Robert Earl Leatherberry, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A21-0663

Robert Earl Leatherberry, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 25, 2022
Affirmed
Smith, Tracy M., Judge

St. Louis County District Court
File No. 69DU-CR-15-1250

Robert Earl Leatherberry, Rush City, (pro se appellant)

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

Kimberly J. Maki, St. Louis County Attorney, Jessica J. Fralich, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Considered and decided by Reilly, Pr esiding Judge; Connolly , Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Robert Earl Leat herberry appeals the district court’s order denying his
motion to correct his sentence, arguing that the district court erred by rejecting his argument
that his criminal-history score was miscalculated to include a felony point for a Wisconsin
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conviction when he received a gross-misdemea nor sentence for that offense after his
probation was revoked. We co nclude that, because Leathe rberry received a stay of
imposition for a felony-level offense, the district court properly assigned a felony point for
the out-of-state conviction, despite the la ter probation revocation and gross-misdemeanor
sentence. We therefore affirm.
FACTS
This case has a winding procedural history.
In 2016, Leatherberry was convicted of criminal sexual conduct in the first degree
under Minn. Stat. § 609.342, subd. 1(e)(i) (2014). Before sentencing, Leatherberry
challenged the sentencing worksheet’s calcula tion of his criminal-history score, arguing
that he should not be assigne d one felony point for a 2006 co nviction in Wisconsin for
driving or operating a vehicle without consent, in violation of Wis. Stat. § 943.23(3) (2005-
06).
The Wisconsin conviction was a “Felony I” offense under Wisconsin law and as
such could have resulted in a sentence of imprisonment of more than one year. See Wis.
Stat. § 939.50(3)(i) (2005-06) (noting that impr isonment for a Felony-I offense is “not to
exceed 3 years and 6 months”). After pleading guilty to the offense, Leatherberry was
convicted, but the Wisconsin court “withhe ld” his sentence, according to Wisconsin
records, and imposed 120 days of stayed jail time and three years of probation.
Leatherberry’s probation was later revoked, and the Wisconsin court sentenced him to nine
months in local jail.
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At sentencing for this case, the district court rejected Leatherberry’s argument that
no felony point should be assigned to the Wisconsin conviction. It determined that
Leatherberry had received the equivalent of Minnesota’s stay of imposition of sentence for
the Wisconsin conviction and th at a felony point should be assigned. The district court
sentenced Leatherberry to the presumptive sentence of 306 months’ imprisonment. See
Minn. Sent. Guidelines 4.B, 5.B (2014).
Leatherberry appealed his conviction but did not raise the criminal-history-score
issue. This court affirmed. See State v. Leatherberry , No. A16-0731, 2017 WL 1549969
(Minn. App. May 1, 2017), rev. denied (Minn. July 18, 2017).
Leatherberry then petitioned for postco nviction relief, arguing, among other things,
that he was improperly assigned a felony point for the Wisconsin conviction and requesting
an evidentiary hearing. The district court denied his petition without an evidentiary hearing,
concluding that the criminal-history-sco re issue was procedurally barred under State v.
Knaffla because it had been fully litigated at sentencing and Leatherberry had failed to raise
it in his direct appeal. See State v. Knaffla , 243 N.W.2d 737, 738 (Minn. 1976).
Leatherberry appealed the postconviction order, and this court reversed in part, concluding
that the criminal-history-score challenge was not procedurally barred, and remanded for a
determination of whether an evidentiary hearing was required on that issue. Leatherberry
v. State, No. A19-1649, 2020 WL 3957249, at *4-5 (Minn. App. July 13, 2020).
On remand, the district court held an ev identiary hearing on the criminal-history-
score issue. Leatherberry did not submit add itional evidence. The district court denied
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Leatherberry’s postconviction petition for sentencing relief, finding that Leatherberry did
not meet his burden of proof and that the Wisconsin convi ction was properly assigned a
felony point because Leatherberry received a stay of imposition of sentence for a felony.
Leatherberry did not appeal that postco nviction order but instead moved to correct
his sentence under Minn. R. Crim. P. 27.03, subd. 9. Once again, he argued that he should
not have received a felony point for the Wisc onsin conviction. The di strict court denied
Leatherberry’s motion in two orders, finding that he failed to meet his burden of proof
because he presented no additional evidence and noting that the “motion is denied for the
reasons set forth in the [district court’s or der denying postconviction relief], which is the
law of the case.”1
Leatherberry appeals.
DECISION
Under Minn. R. Crim. P. 27.03, subd. 9, the court may “at any time correct a
sentence not authorized by law.” We review a district court’s denial of a motion to correct
a sentence under Minn. R. Crim. P. 27.03, subd. 9, for an abuse of discretion. See Townsend
v. State, 834 N.W.2d 736, 738 (Minn. 2013). A district court abuses its discretion when it
makes a decision based on an erroneous view of the law or when its decision is against
logic and facts in the record. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). We review

