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This opinion is nonprecedential except as provided by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
A22-0691

State of Minnesota,
Respondent,

vs.

James Darnell Posey,
Appellant.

Filed February 6, 2023
Affirmed in part, reversed in part, and remanded
Halbrooks, Judge*

Ramsey County District Court
File No. 62-CR-21-1040

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

John J. Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrew J. Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Segal, Chief Judge; Gaïtas, Judge; and Halbrooks,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
HALBROOKS, Judge
Appellant challenges his sentence following a domestic-assault conviction, arguing
that the district court denied his right to be present at sentencing and erred in assigning him
criminal-history points for an Illinois conviction. Appellant raises additional challenges in
a pro se supplemental brief. Because the district court did not violate appellant’s right to
be present, we affirm in part. But because the state failed to offer sufficient evidence that
appellant’s Illinois conviction ha d not decayed, we reverse in part and remand for
resentencing. On remand, the state shall be given an opportunity to offer additional
evidence to prove that the Illinois conviction had not decayed.
FACTS
In February 2021, the state charged appellant James Darnell Posey with felony
domestic assault, alleging that he punched his girlfriend. Posey pleaded guilty to the charge
with the understanding that the state would recommend a dispositional departure. Per the
agreement, Posey was to remain law-abiding, cooperate with the presentence investigation
(PSI), and appear for sentencing.
Posey failed to schedule a PSI, failed to appear for sentencing, and was charged with
new offenses, including violation of a domestic-abuse no-contact order (DANCO). Posey
was taken into custody and completed a PSI in December 2021.
The PSI recommended a 27-month sentence based on Posey’s criminal-history
score, which consisted of five and one-half felony points, including one and one-half points
for a 2005 Illinois conviction. According to the PSI, Posey indicated that he would
3
“execute his sentence” if the DANCO protecting his girlfriend was maintained. He told
the probation officer: “If there is a DANCO, I’ll be in prison. I will not let nobody or
nothing dictate who I can or can’t be with.” Posey also told the probation officer: “I don’t
like authority and I’m going to smoke weed. I don’t like people telling me what I have to
do.”
In March 2022, the district court held a remote sentencing hearing via Zoom. The
defense requested a di spositional departure in accordance with the plea agreement. The
state asked the district court to discard the plea agreement and impose a guidelines
sentence.
The district court allowed Posey to address the district court on the sentencing issue.
The district court asked Posey about his statement that he would rather execute his sentence
than have a DANCO in place. The district court also sought to ascertain Posey’s
amenability to probation in light of his PSI statements and new charges. During the
exchange between Posey and the district court, Posey interrupted the district court several
times, and the district court told him to “be quiet.” The district court then took a 15-minute
recess to consider the departure issue.
Following the recess, the district court again let Posey speak on the sentencing issue.
The district court granted the dispositional departure, stayed execution of Posey’s sentence,
and placed Posey on probation for four years. The district court then discussed the terms
of Posey’s probation, and the following exchange occurred:
DISTRICT COURT: There is a no contact order. You are to
have absolutely no contact directly, indirectly, through others,
4
in person, in writing, by telephone, electronically or by any
other means, with the victim in this case.

POSEY: How long?

DISTRICT COURT: What?

POSEY: How long?

DISTRICT COURT: While you are on probation.

POSEY: Four years?

DISTRICT COURT: Damn right. . . .

POSEY: C’mon . . . . See, c’mon, man, that ain’t fair.

DISTRICT COURT: Okay. All right.

POSEY: It’s cool. It’s cool. I got to do what you say, but that
ain’t fair, that you would do that to me for four years.

