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This opinion is nonprecedential except as provided by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
A21-0411

State of Minnesota,
Respondent,

vs.

Mathew Timothy Scully,
Appellant.

Filed October 4, 2021
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Polk County District Court
File Nos. 60-CR-17-578, 60-CR-17-1790, 60-CR-18-1417, 60-CR-18-1983

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

Gregory Widseth, Polk County Attorney, Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Adam Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decide d by Jesson, Presiding J udge; Larkin, Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Appellant Mathew Scully was convicted of third-degree controlled-substance crime
and three counts of failure to appear after pl eading guilty to those offenses. Scully now
challenges his sentences, asserting that four North Dakota convictions—obtained after he
2
was charged with third-degree controlled-substance crime but before he was sentenced—
were erroneously included in his criminal-history score. He also contends that the district
court erred by assigning him two misdemeanor points when sentencing him for his final
failure-to-appear conviction. Because the No rth Dakota offenses are “prior convictions”
within the meaning of the Mi nnesota Sentencing Guidelines , we affirm in part. But
because the district court co uld only assign a maximum of one misdemeanor point for
Scully’s third failure-to-appear sentence we reverse in part and remand to the district court
for resentencing.
FACTS
Mathew Scully was drivin g through East Grand Forks early one morning when a
police officer stopped him on su spicion of driving with a su spended license. When the
officer approached and asked for Scully’s license and proo f of insurance, he produced
neither document. Instead, he claimed to have a North Dakota license and falsely identified
himself as his brother. But when questioned further about his identity, Scully relented and
gave the officer his real name. The officer then searched the car, and found a pipe, two
butane tanks, and a scale with residue that tested positive for methamphetamine. The state
charged Scully with one count of third-degree controlled-substance crime and one count of
giving a false name to a peace officer.1

1 Minn. Stat. §§ 152.023, subd. 2(a)(6) (third-degree controlled substance crime), 609.506,
subd. 2 (giving a false name to a peace officer) (2016).
3
But over the next year and a half, Scully failed to appear on these charges four times.
For his absences, the state charged him with two felony counts of failure to appear.2 During
that time Scully also committed, was convict ed of, and was sentenced for four crimes
in North Dakota: fifth-degree possessi on of a controlled substance (gross
misdemeanor); domestic violence (misde meanor); threats of violence (gross
misdemeanor); and violation of a no-contact order (gross misdemeanor).3
Pursuant to a plea agreement with the stat e, Scully pleaded gu ilty to third-degree
possession of a controlled substance, giving a false name to a peace officer, and two of the
four failure-to-appear charges. In exchan ge, the state dismissed the additional charges
from the original incident and agreed not to charge Scully for the re maining failures to
appear. The parties also agreed that the state would seek the presumptive sentences under
the Minnesota Sentencing Guidelines. The district court accepted Scully’s plea, ordered a
summary presentence investigation, and scheduled a sentencing hearing for the following
month. But when Scully did not show up for sentencing, the state charged him with another
count of failure to appear. Scully late r pleaded guilty, and th e conviction was then
incorporated into the previous global plea agreement—including the provision that Scully
be given the presumptive sentence under the guidelines.

2 Minn. Stat. § 609.49, subd. 1(a) (2016).
3 These are the Minnesota equivalencies for the crimes Scully committed in North Dakota.
Scully does not challenge their accuracy on appeal.
4
Consistent with the plea ag reement, the district cour t sentenced Scully to the
presumptive sentences for each conviction: 27 months’ imprisonment for third-degree
controlled-substance crime and 15 months’ imprisonment for the third failure to appear.4
Scully appeals. 5
DECISION
Although Scully did no t object to his criminal-history score at sentencing, he may
challenge his score for the first time on appeal. See Minn. R. Crim. P. 27.03, subd. 9;
State v. Maurstad, 733 N.W.2d 141, 147 (Mi nn. 2007). Here, Scully assigns two errors.
First, he argues that four of the seven misdemeanor units assigned for his third-degree
controlled-substance convicti on were not “prior misdemea nors” under the Minnesota
Sentencing Guidelines. Second, Scully asserts that the district court erred by assigning two
misdemeanor points—instead of one point—to wards his overall criminal-history score
when sentencing him for his third failure-to-appear conviction.
Generally, the district court’s calculation of a defendant’s criminal-history score is
discretionary, and we will not reverse that dete rmination absent an a buse of discretion.
State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002). But because the district court’s
calculation in this instance in volves the interpretation of the sentencing guidelines—a

