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This opinion is nonprecedential except as provided by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
A24-0838

State of Minnesota,
Respondent,

vs.

Travis Clay Andersen,
Appellant.

Filed May 19, 2025
Affirmed in part, reversed in part, and remanded
Halbrooks, Judge*

Carver County District Court
File No. 10-CR-23-152

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Mark Metz, Carver County Attorney, Chaska, Minnesota (for respondent)

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

Considered and decided by Bond, Presiding Judge; Bjorkman , Judge; and
Halbrooks, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
HALBROOKS, Judge
In this direct appeal from his conviction for threats of violence, appellant Travis
Clay Andersen argues that (1) the state failed to prove beyond a reasonable doubt that his
conduct constituted a threat, (2) the district court erred in failing to instruct the jury that it
was required to unanimously agree on which of his statements constituted a threat of
violence, (3) the assigned judge was disqualified by creating an appearance of partiality in
favor of the state, and (4) the district court erred in calculating a fractional sentence duration
and imposing an additional three-month custody-status enhancement to the duration of his
consecutive sentence for this offense. Andersen also raises additional claims in a pro se
supplemental brief.
Because we conclude that the evidence was sufficient to prove Andersen’s guilt
beyond a reasonable doubt, that any error in failing to provide a more specific unanimity
instruction to the jury was harmless, that the assigned judge was not disqualified from
presiding over Andersen’s trial, that the district court did not err in imposing a fractional
sentence, and that Andersen’s pro se arguments are without merit, we affirm in part. But
because we conclude that the district court erred in imposing a three-month custody-status
enhancement to Andersen’s sentence, we reverse in part and remand for resentencing.
FACTS
On the morning of November 30, 2022, Andersen was an inmate at the Carver
County Jail, detained in a holding cell near the jail’s booking area. Just before 5:00 a.m.,
A.S.—a detention sergeant for the jail —conducted a welfare check on Andersen in his cell.
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According to A.S., Andersen asked for a blanket and, when A.S. refused, became very
upset—“running around the room, arms flailing, screaming, banging, kicking. At one point
he hit his head on the door.”
When A.S. still refused to provide Andersen with a blanket, Andersen reportedly
said that he was “going to tell everyone he knew in the Blood gang to get [A.S.],” and then
looked directly at A.S. through the window of the cell and told him “I’m going to f***ing
kill you.” During this exchange, Andersen also called A.S. names, which included racist
and homophobic invectives, and stated that he would kill the next person to open the cell
door due to A.S.’s refusal to give him a blanket. Following A.S.’s report of this incident,
the state charged Andersen with one count of threats of violence, in violation of Minn. Stat.
§ 609.713, subd. 1 (2022).
At trial, the state presented testimony from A.S. as well as from two other detention
deputies who remotely witnessed Andersen’s interaction with A.S. through the jail’s
security-camera system as well as A.S.’s reaction afterwards. The state also presented the
testimony of a sheriff’s detective who explained an incident that had occurred on March 1,
2022, in which Andersen arrived unannounced at a Carver County prosecutor’s home at
10:00 p.m., causing the prosecutor to call 911. The detective also testified that A.S. had
been aware of that information. Andersen testified on his own behalf and denied
threatening A.S. The jury found Andersen guilty.
Andersen appeared on February 22, 2024, for a sentencing hearing in the current
matter as well as in several additional felony cases. The district court sentenced Andersen
to an executed term of 17.4 months in prison, to be served consecutive to the sentences in
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other matters that the district court had imposed. The duration of this sentence included a
three-month enhancement due to appellant’s criminal-history score and his custody status
at the time of the offense.
This appeal follows.
DECISION
I. The evidence was sufficient to prove beyond a reasonable doubt that
Andersen’s statements to A.S. constituted a “threat” within the meaning of
Minn. Stat. § 609.713, subd. 1.

