cas e is a far cry from the cases relied on by
Strobel. See State v. Schlienz, 774 N.W.2d 361, 366-67 (Mi nn. 2009) (improper ex parte
communication); Dorsey , 701 N.W.2d at 245 (independen t investigation of facts);
Hansen v. St. Paul City Ry. Co. , 43 N.W.2d 260, 264 (Minn. 1950) (judge “unduly
criticize[d] counsel in the presen ce of the jury”). And we ar e not aware of any case that
holds that the type of conduct at issue here amounts to structural error. We therefore
conclude that the district court did not commit reversible error by granting the state
additional time to produce the 2012 plea-hearing transcript.
II. The district court’s sentencing decisi on did not involve impermissible judicial
fact-finding in violation of the Sixth Amendment.

Strobel next argues that the district cour t’s sentence was made in contravention of
the requirements of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and the
Sixth Amendment because it was based on impermissible judicial fact-finding. Whether a
Blakely error occurred is a constitutional questio n that this court reviews de novo.
State v. Dettman, 719 N.W.2d 644, 648-49 (Minn. 2006).
In Blakely, the U.S. Supreme Court applied the rule from Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2 000), that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

11
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 542 U.S.
at 301, 124 S. Ct. at 2536 (quotation omitte d). Minnesota courts have “applied these
principles to limit a sentencing court’s author ity to impose a sentence that is outside of
the presumptive range of the Minn esota Sentencing Guidelines.” State v. Her ,
862 N.W.2d 692, 695 (Minn. 2015). Acco rdingly, an upward departure from the
presumptive sentence that is based on fact-findi ng made by the district court, as opposed
to facts reflected in the jury verdict or admitted by the defendant, violates the defendant’s
Sixth Amendment right to trial by jury. Id. Because criminal-history points have the effect
of increasing a defendant’s presumptive sentence, this court has recognized that district
courts may not engage in impermissible fa ct-finding when assigning criminal-history
points based on the defendant’s prior convictions. State v. Edwards , 900 N.W.2d 722,
728-731 (Minn. App. 2017) (applying Blakely to a district court’s assignment of
criminal-history points because assigning the points “i ncreased appellant’s presumptive
sentence”).
Minnesota and federal case law provide an exception to the Blakely rule for prior
convictions. Her, 862 N.W.2d at 697-98 (citing Apprendi v. New Jersey, 530 U.S. at 490,
120 S. Ct. at 2362). Under the prior-conviction exception, a court is permitted to “find the
existence of a prior conviction when sentencing a defendant so long as the prior conviction
is not itself an element of the current offense.” Id. “The exception is justified in part by
the certainty of procedural safeguards atta ched to any ‘fact’ of prior conviction.” Id.
(quotation omitted). The prior-conviction exception is narrow but “the Minnesota Supreme
Court has held that it is not strictly limited to whether a prior conviction existed.” Edwards,

12
900 N.W.2d at 729 (citing State v. McFee, 721 N.W.2d 607, 618 (Minn. 2006) (holding
that verifying a juven ile had been adjudicated delinquent does not require a jury), and
State v. Allen, 706 N.W.2d 40, 48 (Minn. 2005) (holding that finding that a defendant was
on probation at the time of the prior conviction does not requi re a jury)). And this court
has held that where a determination relating to a prior conviction involves a legal question
rather than a factual question, that determination does not run afoul of Blakely. Id. at 731.
Here, Strobel argues that the district court violated the proscriptions of Blakely when
it concluded that his 2012 fifth-degree c ontrolled-substance-possession conviction was a
felony and accordingly assigned him a one-hal f felony point for th e conviction. He
contends that the district court went beyond recognizing the “fact of the prior conviction,”
and engaged in fact-finding outside the bounds of the prior-conviction exception, when it
determined that the state met its burden to show the type and amount of substance involved
in his 2012 conviction. We disagree that the district court engaged in impermissible
fact-finding. Rather, the district court’s order reflects that the district court made a legal
determination based on the undisputed facts in the record.
We reach this conclusion, in large pa rt, because Strobel’s 2012 conviction was
based on an Alford plea. A defendant entering an Alford plea maintains his innocence but
admits that the state has suffi cient evidence to convict him . State v. Theis , 742 N.W.2d
643, 647 (Minn. 2007) (citing North Carolina v. Alford, 400 U.S. 25, 38, 91 S. Ct. 160,
168 (1970)). Here, as reflected in the 2012 plea-hearing transcript, Strobel expressly
accepted the complaint in the 2012 case as the factual basis for his Alford plea and admitted
that the complaint set forth su fficient evidence to convict him of the charged fifth-degree

13
controlled-substance-possession offense. In its sentencing order, the district court
concluded that Strobel’s 201 2 fifth-degree possession offens e was a felony based on the
complaint and the plea-hearing tr anscript. The district court noted that the “[c]omplaint
and transcript establish that [Strobel] pos sessed more than .25 grams of a controlled
substance other than heroin.” See Minn. Stat. § 152.025, subd. 4(a). No fact-finding was
necessary because Strobel entered an Alford plea and did not dispute any of the information
in the complaint. Case law permits courts to review criminal complaints and plea
documents to determine the type of offense involved without violating Blakely or Apprendi.
See Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 1257 (2005) (holding that
a court determining the character of a prior offense is “generally limited to examining the
statutory definition, charging document, writte n plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the defendant
assented”). We conclude that the district court’s examination of the documents underlying
Strobel’s Alford plea fits squarely within the prior-conviction exception to Blakely.
Our conclusion is reinforced by comment s made by Strobel’s own counsel in a
February 2020 filing entitled “M emorandum re: Criminal History.” This brief was filed
after the state submitted the plea- hearing transcript and before the district court issued its
March 2020 sentencing order. In the brief, Strobel’s attorney stated “that by providing [the
plea-hearing] transcript, the [s]tate has now conclusively established Mr. Strobel pled
guilty to a Controlled Su bstance Crime in the 5 th degree—and that this guilty plea would
still be a felony under Minnesota law post Drug Sentencing Refo rm Act.” (Emphasis
added.) Strobel’s attorney then went on to argue that the plea-hearing transcript should not

