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This opinion is nonprecedential except as provided by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
A21-0057

State of Minnesota,
Respondent,

vs.

Jose Martin Lugo, Jr.,
Appellant.

Filed November 8, 2021
Reversed and remanded
Worke, Judge

Nobles County District Court
File No. 53-CR-15-141

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

Joseph M. Sanow, Nobles County Attorney, Worthington, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

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

Considered and decided by Slieter, Pres iding Judge; Worke, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges the sentence impos ed for his controlled-substance-crime
conviction, arguing that the sentence does not conform to the subsequent enactment of the
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Drug Sentencing Reform Act (DSRA) and was inappropriately calculated with an out-of-
state conviction factored into his criminal-h istory score. We reverse and remand for
resentencing.
FACTS
In February 2015, appellant Jose Martin Lugo Jr. was charged with second-degree
possession of a controlled substance, drivin g after revocation, and possession of drug
paraphernalia.
Lugo pleaded guilty to s econd-degree possession of a controlled substance. The
state dismissed the remaining charges. The parties agreed to a 68-month prison sentence,
which was the presumptive sentence calculat ed using two criminal -history points—one
felony point and one custody-status point. The one felony point was the result of two prior
convictions, each representing one-half point. The first was a failure-to-appear offense that
occurred in South Dakota in November 2015. The second was a fleeing-a-peace-officer
offense that occurred in Minnesota.
The district court later corrected L ugo’s criminal-history score due to a
miscalculation of Lugo’s cust ody status. The new presum ptive sentencing range was
between 50 and 69 months. The parties agreed to the previously-agreed-upon sentence of
68 months in prison, which remained within the new presumptive range.
In October 2020, the district court se ntenced Lugo to 68 months in prison. 1 This
appeal followed.

1 The significant time span between filing of the charges in 2015 and sentencing in 2020
is due to the case moving through an earlier appeal.
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DECISION
Lugo argues that he should be resenten ced in accordance with the DSRA because
his case had not reached a final judgment at the time that th e DSRA was enacted. Lugo
also challenges the one-half point in his cr iminal-history score for the South Dakota
conviction, arguing that the state failed to prove that this offense would have been
considered a felony in Minnesota. The interpretation of the sentencing guidelines is a legal
question that is re viewed de novo. State v. Strobel , 921 N.W.2d 563, 575 (Minn. App.
2018), aff’d, 909 N.W.2d 594 (Minn. 2018). “We review determinations of a defendant’s
criminal history score for abuse of discretion.” State v. Edwards , 900 N.W.2d 722, 727
(Minn. App. 2017), aff’d, 909 N.W.2d 594 (Minn. 2018).
DSRA
Following the enactment of the DSRA, the presumptive sentencing range for Lugo’s
conviction would be reduced from a presumptive sentence of 58 months in prison to a 58-
month stay of execution. Lugo’s current sent ence of 68 months in prison represents an
upward departure from the sentencing guidelin es. A sentence with in the sentencing
guidelines range is presumed appropriate. Minn. Sent. Guidelines II.D (2014). The district
court must impose the presumptive sent ence unless “substantial and compelling
circumstances” based on aggravating fact ors warrant an upward departure. State v.
Jackson, 749 N.W.2d 353, 360 (Min n. 2008). Circumstances are considered substantial
and compelling when “the defendant’s co nduct in the offense of conviction was
significantly more or less serious than that typically involved in the commission of the
crime in question.” State v. Misquadace, 644 N.W.2d 65, 69 (Minn. 2002).
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Resentencing under the DSRA-amended sentencing guidelines is appropriate when:
“(1) the Legislature made no statement that cl early establishes the Legislature’s intent to
abrogate the amelioration doctrine; (2) the amendment mitigated punishment; and (3) final
judgment had not been entered as of the date the amendment took effect.” State v. Kirby,
899 N.W.2d 485, 490 (Minn. 2017). In Kirby, the supreme court concluded that the
legislature made no statement clearly establis hing its intent to ab rogate the amelioration
doctrine and the DSRA m itigates punishment. Id. at 496. Thus, Lugo should be
resentenced if the three requirements of the amelioration doctrine are satisfied. And based
on Kirby, the first and second requirements are sati sfied. This leaves us to determine
whether final judgment was entered as of the date the amendment took effect.
A judgment is not considered final for th e “purposes of the third requirement of the
amelioration doctrine if the defendant has time ly filed a notice of appeal and the direct
appeal is still pending.” Luna-Pliego v. State, 904 N.W.2d 916, 919 (Minn. App. 2017).
This appeal is Lugo’s direct appeal from his conviction. Therefore, Lugo’s conviction has
not reached a final judgment, and the third requirement has been met.
Because Lugo has sa tisfied each of the Kirby requirements, the DSRA should be
applied to his sentence and we remand for resentencing.
South Dakota conviction
The sentencing guidelines “provide un iform standards for the inclusion and
weighting of criminal history information th at are intended to increase the fairness and
equity in the considerati on of criminal history.” State v. Reece , 625 N.W.2d 822, 824
(Minn. 2001) (quotation omitted). An out-of-sta te felony conviction is “included in a
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defendant’s criminal-history score.” State v. Maley , 714 N.W.2d 708, 711 (Minn. App.
2006). When a defendant’s sentence is based on an incorrect crimin al-history score, the
case must be remanded for resentencing. State v. Provost, 901 N.W.2d 199, 202 (Minn.
App. 2017).
Based on its severity level, a defendant is assigned between one-half and two points
for each conviction for which a felony sentence was stayed or imposed before the current
sentencing. Minn. Sent. Guidelines 2.B.1 (2014). “The [district] 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. (2014). Points are assigned
to an out-of-state conviction in accord with “the equivalent Minnesota offense based on the
elements of the prior non-Minnesota offense.” Minn. Sent. Guidelines 2.B.5.b. (2014). An
out-of-state conviction may be deemed a felony on ly if it would be defined as a felony in
Minnesota and the sentence imposed was a felony-level sentence. Id.
The state has the burden of proving by a preponderance of the evidence the facts
necessary to justify inclusion of a defendant’s out-of-state convictions. Maley, 714 N.W.2d
at 711. The state must show that “the pr ior conviction was valid, the defendant was the
person involved, and the crime would co nstitute” a felony, gr oss misdemeanor, or
misdemeanor in Minnesota. Id.
Here, there is no record evidence regardin g Lugo’s South Dakota conviction. The
nature of the offense committed is a necessary factor in determining whether a failure-to-
appear conviction in South Dakota cons titutes a felony in Minnesota, and this
determination could alter Lugo’s sentence. However, because Lugo failed to object to the
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inclusion of this offense in his criminal-history score, and the state was never provided an
opportunity to submit eviden ce regarding it, the proper re medy is to remand for an
opportunity for the state “to further develop the sentencing record so that the district court
can appropriately make its determination.” State v. Outlaw, 748 N.W.2d 349, 356 (Minn.
App. 2008), rev. denied (Minn. July 15, 2008).
Reversed and remanded.