DISTRICT COURT: You better be quiet. Don’t say another
word or this is going to go south really quick. I will give you
a choice: We can not have that no contact order and you do the
30-month sentence that I just laid out. You have a choice there.
I will let you choose. No contact for 30 months. What’s it
going to be? You can have all the contact you want—

POSEY: That’s wrong that you would even make me have to
make this choice like that, man. That’s wrong. You’re going
to take me away from somebody that I care about just for
punishment, man. It’s cool—

DISTRICT COURT: [M]ute him. I am not going to put him
on probation. I am going to execute this sentence because he
already made clear in the PSI that he was —that he was going
to go to prison if there’s a DANCO, and now he’s just made
[it] clear again.
So, what I am going to do is we’re going to change
that. . . . I am not going to make it 30 months. I am going to
make it 27; 18 months in prison, 9 months on supervised
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release. He is entitled to custody credit of 106 days. We are
going to give his victim some peace of mind for a few months.
. . .
All right. Mr. Posey, let the deputies know we’re done.
Let them know we’re done. You got nothing else to say.
We’re done.

The district court sentenced Posey to 27 months in prison. This appeal follows.
DECISION
I.
Posey asserts that the district court, by muting his audio “without justification or
prior warning,” violated his right to be present at sentencing.
Under the Sixth and Fourteenth Amendments, a defendant has a right to be present
at trial. Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005); State v. Gillam, 629 N.W.2d
440, 450 (Minn. 2001). Additionally, Minn. R. Crim. P. 26.03, subd. 1, requires a
defendant’s presence at every stage of trial, including sentencing, 1 although a defendant
may waive his right by absenting himself or, after warning, engaging in conduct that
justifies exclusion. Gillam, 629 N.W.2d at 450-51 (citing Minn. R. Crim. P. 26.03, subd.
1(2)).
We review a district court’s decision to proceed with a stage of trial outside the
defendant’s presence for an abuse of discretion. Id. at 450. “[I]f a defendant is wrongly
denied the right to be present, the defendant is not entitled to relief if it can be said that the
error was harmless error beyond a reasonable doubt.” Ware, 498 N.W.2d at 457-58.

1 The supreme court has stated that the rights under rule 26.03 are broader than the rights
bestowed under the Constitution. State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993).
6
As a threshold matter, the parties dispute whether muting Posey resulted in him not
being “present.” The state argues that Posey was physically present at sentencing and that
Posey’s “real claim is not a violation of his right to be present, but a purported violation of
his right to allocution.” We agree.
In United States v. Braman, the Eighth Circuit considered a case in which the
defendant was muted twice during a videoconference sentencing hearing. 33 F.4th 475,
478 (8th Cir. 2022). The defendant provided a short allocution after arguments from
counsel. Id. The defendant then interrupted the district court. Id. The district court muted
the defendant and told him that he would have an opportunity to speak later. Id. When the
district court later gave the defendant an opportunity to speak, the defendant made
statements about the victim, and the district court again muted the defendant. Id. On
appeal, the defendant argued that “the district court committed plain and structural error
violating his Sixth Amendment right to counsel and his right to meaningful allocution,
when he was muted twice during the sentencing hearing.” Id. The Eighth Circuit found
that the “novel contention” was “without merit” because the defendant was present for
sentencing, the defendant failed to explain how his right to confer with counsel was
violated, a defendant’s role at sentencing is limited, there were no Confrontation Clause
issues, and the defendant was provided an opportunity to give a meaningful allocution. Id.
at 478-80.
This court is not bound by Eighth Circuit precedent, but such cases may be
persuasive. Regner v. Nw. Airlines, Inc., 652 N.W.2d 557, 563 (Minn. App. 2002). Based
on Braman, and the circumstances of this case, we conclude that Posey was present for
7
sentencing. The district court muted Posey after he had been given the opportunity for
meaningful allocution, and Posey was muted while the judge was handing down the
sentence, a stage of sentencing when Posey would not be expected to speak. The district
court was permitted to compel Posey’s silence at that stage of the proceeding. District
courts “are vested with broad discretion in deciding matters of courtroom procedure.” State
v. Lindsey, 632 N.W.2d 652, 658 (Minn. 2001).
Even if Posey’s right to be present was violated, any error was harmless beyond a
reasonable doubt. Again, Posey was muted while the judge was sentencing him, and there
was therefore no further need for argument or persuasion. As the judge stated after
imposing the sentence: “You got nothing else to say. We’re done.” Posey asserts that the
district court was “clearly on the fence,” and he argues that he could have persuaded the
judge to depart had he been given the opportunity to speak. But Posey had already been
given ample time to speak when the judge muted him and changed the sentence. Posey’s
arguments did not help his case. He effectively persuaded the judge to impose a prison
term.
Posey’s right to be present was not violated, and any error in muting Posey at the
end of the sentencing hearing was harmless beyond a reasonable doubt.
II.
Posey claims that the district court abused its discretion by assigning him one and
one-half criminal-history points for his 2005 Illinois conviction because the state failed to
prove that the conviction had “not decayed.” The state argues that the PSI contains
8
sufficient information to prove that the Illinois conviction resulted in an executed prison
sentence, and therefore the sentence had not decayed.
A sentence based on an incorrect criminal-history score is an illegal sentence that
may be corrected at any time. State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007). But
the district court’s determination of a defendant’s criminal-history score will only be
reversed for an abuse of discretion. State v. Roloff, 562 N.W.2d 29, 30 (Minn. App. 1997).
The sentencing guidelines allow out-of-state felony convictions to be included in a
defendant’s criminal-history score. State v. Maley, 714 N.W.2d 708, 711 (Minn. App.
2006). However, felony convictions that have decayed must not be used in calculating a
defendant’s criminal-history score. Under the sentencing guidelines, in computing
criminal-history score:
a prior felony sentence or stay of imposition following a felony
conviction must not be used if all the following, to the extent
applicable, occurred before the date of the current offense:
(1) the prior felony sentence or stay of imposition
expired or was discharged;
(2) a period of fifteen years elapsed after the date of the
initial sentence following the prior conviction; and
(3) if the prior felony sentence was executed, a period
of fifteen years elapsed after the date of expiration of the
sentence.