A person is guilty of threats of violence if he “threatens, directly or indirectly, to
commit any crime of violence with purpose to terrorize another . . . or in a reckless
disregard of the risk of causing such terror.” Minn. Stat. § 609.713, subd. 1. To constitute
a “threat” for purposes of this statute, the words or actions of the defendant must
communicate “an intention to injure another or their property” through the commission of
“a statutorily defined crime of violence,” and must—in context —“create[] reasonable
apprehension that [the defendant] will carry through with or act on the threat.”
State v. Mrozinski, 971 N.W.2d 233, 239-40 (Minn. 2022). Andersen challenges the
sufficiency of the state’s evidence as to this latter element and argues that the state failed
to prove beyond a reasonable doubt that the context of his statements created a reasonable
apprehension that he would act on this threat to kill A.S. We disagree.
In evaluating the sufficiency of the evidence, this court reviews the evidence
presented at trial “to determine whether the facts in the record and the legitimate inferences
drawn from them would permit the jury to reasonably conclude that the defendant was
guilty beyond a reasonable doubt of the offense of which he was convicted.” State v. Al-
5
Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (quotation omitted). An appellate court “will
not overturn a verdict if, giving due regard to the presumption of innocence and to the
prosecution’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably
have found the defendant guilty of the charged offense.” State v. Cruz, 997 N.W.2d 537,
551 (Minn. 2023) (quotation omitted).
A conviction for an offense may validly be based on either direct or circumstantial
evidence. State v. Olson, 982 N.W.2d 491, 495 (Minn. App. 2022). Direct evidence is
“based on personal knowledge or observation and that, if true, proves a fact without
inference or presumption.” State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation
omitted). Circumstantial evidence is “evidence from which the factfinder can infer whether
the facts in dispute existed or did not exist” and “always requires an inferential step to
prove a fact that is not required with direct evidence.” State v. Jones, 4 N.W.3d 495, 501
(Minn. 2024) (quotations omitted).
When a disputed element of an offense was supported by direct evidence at trial,
our review is limited to a “painstaking analysis of the record to determine whether the
evidence, when viewed in a light most favorable to the conviction, was sufficient to permit
the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn.
1989). When a disputed element was supported by circumstantial evidence, however, we
afford heightened scrutiny of its sufficiency through application of a two-step standard of
review. State v. Colgrove, 996 N.W.2d 145, 150 (Minn. 2023). In the first step of this
analysis, “we identify the circumstances proved” by “resolving all questions of fact in favor
of the jury’s verdict” and “disregard[ing] evidence that is inconsistent with the jury’s
6
verdict.” Id. (quotations omitted). In the second step, we evaluate the reasonableness of
the inferences that may be drawn from the circumstances proved without deference to the
jury’s choice from among them. State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017). “To
sustain the conviction, the circumstances proved, when viewed as a whole, must be
consistent with a reasonable inference that the accused is guilty and inconsistent with any
rational hypothesis except that of guilt.” Id.
As a threshold matter, the parties dispute whether the reasonable- apprehension
element of a threats -of-violence offense was supported in this case by direct or
circumstantial evidence. We need not resolve this dispute, however, because we conclude
that the evidence was sufficient to prove Andersen’s guilt beyond a reasonable doubt even
under the heightened scrutiny afforded by the circumstantial-evidence standard of review.
As discussed above, we first identify the circumstances proved by the state’s
evidence. Colgrove, 996 N.W.2d at 150. These include: (1) Andersen, while detained in