1 One of Leatherberry’s arguments in this a ppeal is that the district court erroneously
determined that his criminal -history-score challenge is Knaffla-barred. But the district
court did not rule based on Knaffla. Rather, it rejected Leatherberry’s motion to correct his
sentence on the merits as well as on the law of the case as established in its previous
rejection of the identical argument in Leatherberry’s postconviction petition.
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legal conclusions de novo and factual findi ngs under the clearly erroneous standard. See
Townsend, 834 N.W.2d at 738.
Though the state bears th e burden at sentencing to s how that a prior conviction
qualifies for inclusion in the defendant’s criminal-history score, in the context of a motion
to a correct sentence, the defendant bears the burden of proving that the sentence was based
on an incorrect criminal-history score. Williams v. State, 910 N.W.2d 736, 740-43 (Minn.
2018); see also Minn. Stat. § 590.04, subd. 3 (2020) (placing the burden of proof on the
petitioner in postconviction proceedings).
The Minnesota Sentencing Guidelines direct how to count out-of-state convictions
for criminal-history-score purposes. The guidelines provide: “An offense may be counted
as a felony only if it would both be defined as a felony in Minnesota, and the offender
received a sentence that in Minnesota would be a felony-level sentence, which includes the
equivalent of a stay of impos ition.” Minn. Sent. Guidelines 2.B.5.b (2014). There is no
dispute that the Wisconsin offense would be de fined as a felony in Minnesota; it equates
to felony motor vehicle use without consen t under Minn. Stat. § 609.52, subd. 2(17)
(2004). The only question is whether Leatherbe rry received a sentence that would be a
felony-level sentence in Minnesota.
Under the guidelines, felony convictions are assigned a particular weight (one point
in this case) in a defendant’ s criminal-history score “provided that a felony sentence was
stayed or imposed before the current senten cing or a stay of imposition of sentence was
given before the current sentencing.” Minn. Sent. Guidelines 2.B.1 (2014). A stay of
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imposition “occurs when the court accepts and records a finding or plea of guilty, but does
not impose (or pronounce) a prison sentence.” Minn. Sent. Guidelines 1.B.19.a (2014). If
the defendant “successfully completes the stay, the case is discharged, and the conviction
is deemed a misdemeanor . . . but is still incl uded in criminal history under section 2.B.”
Id.
The sentence for Leatherberry’s convic tion could have exceeded one year’s
imprisonment. Leatherberry received a “sentence withheld” for the Wisconsin conviction.
Under Wisconsin law, “if a person is conv icted of a crime,” a court may “withhold
sentence . . . and . . . place the person on prob ation” and may impose conditions on that
probation. Wis. Stat. § 973.09(1)(a) (2 005-06). The Wisconsin court found that
Leatherberry was “guilty as convicted” and th en withheld his senten ce. In this context,
Leatherberry received the equivalent of a stay of imposition.
But Leatherberry argues that , even if he received a stay of imposition for the
Wisconsin conviction, he shoul d not have received a felony point for th at conviction
because, after he violated hi s probation, he was sentenced to only nine months. In
Minnesota, a felony sentence is more than one year of imprisonment. Minn. Stat. § 609.02,
subd. 2 (2020). A gross-misdemeanor sentence is between 91 days and one year. Id., subds.
3, 4 (2020). A sentence of nine months is therefore a gross-misdemeanor sentence and not
a felony sentence in Minnesota.
Leatherberry relies on section 2.B.1.h of the guidelines to argue that his ultimate
nine-month sentence—and not his stay of imposition—controls. That section states,
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“[W]hen a prior felony conviction resulted in a non-felony sentence (misdemeanor or gross
misdemeanor), the conviction mu st be counted in the crim inal history score as a
misdemeanor or gross misdemeanor conviction as indicated in section 2.B.3.” Minn. Sent.
Guidelines 2.B.1.h. Leatherberry argues that section 2.B.1.h qualifies the general rule,
contained in section 2.B.1, that a felony c onviction is counted as a felony for criminal-
history-score purposes when a st ay of imposition was given. See Minn. Sent. Guidelines
2.B.1. Under Leatherberry’s interpretation, although he was given a stay of imposition, his
out-of-state conviction should not be assigne d a felony point because he was ultimately
given a gross-misdemeanor sentence.
The argument is unpersuasive. Secti on 2.B.1 of the guidelines lists three
circumstances in which a fel ony conviction is counted as a felony for criminal-history-
score purposes: (1) when a fe lony sentence was stayed, (2) when a felony sentence was
imposed, and (3) when a stay of imposition was given. Id. Here, the third circumstance
applies: a stay of imposition was given. Section 2.B.1 does not say that a felony weight is
not assigned if, following a stay of impositi on, a person is sentenced to a non-felony
sentence. Under the plain language of section 2.B.1, a felony point must be assigned based
on the stay of imposition.
Additionally, although secti on 2.B.1.h directs that convictions for which non-felony
sentences are given must be counted as indicated in another provision of the guidelines, it
does not address a stay of imposition followed by a probation revocation and a non-felony
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sentence. Thus, section 2.B.1.h does not qualify section 2.B.1’s general rule that a felony
conviction is counted when a stay of imposition of sentence is given.
Our decision in State v. Stewart does not compel a different result. 923 N.W.2d 668
(Minn. App. 2019), rev. denied (Minn. Apr. 16, 2019). In that case, a defendant had a prior
felony conviction for which he had initially re ceived a stay of imposition and was placed
on probation. Later, the district court “amended” the sentence and imposed and executed a
gross-misdemeanor sentence. Id. at 678. We concluded th at, because the defendant
received an amended gross-misdemeanor sent ence, the prior felony conviction should
count as a gross misdemeanor, not a felony, for criminal-history-score purposes. Id. at 680.
Because Stewart dealt with an amended sentence, we did not analyze the effect of a stay of
imposition. Id. at 678-80. As discussed above, wh en a defendant is given a stay of
imposition for a felony, the underlying conviction counts as a felony for criminal-history-
score purposes. Minn. Sent. Guidelines 2.B.1. Because Leatherberry received a stay of
imposition for the Wisconsin offense, that conviction counts as a felony.2