4 Scully only challenges these two sentences on appeal, but the district court also sentenced
Scully to 12 months and one day for the first failure-to-appe ar conviction, 15 months for
the second failure-to-appear conviction, and 12 months for giving a false name to a peace
officer.
5 The state did not file a brief in this matter, so we proceed pursuant to Minnesota Rule of
Civil Procedure 142.03.
5
question of law—we review the court’s decision de novo. State v. Williams ,
771 N.W.2d 514, 520 (Minn. 2009). We address each argument in turn.
I. The district court did not err by assigning four misdemeanor units for offenses
Scully committed after being charged with third-degree possession of a
controlled substance, but before sentencing.

Scully argues that the district court erred by assigning him seven misdemeanor units
for his third-degree controlled-substance conviction. He contends that four of those units—
based on the four North Dakota misdemea nors he committed after the third-degree
controlled-substance offense—should not be considered “prior convictions” for the
purposes of calculating his criminal-history score. Under the Minnesota Sentencing
Guidelines, one full crim inal-history point is assigned for every four prior misdemeanor
convictions. Minn. Sent. Guidelines 2.B. 3 (2016). Without counting the four North
Dakota misdemeanors, Scully would have had only three misdemeanor convictions and
would not have received a misdemeanor criminal-history point. If Scully did not have this
misdemeanor criminal-history point, his presumptive sentence would have been
21 months, rather than the 27 months imposed.
When interpreting the sentencing guidelines, we use “the same principles as when
interpreting statutes.” State v. Scovel , 916 N.W.2d 550, 554 (Minn. 2018). Therefore,
where the language of the guidelines is unambiguous, we give effect to its plain meaning.
Id. at 554-55. But if the language is “subject to more than one reasonable interpretation,”
we may “look to other factors to determ ine the [Sentencing Guidelines] Commission’s
intent.” Id. at 555 (quotation omitted).
6
We begin with the purpose of the Minne sota Sentencing Guide lines, which is to
“establish rational and consistent sentencing standards.” Minn. Sent. Guidelines 1.A
(2016). To that end, the guidelines provide instructions for determining a defendant’s
presumptive sentence based on the severity le vel of the crime for which he is being
sentenced and his criminal-history score. Mi nn. Sent. Guidelines 2.C.1 (2016). Because
Scully only challenges the district court’s calcu lation of his criminal-history score, that is
the focus of our analysis.
To calculate an offender’s criminal-history score, the district court assigns points
for eligible prior felonies, prior misdemeanors and gross misdemeanors, prior juvenile
adjudications, and the defendant’ s custody status at the time of the offense. Minn. Sent.
Guidelines 2.B (2016). At issue here is the method for assigning points for prior
misdemeanors and gross misdemeanors, whic h is outlined in Mi nnesota Sentencing
Guideline 2.B.3.a . Section 2.B.3.a states in relevant part:
If the current conviction is for an offense other than
criminal vehicular homicide or operation or felony driving
while impaired (DWI), assign the offender one unit for each
prior conviction . . . provided the offender received a stayed or
imposed sentence or stay of imposition for the conviction
before the current sentencing.

(Emphasis added.)6 Scully asserts that this secti on is unambiguous and that the phrase
“prior conviction” only includes a conviction that occurred prior to the commission of the
current offence for which the defendant is being sentenced.

6 The offenses contemplated in the guid elines include, among others, misdemeanor
domestic assault and non-traffic gross misdemeanors. Scully’s North Dakota misdemeanor
convictions fit squarely into those categories and he does not argue otherwise.
7
Although we agree that the guidelines are unambiguous, we disagree with Scully’s
interpretation. Section 2.B.3.a plainly stat es that when an o ffender has received a
conviction and sentence (o r stay) for an offense before the current sentencing , that
conviction will be include d for the purpose of calculating the offender’s criminal-history
score for the current conviction. Scully’s interpretation igno res the last phrase of the
guideline. And caselaw suppor ts our interpretation. In State v. Best, we determined that
the district court properly assigned the defendant an additional felony point for an offense
he was convicted of and senten ced for prior to being senten ced in the case at hand.
370 N.W.2d 691, 696 (Minn. App. 1985 ). And we reiterated our position in
State v. Mondry, holding that the defendant’s North Dakota offenses could be included in
his criminal-history score because he was sentenced for those convictions before being
sentenced for the Minnesota offenses at issu e. 682 N.W.2d 183, 184 (Minn. App. 2004)
(“[A]n offender’s conviction of an offense committed subseque nt to the current offense,
but sentenced prior to the current sentencing , is properly included in the defendant’s
criminal-history score.”).7
Here, Scully not only committed the four offenses in question after being charged
with third-degree controlled-substance crime, he was also convicted of and sentenced for