a holding cell at the Carver County Jail, asked A.S. for a blanket when A.S. stopped to
conduct a welfare check on Andersen; (2) when A.S. refused, Andersen became upset and
began “running around the room, arms flailing, screaming, banging, kicking,” including
hitting his head against the cell door; (3) during this interaction, Andersen called A.S. a
number of derogatory names and slurs, stated that he was “going to tell everyone he knew
in the Blood gang to get [A.S.],” and then looked directly at A.S. through the window of
the cell and told him “I’m going to f***ing kill you”; (4) Andersen also stated that he
would kill the next person to open the cell door due to A.S.’s refusal to give him a blanket;
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and (5) A.S. was aware that, in March 2022, Andersen had arrived unannounced at the
home of a Carver County prosecutor at 10:00 p.m., causing the prosecutor to call 911.
For the second step of the analysis, we determine whether the circumstances proved
are consistent with guilt and inconsistent with any reasonable hypothesis of innocence.
Harris, 895 N.W.2d at 600. Again, the offense element at issue here is whether Andersen’s
statements, when examined in their context, created a “reasonable apprehension” that he
would “carry through with or act on the threat.” Mrozinski, 971 N.W.2d at 239. Andersen
argues that his statements to A.S. included three distinct threats to commit a crime of
violence. Although Andersen does not dispute that the circumstances proved are consistent
with his guilt, he asserts that they do not exclude the rational hypothesis that his words and
actions “did not reasonably tend to cause apprehension that he would act to kill A.S., over
a deprived blanket or otherwise.”
Andersen’s first threat was that he was “going to tell everyone he knew in the Blood
gang to get [A.S.].” Andersen argues that because nothing in the record suggests that he
either knew or had access to such gang members or that they would be willing to act on his
behalf, this threat had no reasonable capacity to cause apprehension that anyone would
commit a violent crime against A.S. Second, Andersen threatened to kill the next person
who opened the door to his cell . According to Andersen, this threat was not credible
because there was no evidence to support Andersen’s ability to overpower and kill
corrections personnel “with his bare hands alone.” And, finally, Andersen threatened to
kill A.S. directly, which Andersen contends would not reasonably have caused
apprehension because A.S. testified that he was not planning to open Andersen’s cell door,
8
that he was not concerned about Andersen being able to get out of his cell, and that he “did
not actually believe it would happen.”
Andersen’s arguments do not persuade us. He provides no authority establishing
that the context for a threat must include affirmative evidence that the declarant is capable
of actually carrying out the threat as communicated in the immediate or near future. Rather,
all that is required is a “reasonable apprehension that the defendant will carry through with
or act on the threat.” Id. (emphasis added). And given the context of each of Andersen’s
statements, we have little trouble deeming this element satisfied. Given Andersen’s level
of agitation, his abusive language towards A.S., and particularly A.S.’s subjective
awareness that Andersen had appeared unannounced at the home of a Carver County
prosecutor, it would be reasonable for someone in A.S.’s position to be apprehensive that
Andersen would act on these threats by either attempting to have someone harm A.S. on
his behalf, attempting to assault the next person to enter his cell, or by attempting to assault
or kill A.S. himself.
Stated differently, to say that it would be unreasonable for an observer to be
apprehensive that Andersen would act on his threats is itself a decidedly unreasonable
inference to be drawn from the circumstances proved and the context of his statements.
Accordingly, the evidence was sufficient to prove beyond a reasonable doubt that
Andersen’s statements constituted “threats” for purposes of Minn. Stat. § 609.713, subd.
1.