2 This conclusion accords with our reasoning in another u npublished opinion addressing
an out-of-state conviction after Stewart. In State v. Finley, as part of analyzing the effect
of a suspended indeterminate sentence of 8 to 19 months, we said that a stay of imposition
of a sentence for which more than one year of imprisonment was authorized results in
counting the underlying felony for criminal-history-score purposes. State v. Finley , No.
A18-1597, 2020 WL 132168, at *6 (Minn. App. Jan. 13, 2020), rev. denied (Minn.
Mar. 25, 2020). Consistent with our reasonin g in that case, Leatherberry’s Wisconsin
conviction should be counted because more than one year’s imprisonment was authorized
when he was given a stay of imposition of sentence.

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In sum, under section 2.B.1 of the guidelines, a felony point was properly included
in Leatherberry’s criminal-history score for his Wisconsin conviction because the offense
would have been a felony under Minnesota law, and he received a stay of imposition of a
sentence that could have exceeded one year. Therefore, the district court did not abuse its
discretion in denying Leatherberry’s motion to correct his sentence. 3
Affirmed.

3 Respondent State of Minnesota also argues that Leatherberry failed to meet his burden of
proof because he failed to show that the Wi sconsin conviction was a stay of adjudication
rather than a stay of imposition. A stay of adjudication occurs when “a judgment of guilty
has not been entered before the current sentencing.” Minn. Sent. Guidelines. 2.B.1.g; see
also State v. Verschelde , 595 N.W.2d 192, 195-96 (Minn. 1999) (noting that a stay of
adjudication is not a judgment of guilty). Stays of adjudicati on are given no weight in a
defendant’s criminal-history score. Minn. Sent. Guidelines 2.B.1.g. But Leatherberry
concedes in his brief that he received a stay of imposition. He argues that the felony point
was incorrectly assigned because he ultimatel y received a non-felony sentence following
the stay of imposition, not because he received a stay of adjudication.