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This opinion is nonprecedential except as provided by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
A21-0591

State of Minnesota,
Respondent,

vs.

Tywan George Christopher, Jr.,
Appellant.

Filed February 22, 2022
Reversed and remanded
Florey, Judge

Dakota County District Court
File No. 19HA-CR-19-778

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

Kathryn M. Keena, Dakota County Attorney, Anna Light, Assistant County Attorney,
Hastings, Minnesota (for respondent)

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

Considered and decided by Florey, Presiding Judge; Slieter, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
FLOREY, Judge
Appellant challenges his 29 -month sentence for felony assault, arguing that the
sentence was calculated with an incorrect criminal -history score. We reverse and remand
for resentencing.
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FACTS
In October 2020, appellant Tywan George Christopher , Jr., entered an Alford plea
to one count of felony fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 4(b)
(2018). Prior to sentencing, appellant’s criminal -history score was calculated using the
2018 Minnesota Sentencing Guidelines. The presentence -investigation (PSI) report
assigned appellant seven-and-one-half felony points and one custody-status point. Because
appellant’s felony-point total involved a partial point, it was rounded down to seven before
being added to the custody -status point. The district court imposed an executed bottom -
of-the-box sentence of 29 months, which included a three -month sentence enhancement
based on appellant’s criminal-history score of eight. This appeal follows.
DECISION
The parties agree that appellant’s sentence was based on an incorrect criminal -
history score and that he is entitled to remand for resentencing. A sentence based on an
incorrect criminal-history score is an illegal sentence that may be corrected at any ti me.
State v. Maurstad , 733 N.W.2d 141, 147 (Minn. 2007). When a defendant’s sentence is
based on an incorrect criminal-history score, his case must be remanded for resentencing.
State v. Provost , 901 N.W.2d 199, 202 (Minn. App. 2017). The proper calcul ation of a
defendant’s criminal-history score is a question of law that we review de novo. State v.
Strobel, 932 N.W.2d 303, 306 (Minn. 2019).
In 2019, the Minnesota Sentencing Guidelines Commission made several revisions
to Minnesota’s sentencing guide lines. Because appellant’s case was not yet final on
August 1, 2019, appellant was entitled to have his criminal -history score calculated
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pursuant to the 2019 revisions. See State v. Robinette, 964 N.W.2d 143, 151 (Minn. 2021)
(concluding that the amelioration doctrine applied to the 2019 revisions of the guidelines
and that the revisions apply to cases not yet final on August 1, 2019). Two revisions are
relevant here.
First, under the revised guidelines, a person on probation for a gross -misdemeanor
offense receives only a partial custody-status point. Compare Minn. Sent. Guidelines
2.B.2.a.3.iv (2019) (assigning a partial custody-status point if the person was on probation
for a gross -misdemeanor offense ), with Minn. Sent. Guidelines 2.B.2.a.3.iii (2018)
(assigning a full custody-status point if the person was on probation for a gross -
misdemeanor offense). But appellant received one full custody -status point for being on
gross-misdemeanor probation. Appellant should have been assigne d a partial custody-
status point, instead of one full point, for being on gross-misdemeanor probation at the time
the current offense was committed.
Second, under the 2019 revisions, “a prior felony sentence or stay of imposition
following a felony conviction must not be used if . . . fifteen years [have] elapsed after the
date of the initial sentence.” Minn. Sent. Guidelines 2.B.1.c. (2019) . Appellant received
a stayed felony sentence for first -degree criminal damage to property on March 20, 2001.
Appellant was erroneously assigned a partial felony point for that conviction, which has
decayed under the 2019 revisions.
Appellant also argues that he was erroneously assigned a partial criminal-history
point for a 2007 fifth -degree drug -possession convicti on. The district court assigned
appellant one-and-one-half criminal-history points for his 2007 convictions for violating
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an order for protection (OFP) and for fifth -degree drug possession. Appellant argues that
the partial point was error because (1) hi s drug possession and violation of the OFP were
part of a single behavioral incident and (2) the record does not demonstrate that his drug -
possession offense would constitute a felony offense under the Drug Sentencing Reform
Act (DSRA).
Prior to the enactment of the DSRA, all fifth -degree controlled-substance offenses
were felonies. See Minn. Stat. § 152.025, subd. 2 (2014). However, since its enactment in
2016, the DSRA classifies some first -time fifth -degree-possession offenses as gross
misdemeanors. See Minn. Stat. § 152.025, subd. 4(a) (2018) (providing that a person
without a prior qualifying controlled-substance offense is guilty of a gross misdemeanor if
he possesses less than 0.25 grams of heroin). The parties agree that appellant was
erroneously assigned a partial felony point for his 2007 fifth -degree drug -possession
conviction because the record does not demonstrate that his conviction would constitute a
felony at the time the current offense was committed . Because appellant should not have
received the partial felony point for the fifth-degree drug-possession offense, we need not
reach whether the 2007 sentences for drug possession and violating an OFP were part of a
single behavioral incident.
At the time the parties submitted their briefing to this court, they agreed that
appellant should have been sentenced based on a criminal -history score of seven , which
appears to be based on adding the partial custody-status point to the six-and-one-half felony
points. But that is incorrect. The Minnesota Sentencing Guidelines instruct that the felony
point total is rounded down before adding the custody -status points. Minn. Sent.
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Guidelines 2.B.1.i (2019). And the Minnesota Sentencing Guidelines Commission has
issued the following interim guidance on how to address partial custody -status points:
“[w]henever the criminal history point total contains a partial point (i.e., ends in ‘0.5’) due
to custody status, the partial point must be disregarded when determining the presumptive
sentence.” Minn. Sent. Guidelines Comm’n, Half Custody Status Point Problem – Interim
Guidance (Jan. 15, 2022), https://mn.gov/sentencing-guidelines/assets/20220115-MSGC-
PartialPointsinCriminalHistory_tcm30-515455.pdf. The Commission also directs courts
to follow State v. Eubanks in the absence of Sentencing Guidelines policy. Id. (citing No.
A19-2042, 2021 WL 318 260 at *6 (Minn. App. Feb. 1, 2021) ( disregarding a partial
custody-status point in determining appellant’s criminal -history score)). Considering this
guidance, appellant’s correct criminal-history score is calculated as follows. His six -and-
one-half fel ony points are rounded down to six under Minn. Sent. Guidelines 2.B.1.i
(2019). Adding his partial custody-status point to his score yields a criminal-history-point
total containing a partial point (i.e., ends in “0.5”) due to custody status. Thus, the p artial
point is disregarded, resulting in a correct criminal-history score of six.
Because appellant’s sentence was calculated using an incorrect criminal -history
score, he is entitled to remand for a resentencing hearing with a corrected criminal-history
score of six.
Reversed and remanded.