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II. The district court did not plainly err by failing to instruct the jury that it must
unanimously decide which of Andersen’s statements constituted a threat of
violence.

“Jury verdicts in all criminal cases must be unanimous.” State v. Pendleton, 725
N.W.2d 717, 730 (Minn. 2007) (citing Minn. R. Crim. P. 26.01, subd. 1(5)). Andersen
contends that he was deprived of his right to a unanimous verdict due to the district court’s
failure to instruct the jury that it was required to agree on which of his threats had been
proven beyond a reasonable doubt. “We review a district court’s jury instructions for an
abuse of discretion.” State v. Huber, 877 N.W.2d 519, 522 (Minn. 2016). We review them
in their entirety “to determine whether they fairly and adequately explained the law of the
case.” State v. Kuhnau, 622 N.W.2d 552, 555-56 (Minn. 2001).
Because Andersen did not object to the district court’s instructions at trial, we
review his claim for plain error. State v. Wenthe, 865 N.W.2d 293, 299 (Minn. 2015). To
prevail under the plain-error standard of review, an appellant must demonstrate “(1) error;
(2) that is plain; and (3) the error must affect substantial rights.” State v. Griller, 583
N.W.2d 736, 740 (Minn. 1998). An error is considered “plain” if it was “clear or obvious,”
and this is typically established “if the error contravenes case law, a rule, or a standard of
conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (quotations omitted). And
an error affects substantial rights “only if there is a reasonable probability that the error
actually impacted the verdict.” State v. Jackson, 773 N.W.2d 111, 121 (Minn. 2009). If
these requirements are satisfied, this court “then assesses whether it should address the
error to ensure fairness and the integrity of the judicial proceedings.” Id. at 121-22. But if
10
any element of this test is not met, we need not evaluate the others. State v. Webster, 894
N.W.2d 782, 786 (Minn. 2017).
Here, the district court instructed the jury that its verdict must be unanimous.
Andersen argues, however, that this instruction was inadequate because the evidence
established that he made two distinct categories of threats: one against A.S. directly —by
stating he was “going to tell everyone he knew in the Blood gang to get [A.S.],” and by
telling A.S. that “I’m going to f***ing kill you”—and a second against an unspecified
“next person that opened the cell door.” Because these threats were directed against
different individuals, and involved different acts, locations, and timing, Andersen argues
that the district court was obligated to instruct the jury that it was required to unanimously
agree on which category of threat had been proven beyond a reasonable doubt. We
conclude, however, that any error by the district court in failing to provide a more specific
unanimity instruction did not affect Andersen’s substantial rights.
Assuming without deciding that the district court’s failure to provide the jury with
a specific unanimity instruction was error, the relevant inquiry for determining whether it
affected Andersen’s substantial rights is whether there is “a reasonable likelihood that the
giving of the instruction in question would have had a significant effect on the verdict of
the jury.” Griller, 583 N.W.2d at 741 (quotation omitted). Andersen argues that, had such
an instruction been given, jurors may have disagreed about which category of threat was
proven beyond a reasonable doubt. We are not persuaded.
Although the state presented evidence of three separate remarks by Andersen
threatening to commit a crime of violence, the state’s theory at trial centered exclusively
11
around Andersen’s direct threat to kill A.S. In both its opening and closing remarks, the
state defined Andersen’s crime exclusively as his statement to A.S. that “I’m going to
f***ing kill you.” Moreover, at no point did the state suggest to the jury that it could decide
from among Andersen’s multiple statements when determining what constituted the
charged threat. See State v. Stempf, 627 N.W.2d 352, 358 (Minn. App. 2001) (concluding
that a specific-unanimity instruction was necessary, in part, because the state told the jury
during closing arguments that either of two alleged acts of drug possession could satisfy
the possession element of the charged crime). And Andersen did not provide separate
defenses with respect to each threat; he instead denied having made any of them See
State v. Rucker, 752 N.W.2d 538, 548 (Minn. App. 2008) (considering the nature of the
appellant’s defense at trial in determining whether a specific unanimity instruction was
required), rev. denied (Minn. Sept. 23, 2008). Based on the state’s presentation of its
evidence, therefore, we discern no reasonable possibility that the jury was confused or
unclear as to which of Andersen’s statements it was being asked to determine was a threat
of violence.
In addition, there is similarly no reasonable possibility that the jury—had it been
instructed as Andersen suggests —would not have found him guilty beyond a reasonable
doubt based upon his direct threat to kill A.S. Andersen’s threatening statements were
made at the same time, in the same location, and under similar circumstances —amid a
profanity-laden outburst by Andersen following A.S.’s refusal to provide him with a
blanket. In the event that a given juror here had found either that Andersen’s threat to have
gang members “get” A.S. or to kill the next person to enter his cell satisfied the elements
12
of the offense beyond a reasonable doubt, there is no rational basis on which to believe that
the juror would not also have reached this same conclusion regarding the threat to kill A.S.
directly had that specific question been put to them. Accordingly, we conclude that any
error in the district court’s instruction regarding unanimity did not affect Andersen’s
substantial rights.
III. The presiding judge was not disqualified due to the alleged appearance of
partiality.