Minn. Sent’g Guidelines 2.B.1.c. (2020).
The state bears the burden of establishing the facts necessary for the inclusion of
out-of-state convictions in the defendant’s criminal-history score. Maley, 714 N.W.2d at
711. “The state must establish by a fair preponderance of the evidence that the prior
9
conviction was valid, the defendant was the person involved, and the crime would
constitute a felony in Minnesota.” Id.
Here, the only evidence on the out-of- state conviction came from the PSI, which
contained the following information: “Cook County, IL. Pled guilty 9/9/05 and sentenced
to 4 years Illinois DOC, credit 264 days. Supervised release 6/15/06. Discharged 6/15/08.
(04-CR-2881501). Severity Level D6- 1.5 Points[.]”2
The state concedes that if Posey “received a probationary sentence on September 9,
2005[,] and was never sent to prison for the Illinois conviction, then the conviction has
decayed.” The state further concedes that the PSI is the only source of evidence on whether
Posey was sent to prison for the conviction. However, the state argues that the PSI provides
sufficient evidence that the sentence was executed because it mentioned Posey being
sentenced to the Illinois “DOC” and placed on supervised release. We disagree. The PSI
provided insufficient evidence that Posey received an executed sentence and that his 2005
Illinois conviction had therefore not decayed.
As noted by the state, the PSI suggests, by referencing the DOC and supervised
release, that Posey’s sentence was executed. Indeed, the PSI specifically states that Posey
was “[d]ischarged” in June 2008, less than 15 years from the date of the “current” offense.
However, there was no testimony or additional documentation to confirm that the sentence
was executed, and this court has suggested that such evidence is needed. See Maley, 714

2 In the PSI, probation noted that the “matter is a Class 1 Felony in IL” and “is being
treated as the MN equivalent of Controlled Substance Crime in the 3rd Degree M.S.
152.023, given the drug amount is unknown, other than that it is between 1 and 15 grams.”
10
N.W.2d at 711. To meet its burden, the state does not need to provide certified copies of
an out-of-state conviction, but it must provide evidence sufficient under Minn. R.
Evid. 1005 that proves the validity of the conviction. State v. Griffin, 336 N.W.2d 519,
525 (Minn. 1983). Minn. R. Evid. 1005 states:
The contents of an official record, or of a document
authorized to be recorded or filed and actually recorded or
filed, including data compilations in any form, if otherwise
admissible, may be proved by copy, certified as correct in
accordance with [r]ule 902 or testified to be correct by a
witness who has compared it with the original. If a copy which
complies with the foregoing cannot be obtained by the exercise
of reasonable diligence, then other evidence of the contents
may be given.

