State of Minnesota v. Antonio Devell Johnson

STATE OF MINNESOTA
IN COURT OF APPEALS
A25-0094

State of Minnesota,
Respondent,

vs.

Antonio Devell Johnson,
Appellant.

Filed January 20, 2026
Reversed and remanded
Ede, Judge

Ramsey County District Court
File No. 62-CR-24-2858

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

John Choi, Ramsey County Attorney, Anna R. Light, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

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

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Ede, Judge.

SYLLABUS

To justify a district court’s inclusion of out-of-state convictions in a defendant’s

criminal-history score, the State of Minnesota does not satisfy its burden of establishing

the validity of the convictions and that the defendant was the person involved by relying

solely on a presentence investigation report that does not meet the standard set forth in

Minnesota Rule of Evidence 1005.
 OPINION

EDE, Judge

In this appeal from final judgments of conviction for first-degree aggravated

robbery, second-degree assault, and threats of violence, appellant challenges the district

court’s sentence, which relied on three unobjected-to out-of-state convictions in calculating

his criminal-history score. Because respondent did not satisfy its burden of establishing the

facts necessary to justify the district court’s inclusion of the out-of-state convictions in

appellant’s criminal-history score, we conclude that the court abused its discretion in

sentencing appellant. We therefore reverse and remand to allow respondent to further

develop the sentencing record in the district court.

FACTS

Respondent State of Minnesota charged appellant Antonio Devell Johnson with

aggravated robbery, in violation of Minnesota Statutes section 609.245, subdivision 1

(2022), second-degree assault, in violation of Minnesota Statutes section 609.222,

subdivision 1 (2022), and threats of violence, in violation of Minnesota Statutes section

609.713, subdivision 1 (2022). The matter proceeded to a court trial. The district court

found Johnson guilty of all three charged offenses and ordered the completion of a

presentence investigation report (PSI). 1

1
Materials filed as confidential in the district court remain nonpublic on appeal. Minn. R.
Civ. App. P. 112.02, subd. 1. But we are not precluded “from mentioning the contents” of
confidential or sealed documents when the information is “relevant to the particular issues
or legal argument being addressed in the proceeding.” Minn. R. Pub. Access to Recs. of
Jud. Branch 4, subd. 4. We limit our recitation of the facts set forth in the PSI to the
information that is relevant to the issues and arguments presented in this appeal.

2
 The resulting PSI recommended that the district court assign Johnson six criminal-

history points, including two-and-one-half points for out-of-state convictions. “[B]ased

upon records made available to [Ramsey] Community Corrections,” the PSI described the

out-of-state convictions as follows:

05/22/10 Burglary – School / Daycare/ Place [of]
Worship. (Severity level 5; 1 pt) Cook County,
IL. 08/10/10, sentenced to 5 years imprisonment
– DOC and 2 years MSR; credit 82 days. Paroled
out: 04/15/11. Discharged: 05/08/12.
Court file 10CR-103100

• 720 ILCS 5/19-1 (A) is a class 1 felony [and]
is punishable [by] no less than 4 years and up
to 15 years. Based on [the] offense
description and sentence received, this
offense appears comparable to M.S.
609.582.2(b); Burglary – 2nd Degree.
• According to the criminal complaint,
Defendant knowingly entered a place of
worship: World Harvest Church, with the
intent to commit a theft.

05/31/11 Ct. 2) Knowingly Damage Property. (Severity
level 2; .50 pt) Cook County, IL. 08/31/11,
sentenced to 2 years imprisonment-DOC; 1 year
MSR, credit 93 days. Paroled out: 05/25/12.
Discharged: 01/18/13.
Court file 11CR-092830

• 720 ILCS 5.0/21-1-1-A is a class 4 felony
[and] is punishable [by] no less than 1 year
and up to 3 years. Based on [the] offense
description and sentence received, this
offense appears comparable to M.S.
609.595.1, Criminal Damage to Property.
• According to the criminal complaint, without
consent, Defendant damaged . . . land
surveyor equipment, exceeding $300
but . . . not exceed[ing] $10,000.