The Minnesota Rules of Criminal Procedure provide that a judge “must not preside
at a trial or other proceeding if disqualified under the Code of Judicial Conduct.” Minn.
R. Crim. P. 26.03, subd. 14(3). The Minnesota Code of Judicial Conduct, in turn, provides
in relevant part that “[a] judge shall disqualify himself or herself in any proceeding in which
the judge’s impartiality might reasonably be questioned.” Minn. Code Jud. Conduct Rule
2.11(A). And “impartiality” is defined in this context as the “absence of bias or prejudice
in favor of, or against, particular parties or classes of parties, as well as maintaining an
open mind in considering issues that may come before the judge.” State v. Schlienz, 774
N.W.2d 361, 366 (Minn. 2009) (quotation omitted).
Whether a judge has violated the code of judicial conduct is a question of law we
review de novo. State v. Dorsey, 701 N.W.2d 238, 246 (Minn. 2005). In addressing such
a claim, “ we begin with the presumption that a judge has discharged his or her judicial
duties properly.” Schlienz, 774 N.W.2d at 366. We then evaluate “whether a reasonable
examiner, with full knowledge of the facts and circumstances, would question the judge’s
impartiality.” In re Jacobs, 802 N.W.2d 748, 753 (Minn. 2011).
13
Andersen argues that the district court judge disqualified himself under these
rules—and so was prohibited from presiding over the trial—for three reasons. First,
because the district court prompted the state to call an additional witness after it had already
rested. Second, because the court admonished Andersen to refrain from interrupting the
testimony of that witness. And third, because the district court repeatedly interrupted
Andersen during his own testimony. Andersen, however, did not object to the district
court’s actions in these regards and did not move for disqualification of the judge. We
therefore review for plain error. See Schlienz, 774 N.W.2d at 365 (“Here, we need not
decide whether there was structural error or whether the error was waived because, even if
we assume that the error was waived, the unobjected-to error may be reviewed for plain
error.”).
Prior to trial, the state moved to introduce testimony—pursuant to rule 404(b) of the
Minnesota Rules of Evidence—regarding the March 2022 incident in which Andersen had
arrived unannounced and uninvited at the home of a Carver County prosecutor at 10:00
p.m. At trial, however, the state rested without calling its witness to testify regarding this
incident. The district court then asked: “Prior to resting, though, I assume you want to call
one additional witness?” The state responded “Yes” and then called a detective with the
Carver County Sheriff’s Office to provide the relevant testimony.
During the state’s examination of the detective, Andersen —who was represented
by counsel—interrupted and objected to the relevance of the testimony. The district court
admonished Andersen to stop talking and, when Andersen persisted, excused the jury from
the courtroom, again told Andersen to stop talking, and twice told him that “this is not
14
helping you one bit.” After a brief recess, the detective concluded his testimony and the
state rested. Andersen then testified on his own behalf. During direct examination, the
district court interjected during Andersen’s response to a question, stating that Andersen
had answered the question posed and directing questioning to proceed. And during cross-
examination, the district court twice admonished Andersen for not answering the questions
asked.
Andersen argues that the district court’s actions in these regards would have led a
reasonable examiner to question whether the district court was exhibiting bias in favor of
the state. We disagree. District courts have discretion to manage trial proceedings.
State v. Thomas, 882 N.W.2d 640, 644 (Minn. App. 2016), aff’d 891 N.W.2d 612 (Minn.
2017). This discretion includes the ability to “exercise reasonable control over the mode
and order of interrogating witnesses,” Minn. R. Evid. 611(a), as well as to deal with
disruptive defendants, State v. Richards, 495 N.W.2d 187, 197 (Minn. 1992). In addition,
the Minnesota Rules of Criminal Procedure afford district courts the express authority to
permit any party to reopen its case to offer additional evidence. Minn. R. Crim. P. 26.03,
subd. 12(g). Based upon our independent review of the trial record, we cannot conclude
that the district court’s exercise of its discretion in these regards raises a reasonable
question as to its impartiality.
Contrary to Andersen’s argument, prompting the state to call a final witness after it
had rested would not have led a “reasonable examiner, with full knowledge of the facts and
circumstances,” to question whether the judge was biased in favor of the state. Jacobs, 802
N.W.2d at 753. Considering that the parties and the court were aware that the state intended
15
to call the detective to testify, and considering that the court had the authority to allow the
state to reopen its case to present the detective’s testimony in the event that it neglected to
do so, we discern nothing plainly improper about the district court preemptively inquiring
as to whether the state intended to call its final noticed witness before resting. And its
manner of doing so, moreover, would not have led a reasonable observer to suspect that it
was being done out of favoritism towards one party as opposed to merely ensuring that
each party was permitted a full and fair presentation of its case.
Similarly, we are unpersuaded by Andersen’s argument that the district court’s
admonition that his interruptions of the detective’s testimony were “not helping [him] one
bit” raised any reasonable specter of bias. To the contrary, after the district court had
repeatedly and unsuccessfully tried to stop Andersen from interrupting, telling him that he
was not helping himself was most reasonably intended to preserve the fairness of
Andersen’s trial by warning him that he could be prejudicing his own case through his
behavior. Under these circumstances, the district court’s actions were a reasonable
exercise of its discretion to control the trial proceedings, and we see no legitimate basis on
which to construe the district court’s statements as evidence of partiality either against
Andersen or in favor of the state.
Finally, the district court’s own interruptions of Andersen’s testimony were likewise
both reasonable under the circumstances and did not reasonably suggest bias. On the first
occasion, during direct examination, Andersen’s attorney asked him whether his
interactions with A.S. while detained were positive or negative. Once Andersen’s response
began to deviate from the scope of the question, the district court interjected: “Okay. Mr.
16
Andersen, you’ve answered the question. Next question please.” On the second and third
occasions, the prosecutor asked Andersen questions on cross-examination to which
Andersen did not initially provide a responsive answer. In each instance, the district court
simply prompted Andersen to answer the question that had been asked, and Andersen
complied. We again conclude that this was an entirely reasonable means of controlling the
presentation of evidence by the district court and that there is no rational possibility that an
outside observer would have interpreted the court’s actions as indicative of bias against
Andersen.
Because it is not “clear or obvious” that the district court’s trial- management
decisions in these regards would have led a reasonable examiner to question the judge’s
impartiality, Andersen has failed to demonstrate any clear or obvious error that would
entitle him to relief. Ramey, 721 N.W.2d at 302 (quotations omitted).
IV. The district court did not err in calculating a fractional presumptive sentence
duration, but did err in adding a three-month custody -status enhancement to
Andersen’s permissive consecutive sentence for this offense.

