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This opinion is nonprecedential except as provided by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
A20-1605

State of Minnesota,
Respondent,

vs.

Andrew Paul Holm,
Appellant.

Filed June 21, 2021
Affirmed in part, reversed in part, and remanded
Florey, Judge

Faribault County District Court
File No. 22-CR-19-474

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

Kathryn M. Karjala-Curtis, Faribault County Attorney, Blue Earth, Minnesota (for
respondent)

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

Considered and decided by Bjorkman, Presiding Judge; Jesson, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
FLOREY, Judge
In this appeal from an order revoking his probation, appellant argues that the district
court abused its discretion by failing to make adequate findings to support revocation .
Appellant also asserts he is entitled to resentencing based on amendments to the Minnesota
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Sentencing Guidelines that affect his criminal-history score. We affirm the revocation of
appellant’s probation but reverse and remand his sentence to the district court f or
resentencing in light of the amendments to the guidelines.
FACTS
On July 25, 2019, appellant Paul Andrew Holm, while driving a pickup truck, struck
and severely injured a motorcyclist. Although appellant was originally charged with being
under the influence of drugs or alcohol, he pleaded guilty to an amended charge of criminal
vehicular operation causing great bodily harm through gross negligence (speeding and
inattentive driving) in violation of Minn. Stat. § 609.2113, subd. 1(1) (2018). At the time
of the plea, appellant was already on probation for gross misdemeanor third-degree driving
while impaired/test refusal. The district court sentenced appellant to 51 months, based on
a criminal-history score of eight, and stayed the sentence on the condition that, among other
things, appellant serve 270 days in jail, make restitution, and remain law abiding. This
sentence was a downward dispositional departure from the guidelines sentence.
On May 6, 2020, a sheriff’s deputy stopped appellant, who was driving despite
having his license cancelled as inimical to public saf ety. During the ensuing incident,
appellant left the scene, fought with officers, an d spit on one officer. Appella nt was
charged with felony and gross misdemeanor assault, obstruction of legal process, and
misdemeanor fleeing a peace officer.
The Department of Corrections filed a probation-violation report on July 22, 2020.
The probation -violation report alleged multiple violations of the probation conditions
including (1) failure to abstain from drug/alcohol use; (2) refusal to submit to chemical
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testing; (3) failure to pay restitution; and (4) failure to remain law abiding, based on the
new charges from May 6. The probation officer who prepared the report concluded that
appellant was “unamenable to supervision” and “a risk to public safety.” The p robation
officer noted that appellant had been given a downward dispositional departure but he “has
never successfully completed a probation or supervised release term” and “[p]rior
rehabilitation efforts have failed and . . . there are no alternatives to revocation that would
protect public safety.” Finally, the probation officer opined that “the need for confinement
outweighs the policies favoring probation because confinement is necessary to protect the
public from further criminal activity and it would unduly depreciate the seriousness of the
violation if probation were not revoked.”
After a revocation hearing, t he district court found that appellant “violated clearly
established conditions of probation,” and that the violations were intentional and
inexcusable. The district court concluded that the policies favoring probation were
outweighed by the need for confinement and executed the stayed 51-month sentence. This
appeal follows.
DECISION
I. The district court’s findings were adequate to sustain its probation-revocation
decision.

We review the district court’s revocation decision for an abuse of discretion. State
v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2005), aff’d on other grounds, 883 N.W.2d
790 (Minn. 2016). The district court is required to support its decision with adequate
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findings; whether it has done so is a question of law subject to de novo review. State v.
Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
Before revoking probation, the district court must “(1) designate the specific
condition or conditions that were violated; (2) find that the violation was intentional or
inexcusable; and (3) find that the need for confinement outweighs the policies favoring
probation.” State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). The district court must
make adequate, fact -specific findings to enable review, and may not rely on a general
recitation of the Austin factors. Modtland, 695 N.W.2d at 607-08. In addressing the third
Austin factor, the district court should consider the original offense and the intervening
conduct that serves as a basis for revocation, and determine if “confinement is necessary
to protect the public from further criminal activity;” “the offender is in need of correctional
treatment [that] can most effectively be provided if he is confined;” or “it would unduly
depreciate the seriousness of the violation if probation were not revoked.” Id. at 607.
Appellant argues that the district court’s findings in support of the third Austin factor are
inadequate, and, therefore, the decision to execute his stayed sentence was an abuse of
discretion.
Specifically addressing the third Austin factor, the district court here focused on “a
combination of the original charges [ appellant] was convicted of and [his] intervening
conduct.” The district court noted that with his criminal-history score, he should have been
sentenced to prison, but he was “given the opportunity . . . to demonstrate . . . that [he]
could survive in soc iety without going to prison” and was sentenced to a downward
dispositional departure. Instead of taking advantage of the opportunity, the district court
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found that he “engaged in conduct that demonstrates that [he] pose[s] a risk of harm to the
public,” including driving after taking methamphetamine, fighting with the police, spitting
on one officer, and threatening another. The district court added that appellant engaged in
the conduct between staggered jail sentences, suggesting that appellant needs co rrectional
treatment, which is available only if he is confined. The district court found that appellant
was unamenable to probation and that appellant had never successfully completed a
probationary term. Finally, the court concluded that it “is compell ed in view of all these
facts and circumstances to find that it would unduly depreciate the seriousness of the
violations if [appellant’s] probation [was] not revoked.”
In Fleming, the district court considered, when analyzing the third Austin factor,
that Fleming had received a downward dispositional departure. 869 N.W.2d at 331. This
court described this as “a proper consideration.” Id. Like Fleming, appellant here had been
given an opportunity to prove that he could remain law abiding while on probation. At the
sentencing hearing , appellant had assured the district court that he intended to seek
chemical-dependency treatment and “stay away fr om all the negativity.” There is no
indication that appellant did so. During his revocation hearing, Fleming had also urged the
district court to consider alternative dispositions, including chemical -dependency
treatment. Id. But this court affirmed the district court’s decision not to consider such
alternatives when Fleming did not identify avail able placements in the probation -
revocation hearing. Id. at 331. Appellant did not suggest viable and concrete alternatives
to revocation of the sentence. And, like Fleming, appellant has an extensive history of
second chances that he has failed to use.
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The district court’s findings on the third Austin factor are adequate to sustain its
revocation decision.
II. Appellant’s sentence must be remanded for correction due to amendments to
the Minnesota Sentencing Guidelines.

