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This opinion is nonprecedential except as provided by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
A22-0396

State of Minnesota,
Respondent,

vs.

Earl Vincent Grasty,
Appellant.

Filed January 9, 2023
Reversed and remanded
Bjorkman, Judge

Hennepin County District Court
File Nos. 27-CR-21-7801, 27-CR-21-7870

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

Mary F. Moriarty, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Reilly, Presiding Judge; Bjorkman, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
In this direct appeal following guilty pleas to violating an order for protection
(OFP), appellant challenges his sentence. Because the sentence is based on an incorrect
criminal-history score, we reverse and remand.
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FACTS
In April 2021, respondent State of Minnesota filed separate complaints charging
appellant Earl Grasty with violating an OFP in March 2021 and with violating an OFP and
fleeing a police officer in April 2021. After several months of plea negotiations, Grasty
pleaded guilty to the two OFP violation s in exchange for the state’s agreement to
(1) dismiss the fleeing charge, (2) not charge him with other protective-order violations
“pending for charging,” and (3) a “16-month durational departure” for both offenses
because of their “less onerous circumstances.” The parties understood Grasty would have
a criminal-history score of 3 for the March offense, resulting in a presumptive probationary
sentence, and a criminal-history score of 4 for the April offense, resulting in a presumptive
prison sentence. Because of the anticipated prison sentence for the second offense, Grasty
asked the district court to execut e his sentence for the first. The district court accepted
Grasty’s pleas and sentenced him to concurrent terms of 16 months’ imprisonment. Grasty
appeals.
DECISION
The determination of a defendant’s criminal-history score is a question of law,
which we review de novo. State v. Scovel, 916 N.W.2d 550, 554 (Minn. 2018).
It is undisputed that Grasty has prior felony convictions that yield a total of 2.5
criminal-history points. And he was on probation at the time of the subject offenses, which
yields a one-half custody-status point. See Minn. Sent’g Guidelines 2.B (2020) (detailing
calculation of felony points and custody-status points). The parties and the district court
added these values, resulting in a criminal-history score of 3 for the first offense. But this
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court subsequently held that a partial custody-status point must be disregarded when
determining a presumptive sentence. State v. Beganovic, 974 N.W.2d 278, 288 (Minn.
App. 2022), rev. granted on other ground (Minn. June 29, 2022). Doing so leaves Grasty
with a score of 2.5 at the time of the first offense, which must be rounded down. Minn.
Sent’g Guidelines 2.B.1.i (2020). Accordingly, Grasty’s criminal-history score for the first
offense was 2 points and his score for the second was 3 points.1
The district court’s use of an incorrect criminal-history score impacts Grasty’s
presumptive sentence. Violating an OFP is a severity-level 4 offense. Minn. Sent’g
Guidelines 5.A (2020). A criminal-history score of up to 3 carries a presumptive
probationary sentence, while a criminal-history score of 4 carries a presumptive prison
sentence. Minn. Sent’g Guidelines 4.A (2020). Because Grasty’s criminal-history scores
were 2 and 3, both of his sentences were presumptively probationary.
The state concedes that Grasty’s sentence was based on an erroneous criminal-
history score, making his prison sentence illegal. See State v. Maurstad, 733 N.W.2d 141,
147 (Minn. 2007) (stating that a sentence based on an incorrect criminal-history score is
“illegal”). Generally, when a defendant is sentenced based on an incorrect criminal-history
score, we will remand for resentencing based on the correct score. E.g., id. at 151; State v.
Provost, 901 N.W.2d 199, 202 (Minn. App. 2017). But the state urges a different approach,
arguing that Grasty must pursue postconviction relief because his sentence is part of a plea
agreement as in State v. Coles, 862 N.W.2d 477 (Minn. 2015). We agree that correcting a

1 See State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981) (allowing the district court
to sentence separate and distinct convictions sequentially).
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sentence entered as part of a plea agreement is more nuanced because it “involves more
than simply the sentence.” Coles, 862 N.W.2d at 481 (citing State v. Lewis, 656 N.W.2d
535, 539 (Minn. 2003)). But there are two paths to correcting an agreed-to sentence.
The first path applies when, as in Coles, the time for direct appeal has passed. Then
the defendant may not simply move for sentence correction under Minn. R. Crim. P. 27.03,
subd. 9. Rather, the defendant must seek postconviction relief, subject to the timing and
other constraints of the postconviction statute. Id. at 480-82.
The second path applies when, as here, the defendant files a timely direct appeal. A
defendant has the right, as part of that appeal, to challenge “any sentence imposed or stayed
in a felony case.” Minn. R. Crim. P. 28.02, subd. 2(3). As noted above, if the defendant
demonstrates their sentence is based on an erroneous criminal- history score, we will
remand for resentencing. See Provost, 901 N.W.2d at 202. The district court then has
discretion to determine how, if at all, changing the sentence affects the parties’ plea
agreement. See Lewis, 656 N.W.2d at 539 (permitting district court to “consider the effect
that changes in the sentence have on the entire plea agreement”); accord State v.
Montermini, 819 N.W.2d 447, 454-55 (Minn. App. 2012) (concluding that district court
acted within scope of remand for withdrawal of guilty plea to one offense by also vacating
pleas and convictions to related offenses to “allow the prosecution to proceed anew”) ; cf.
Provost, 901 N.W.2d at 202 n.1 (observing that in the case of a “bargained-for” sentence,
a criminal-history-score error “may be grounds for a defendant to withdraw his plea”).

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In sum, because Grasty’s prison sentence is illegal, we reverse and remand for
resentencing based on the correct criminal-history score. On remand, the district court has
discretion to determine whether doing so affects the parties’ plea agreement.
Reversed and remanded.