The district court sentenced Andersen to an executed term of 17.4 months, to be
served consecutively to sentences in other matters that had been imposed in the same
proceeding. Andersen now argues that this sentence is erroneous because the district court
(1) improperly imposed a fractional sentence duration and (2) improperly added a three-
month custody-status enhancement to the duration of this sentence. Questions involving
the interpretation of the sentencing guidelines and whether a sentence conforms to those
guidelines are reviewed de novo. State v. S covel, 916 N.W.2d 550, 554 (Minn. 2018);
17
State v. Williams, 771 N.W.2d 514, 520 (Minn. 2009). We consider Andersen’s arguments
in turn.
A. Fractional Sentence Duration
When a defendant is convicted of multiple current offenses in the same proceeding,
concurrent sentencing is presumptive. Minn. Sent’g Guidelines 2.F (2022). The district
court, however, may impose a sentence consecutive to a previously imposed sentence
without departing from the sentencing guidelines under certain circumstance, such as when
the current sentence and the prior sentence are for offenses on the sentencing guidelines’
list of offenses eligible for permissive consecutive sentencing. Id. at 2.F.2.a.(1)(ii), 6. The
parties do not dispute that Andersen was eligible for consecutive sentencing in this case for
that reason.
If a permissive consecutive sentence is to be imposed, the presumptive disposition
of the consecutive sentence is a commitment to prison, and the district court must use a
criminal history score of zero when determining the presumptive duration of that sentence
from the applicable sentencing guidelines grid. Id. at 2.F.2.a.(1), 2.F.2.b, 4.A. When, as
in Andersen’s case, the cell on the guidelines grid corresponding with a criminal- history
score of zero and the severity level of the offense being sentenced provides a single
sentencing duration and would otherwise prescribe a stayed sentence, the district court is
to impose a sentence within a range that is “15 percent lower and 20 percent higher than
the fixed duration displayed.” Minn. Sent’g Guidelines 2.C.1 (2022).
Here, the presumptive sentence for a threats-of-violence conviction with a criminal-
history score of zero is a stayed sentence of 12 months. Minn. Sent’g Guidelines 4.A, 5.A.
18
(2022). Because a felony sentence may not be shorter than 12 months, the available range
for an executed sentence based upon this cell is therefore between 12 months and 14.4
months— 20% higher than 12 months. Id. at 2.C.1. Andersen argues, however, that a
district court is required to round down any fractional sentence duration to the next lowest
whole number when computing a sentencing range in this manner. This is so, he asserts,
because all other sentencing ranges in the guidelines grids are provided in whole numbers
and—in cases where 15% or 20% of the presumptive sentence duration in a given cell
would result in a factional month —the maximum and minimum durations appear to have
been rounded down to the nearest whole month. But although Andersen’s observation
appears correct, we do not agree that this thereby requires a district court to round down
the maximum or minimum durations of a sentencing range when calculating it for purposes
of imposing an executed sentence from a grid cell that ordinarily prescribes a stayed
sentence of a single fixed duration.
The text of the guidelines themselves unambiguously prescribe the means of
calculating a sentencing range under these circumstances and do not provide any indication
that the end points of the resulting range are to be modified when a fractional duration
results. And to the extent that there exists any ambiguity on this point, a comment to the
guidelines provides a specific example that includes a fractional sentence duration. See
Minn. Sent’g Guidelines cmt. 2.G.01 (2022) (providing 20.5 months as an example of a
presumptive sentence length for an offense that requires the presumptive duration to be
reduced by one-half). Although the comments to the guidelines are nonbinding, we may
consider them in interpreting the guidelines themselves. See Scovel, 916 N.W.2d at 555
19
(“[W]e strive for an interpretation that is consistent with the comments to the Guidelines,
but the comments are merely advisory, not binding.”). Doing so here, we are satisfied that