“The court may at any time correct a sentence that is not authorized by law.” Minn.
R. Crim. P. 27.03, subd. 9. A sentence based on an incorrect criminal -history score is
illegal and, therefore, unauthorized. State v. Maurstad , 733 N.W.2d 141, 147 (Minn.
2007). A defendant canno t forfeit review of his criminal -history score. Id. at 148. We
review interpretations of the sentencing guidelines as a question of law subject to de novo
review. State v. Scovel , 916 N.W.2d 550, 555 (Minn. 2018). Appellant argues that his
criminal-history score was improperly calculated due to amendments to the Minnesota
Sentencing Guidelines that became effective on August 1, 2019.
The Minnesota Sentencing Guidelines Commission is required to submit
modifications to the guidelines by January 15 of each calendar year. Minn. Stat. § 244.09,
subd. 11 (2020). Each modification takes effect on August 1 of that calendar year unless
the legislature “by law provides otherwise.” Id. The commission made various
modifications to the guidelines in 2019; because there was no legislative action, these
modifications became effective on August 1, 2019.
A. Misdemeanor/Gross-misdemeanor units
Before August 1, 2019, targeted misdemeanors and gross misdemeanors each
received one unit for purposes of calculating a criminal -history score; four such units
equaled one criminal -history point. Minn. Sent. Guidelines 2.B.3.a (2018). But a
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misdemeanor or gross-misdemeanor conviction was subject to a decay factor; if more than
10 ye ars had elapsed between discharge from or expiration of the sentence and the
commission of the new offense, the conviction could not be counted as a unit. Minn. Sent.
Guidelines 2.B.3.e (2018). In the August 1, 2019 amendments to the guidelines, the decay
factor was changed so that a conviction could not be used as a unit if there was more than
ten years between the initial sentenc ing for the earlier conviction and the date of the new
offense. Minn. Sent. Guidelines 2.B.3.e (Supp. 2019).
The probation department gave appellant one unit for a gross -misdemeanor escape
conviction for which he was sentenced on January 22, 2009. Because the new offense
occurred on July 25, 2019, the earlier sentence had decayed under the amended guidelines;
under the previous guidelines, the unit would have been counted because his sentence was
not discharged until December 7, 2009. No partial points are given for fewer than four
units. Minn. Sent. Guidelines 2.B.3 (Supp. 2019). Because of the decayed conviction,
appellant had only three units. Therefore, appellant should not have been assigned a point
for prior-misdemeanor and gross-misdemeanor offenses.
B. Custody-status point
Before August 1, 2019, one point was added to a defendant’s criminal-history score
if, at the time the current offense was committed, he was under one of several custody
statuses following a guilty plea, verdict, or conviction for a felony or other enumerated
offenses including a gross -misdemeanor driving -while-impaired offense. Minn. Sent.
Guidelines 2.B.2.a (1)-(3) (2018). This guideline was amended effective August 1, 2019,
so that one point was added if the defendant was on parole or supervised release, but only
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one-half point was added if the defendant was on one of the other custody s tatuses,
including probation. Minn. Sent. Guidelines 2.B.2.a (1)-(3) (Supp. 2019). At the time he
committed the current offense, appellant was on probation from an earlier offense and,
therefore, only one -half point for custody status should have been ad ded to his criminal -
history score. The probation office gave appellant one custody -status point. Appellant is
entitled to resentencing under the 2019 guidelines for a reduced custody -status score of
one-half point.
“The amelioration doctrine requires that a law that mitigates punishment be applied
to acts committed before the law’s effective date , so long as no final judgment has been
reached and the legislature has not explicitly expressed contrary intent.” State v. Robinette,
944 N.W.2d 242, 249 (Minn . App. 2020), review granted (Minn. June 30, 2020). This
doctrine applies so long as (1) the legislature does not issue a statement of intent to abrogate
the amelioration doctrine; (2) the amended law mitigates punishment; and (3) final
judgment was not entered in the contested case before the effective date of the amendment.
State v. Kirby, 899 N.W.2d 485, 489 (Minn. 2017). Here, there is no legislative statement
limiting application of the August 1, 2019 amendments to the sentencing guidelines; the
reduction in custody -status points and misdemeanor/gross -misdemeanor units has the
effect of mitigating punishment; and appellant had not been sentenced before the effective
date of the amendments.
The appropriate remedy in this situation is to remand to t he district court for
resentencing consistent with the corrected criminal -history score. State v. Provost , 901
N.W.2d 199, 202 (Minn. App. 2017), citing Molina-Martinez v. United States, 136 S. Ct.
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1338, 1343-44 (2016) (directing remand to the district co urt when defendant’s criminal -
history score was incorrect but nevertheless resulted in a sentence within the presumptive
range).
Affirmed in part, reversed in part, and remanded