14
be considered in determining whether the state met its burden of proof on remand because
the state did not provide the transcript at the initial sentencing hearing on remand. But
Strobel’s attorney did not claim that ther e was any fact question regarding whether
Strobel’s 2012 offense constitutes a felony or that the question needed to be determined by
a jury.
On appeal, to support his argument that the district court engaged in fact-finding in
violation of Blakely, Strobel relies primarily on two U. S. Supreme Court cases. These
cases provide that a court, acting in accordan ce with the prior-conviction exception, “can
do no more, consistent with the Sixth Amendment, than determine what crime, with what
elements, the defendant was convicted of.” Mathis v. United States , 136 S. Ct. 2243,
2252 (2016); see also Descamps v. United States , 570 U.S. 254, 270, 133 S. Ct. 2276,
2288 (2013) (stating that because a defendant entering a guilty plea “waives his right to a
jury determination of only that offense’s elements[,] whatever he says, or fails to say, about
superfluous facts cannot licen se a later sentencing court to impose extra punishment”).
Strobel contends that because “[t]he amount an d type of substance were not elements of
Strobel’s 2012 offense,” the district court engaged in impermissible fact-finding by relying
on that information in the comp laint and plea transcript to de termine that the offense is a
felony under the current statutory definition. But, unlike this case, Mathis and Descamps
did not involve an Alford plea. See Mathis , 136 S. Ct. at 2250 (regular guilty plea);
Descamps, 570 U.S. at 258, 295, 133 S. Ct. at 2282, 2303 (regular guilty plea).
Accordingly, those cases are not controlling here.

15
In sum, we conclude that because Strobel entered an Alford plea in the 2012 case,
the district court did not engage in any im permissible fact-finding when it reviewed the
2012 complaint and plea-hearing transcript to determine as a matter of law that the state
met its burden to prove that Strobel’s prior offense was a felony under the current statutory
definition.
III. The district court did not abuse its di scretion by concluding that the state met
its burden to prove that Strobel’s 2012 conviction was a felony.

Strobel next contends that the state failed to meet its burden to show that his 2012
conviction was a felony under the DSRA-amende d version of the fifth-degree possession
statute. Strobel argues that, because “he entered an Alford plea, which does not involve an
admission of guilt,” the district court coul d not conclude from the 2012 complaint and
plea-hearing transcript that he possessed at least 0.25 grams of a non-heroin controlled
substance.
The district court’s determination of a de fendant’s criminal history score will not be
reversed absent an abuse of discretion. State v. Stillday , 646 N.W.2d 557, 561 (Minn.
App. 2002), review denied (Minn. Aug. 20, 2002). We discern no abuse of discretion here.
As stated above, a defendant taking an Alford plea maintains his innocence but
admits that the state has suffici ent evidence to convict him. Theis, 742 N.W.2d at 647
(citing Alford, 400 U.S. at 38, 91 S. Ct . at 168). The supreme co urt has stated that “[a]
conviction based upon an Alford plea generally carries the same penalties and collateral
consequences as a conve ntional guilty plea.” Doe 136 v. Liebsch , 872 N.W.2d 875,
880 (Minn. 2015) (citing Armenakes v. State , 821 A.2d 239, 242 (R.I. 2003), for the

16
proposition that “an Alford plea ‘may be used later for a ny legitimate purpose, including
sentencing factors and enhancement’”).
At the 2012 plea hearing, Strobel expressl y permitted the complain t in the case to
be used as the factual basis for his Alford plea. By doing so, Strobel acknowledged that
the complaint set forth suffi cient evidence to convict him of the fifth-degree
controlled-substance-possession charge. That evidence included allegations that Strobel
possessed marijuana in an amount greater th an 42.5 grams and 12.52 ounces of another
controlled substance. The complaint theref ore alleged that Strobel possessed types and
amounts of substances that satisfy the current statutory definition of a felony fifth-degree
controlled-substance-possession offense. See Minn. Stat. § 152.025, subds. 2(1), 4(a)-(b)
(2018). Because Strobel accepted the information in the complaint as the factual basis for
his Alford plea, the district court did not err by examining that document and concluding
that the state had met its burden to show that the offense is a felony based on the complaint
and the plea-hearing transcript. Moreover, given that Alford pleas are generally treated the
same as conventional guilty pl eas, there is no reason, for the purpose of assigning
criminal-history points on a pr ior offense, to treat an admi ssion of “sufficient evidence”
under an Alford plea any differently than the factual admissions that support a conventional
guilty plea. And, as discussed above, Strobel’s counsel acknowledged to the district court
that the complaint and plea-hear ing transcript “conclusively established” that Strobel’s
2012 offense was a felony under the DSRA-amended version of the fifth-degree possession
statute. Accordingly, we conclude that the district court did not err by concluding that the

17
state met its burden to prove that Strobel’s 2012 conviction was a felony under current
legal definitions.
Affirmed.