In accordance with Griffin and rule 1005, the district court can “rely on persuasive
evidence that sufficiently substitutes for the official, certified record of conviction.” Maley,
714 N.W.2d at 712. In Griffin, the supreme court concluded that the state met its burden
by submitting “considerable documentation” that the defendant had been convicted of an
out-of-state offense, even though it did not submit a certified copy of the conviction. 336
N.W.2d at 525. In another case, State v. Jackson, the state provided sufficient evidence of
an out-of-state conviction based only on the unsworn “advice and testimony” of a probation
officer during sentencing. 358 N.W.2d 681, 682-83 (Minn. App. 1984). In contrast, the
state did not meet its burden in Maley when it listed the out-of-state convictions on the
sentencing worksheet but provided no documents or evidence admissible under rule 1005
to prove the convictions. 714 N.W.2d at 710, 712.
Here, the PSI report suggests that the sentence was executed, but it does not say so
definitively, and there was no testimony or additional documentation to support the state’s
11
assertion that the sentence was executed. Under these circumstances, the state failed to
meet its burden to show that the conviction had not decayed. We therefore reverse Posey’s
sentence and remand for resentencing.
Posey failed to object at sentencing to the inclusion of the 2005 Illinois conviction
in his criminal-history score. On remand, the state is therefore permitted to submit
additional evidence to the district court to prove that the 2005 Illinois conviction had not
decayed. See State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008) (reaching a similar
conclusion), rev. denied (Minn. July 15, 2008)
III.
In his pro se supplemental brief, Posey argues that he should not have received a
felony criminal-history point for a 2013 conviction for violation of an order for protection
(OFP). The documents accompanying Posey’s brief show that the conviction was for a
violation of Minn. Stat. § 518B.01, subd. 14(a) (2012). The PSI indicates that Posey
received one criminal-history point for the felony OFP violation.
Posey argues that violation of an OFP is not a criminal matter and that such actions
are resolved “in family court.” He is incorrect. See Minn. Stat. § 518B.01, subd. 14 (2012)
(setting forth criminal penalties for OFP violations). He also contends that his OFP
violation should not have been a felony because it was his “first OFP violation.” But
enhancement under the OFP statute is not limited to prior OFP violations.
Under the statute, a person commits a felony OFP violation if the person violates an
OFP “within ten years of the first of two or more previous qualified domestic violence-
related offense convictions or adjudications of delinquency.” Minn. Stat. § 518B.01 ,
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subd. 14(d)(1) (emphasis added). Qualified domestic violence-related offenses are defined
under Minn. Stat. § 609.02, subd 16 (2012), and include a multitude of offenses, not just
OFP violations. Minn. Stat. § 518B.01, subd. 2(c) (2012). Indeed, Posey’s PSI indicates
that he was convicted of DANCO violations in 2012, terroristic threats in 2011, and
domestic assault in 2010, all of which seemingly qualify for purposes of enhancement. In
sum, Posey’s pro se arguments are unavailing.
We affirm Posey’s sentence in part because his right to be present at sentencing was
not violated, and regardless, any error was harmless. But because the state failed to offer
sufficient evidence that Posey’s 2005 Illinois conviction had not decayed, we reverse in
part and remand for resentencing. On remand, the state shall have the opportunity to prove,
by testimony or additional documentation, that the 2005 Illinois conviction had not
decayed. See Outlaw, 748 N.W.2d at 356. If it is ultimately determined by the district
court that the Illinois conviction had decayed, Posey must be resentenced under the correct
criminal-history score.
Affirmed in part, reversed in part, and remanded.