it was the intent of the Sentencing Guidelines Commission to permit the imposition of a
fractional sentencing duration when one results from the calculation provided in guideline
2.C.1. Accordingly, the district court did not err in sentencing Andersen to a fractional
sentence duration.
B. Three-Month Custody-Status Enhancement
The sentencing guidelines provide that when sentencing a defendant for an offense
and “(1) at least one- half custody status point is assigned; and (2) the offender’s total
Criminal History Score exceeds the maximum score on the applicable Grid (i.e., 7 or
more),” the district court must add an additional three months to the duration of any
presumptive sentence. Minn. Sent’g Guidelines 2.B.2.c (2022). Because Andersen was
assigned a custody-status point—due to his incarceration at the time of this offense—and
because his full criminal-history score was greater than 6, this provision presumptively
applied to any sentence he received for this offense. And the district court here in fact
relied on this provision in sentencing Andersen to a consecutive sentence of 17.4 months—
three months longer than the maximum 14.4- month duration otherwise prescribed by the
sentencing range calculated pursuant to guideline 2.C.1.
Andersen argues that the addition of this three-month custody-status enhancement
to his sentence was error because the duration of his consecutive sentence for this offense
was required to be determined using a criminal-history score of zero . We agree, as does
the state.
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The guidelines unequivocally state that when imposing a permissive consecutive
sentence—such as was imposed here —the district court must “use a Criminal History
Score of 0 . . . to determine the presumptive duration” of that sentence. Minn. Sent’g
Guidelines 2.F.2.b. Because a criminal-history score of zero must be used when sentencing
a defendant to a permissive consecutive sentence, it follows that the defendant’s criminal-
history score must similarly be regarded as being zero for purposes of the three -month
custody-status enhancement provision. Moreover, doing so is in keeping with the
comments to the guidelines, which explain that the purpose of using a criminal-history
score of zero in these circumstances “is to count an offender’s criminal-history score only
one time in the computation of consecutive sentence durations.” Minn. Sent’g Guidelines
cmt. 2.F.202 (2022). Accordingly, we hold that the district court erred in applying this
enhancement to Andersen’s sentence and in imposing a sentence greater than the maximum
permissible duration of 14.4 months. We therefore reverse Andersen’s sentence and
remand for resentencing consistent with this opinion.
V. Andersen’s pro se arguments do not merit relief.
In a pro se supplemental brief, Andersen raises multiple additional claims of error.
He first asserts that his underlying arrest in March of 2022 was unlawful and based on an
invalid warrant, that he was unlawfully transferred to a Minnesota Correctional Facility in
September of 2022, that the district court judge engaged in misconduct at a hearing in a
separate matter on November 29, 2022, and that he was denied his rights to counsel or self-
representation in other matters. These claims, however, relate to events that occurred prior
to the date of the charged offense in this case and Andersen fails to provide any authority
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establishing that they entitle him to relief in the current matter. Accordingly, we conclude
that these claims have been waived on appeal. See State v. Andersen, 871 N.W.2d 910,
915 (Minn. 2015) (“An assignment of error based on mere assertion and not supported by
any argument or authorities in appellant’s brief is waived and will not be considered on
appeal unless prejudicial error is obvious on mere inspection.” (quotation omitted)).
Andersen also makes claims regarding the current matter involving judicial bias, an
untimely omnibus hearing, ineffective assistance of counsel, discovery violations,
sufficiency of the evidence, and prosecutorial misconduct. We have reviewed Andersen’s
arguments and determine them to be either without record support, without legal support,
or without merit.
Affirmed in part, reversed in part, and remanded.