7 Scully attempts to distinguish Mondry, where the defendant’s criminal-history score was
based on prior felonies, unlike Scully, whose priors are gross misdemeanors and
misdemeanors. 682 N.W.2d at 183-84. Scully is correct that felonies are treated differently
under the guidelines, but that does not ch ange the unambiguous meaning of “prior
conviction” in section 2.B.3.a. See Minn. Sent. Guidelines cmt. 2.B.301 (2016) (weighing
prior convictions differently based on severity but providing identical method of counting
prior convictions).
8
each one before the current se ntencing. Applying the unambiguous language of the
guidelines, Scully’s North Dakota offenses are “prior convictions” and can be included in
the calculation of his overall criminal-history score. As such, the district court did not err
by assigning one misdemeanor point for his seven misdemeanor units.
II. The district court erred by assigning two misdemeanor points for a conviction
that was neither a felony DWI nor a criminal vehicular operation offense.

Scully argues that the district cour t erred by assigning him two misdemeanor
criminal-history points when the court sentenced him on his third failure-to-appear offense.
Recall that we review de novo the district court’s interpretation of the sentencing
guidelines. Williams, 771 N.W.2d at 520. Where the language of the sentencing guidelines
is plain and unambiguous, we presume the guidelines manifest the intent of the Minnesota
Sentencing Guidelines Commission. Scovel, 916 N.W.2d at 554-55. We will only look to
other factors when the language of the guidelines is ambiguous. Id.
At issue are Minnesota Sentencing Guide lines sections 2.B.3 .f-g. Section 2.B.3.f
states that “except as pr ovided in [section 2.B.3.g], an offender cannot receive more than
one point for prior misdemeanor or gross mi sdemeanor convictions” toward his criminal-
history score. The exception to this general rule is then listed in Section 2.B.3.g: “There is
no limit to the total number of misdemeanor points that can be included in the offender’s
criminal history score due to criminal vehi cular homicide or operation or DWI offenses”
when the offense being sentenced is either criminal vehicular homicide, criminal vehicular
operation, or felony DWI.
9
Scully argues that these sections unambig uously establish that district courts may
only assign a maximum of one misdemeanor point unless the defendant is currently being
sentenced for a felony DWI or criminal vehicular homicide or operation offense. We agree.
The guidelines plainly state that district courts may assign a maximum of one point for prior
misdemeanors and gross misdemeanors. Additional points may only be assigned when the
defendant is receiving a sentence for a fe lony DWI, a criminal vehicular homicide, or
criminal vehicular operation.
Here, the district court calculated Scully’s criminal-history score to be four when it
sentenced him for his third failure-to-appear offense. In determining this score, the district
court assigned Scully two misdemeanor points and two felony points. Scully’s failure-to-
appear conviction is not one of the offens es to which the misd emeanor-point exception
applies. Because the guidelines explicitly prohibit assigning more than one misdemeanor
point unless the above exception applies, the district court erred by assigning Scully two
misdemeanor points for his third failure-to-appear conviction.
In sum, Scully committed and was convict ed of and sentenced for his four North
Dakota offenses before he was sentenced for his third-degree possession conviction. Under
the plain meaning of the Minnesota Sentencing Guidelines, the North Dakota offenses are
“prior convictions” that were properly included in Scully’s criminal -history score. The
district court did not err in assigning one misdemeanor point for those prior convictions.
But because Scully’s failure-to-appear conviction is not a criminal vehicular homicide or
operation or felony DWI, the district court erred in assigning him two misdemeanor points
10
when it sentenced him on that conviction. As such, we reverse in part and remand to the
district court for resentencing on Scully’s third failure-to-appear conviction.
Affirmed in part, reversed in part, and remanded.