3
 09/09/12 Burglary. (Severity level 5; 1 pt) Cook County,
IL. 10/15/15, sentenced to 3 years imprisonment
– DOC; 2 year MSR; credit 419 days;
consecutive to 14CR1583301. Paroled out:
02/16/17. Discharged: 07/27/20.
Court file 12CR-175530

• 720 ILCS 5/19-1-(A) is a class 2 felony [and]
is punishable no less than 3 years and up to 7
years. Based on [the] offense description and
sentence received, this offense appears
comparable to M.S. 609.582.2(b); Burglary –
2nd Degree.
• According to the criminal complaint,
Defendant knowingly entered, without
authority[,] the property of M.N. through
[the] garage, with the intent to commit theft.

An accompanying sentencing worksheet lists the same recommended criminal-history

points for the foregoing out-of-state convictions. The PSI also includes a number of

hyperlinks under the heading, “Illinois, Cook County Clerk of Court - criminal complaint

and court documents,” but the links are to webpages about Illinois statutes rather than any

criminal complaint or document concerning the out-of-state convictions.

At sentencing, Johnson represented himself and was assisted by advisory counsel.

Johnson did not object to the assignment of criminal-history points based on the out-of-

state convictions. 2 But he did not admit facts relating to any of those convictions and did

2
The district court asked Johnson if he had had the opportunity to review the PSI and
whether he had any additions or corrections to it. Johnson responded: “I really don’t
understand how they got this. This seem[s] like it’s going against me more than . . . what I
spoke to the PSI agent [about]. But I see what they [have] on the paper . . . .” Johnson’s
advisory counsel challenged the presumptive sentencing guidelines range on an issue other
than criminal-history points arising from the out-of-state convictions, and the district court

4
not concede that the PSI’s descriptions of the convictions were accurate. The state relied

on the PSI in requesting that the district court impose a sentence within the presumptive

guidelines range and did not present any testimony or other evidence to establish the facts

necessary to justify the district court’s inclusion of the out-of-state convictions in Johnson’s

criminal-history score.

Consistent with the recommendation of the PSI, the district court determined that

the presumptive sentencing guidelines range was 104 to 141 months, with a presumptive

duration of 120 months, based on a 12-month enhancement under Minnesota Sentencing

Guidelines 2.G.13.b (Supp. 2023), an offense severity level of 8, and six criminal-history

points, which included one point each for the two Illinois burglary cases and one-half point

for the Illinois property-damage case. The district court sentenced Johnson to 104 months’

incarceration on the aggravated robbery charge—the lowest term within the presumptive

guidelines range. Although it convicted him of the second-degree assault and threats-of-

violence charges, the district court did not pronounce sentences on those counts.

Johnson appeals.

ISSUE

Did the state satisfy its burden of establishing the facts necessary to justify the

district court’s inclusion of the out-of-state convictions in Johnson’s criminal-history score

by relying solely on the PSI?

rejected that argument. Aside from requesting a downward durational departure, neither
Johnson nor his advisory counsel raised any challenge to the sentencing guidelines range.

5
 ANALYSIS

Johnson contends that the district court abused its discretion by including the three

out-of-state convictions in his criminal-history score. In the district court, Johnson did not

raise this issue. But “because a sentence based on an incorrect criminal history score is an

illegal sentence—and therefore, under Minn. R. Crim. P. 27.03, subd. 9, correctable ‘at any

time’—a defendant may not [forfeit] review of his criminal history score calculation.” State

v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007); see also State v. King, 990 N.W.2d 406,

420 n.7 (Minn. 2023) (“[A] right may be forfeited by the failure to make timely assertion

of the right, while waiver is the voluntary relinquishment of a known right.” (quotations

omitted)).

The state concedes that the district court abused its discretion by assigning points to

Johnson’s criminal-history score based on the PSI’s description of the conviction in Illinois

case number 11CR-092830 (“Knowingly Damage Property”) because the state did not

sufficiently establish the facts necessary to justify the court’s inclusion of that conviction.

But the state nonetheless maintains that the district court did not abuse its discretion in

relying on the PSI’s description of the convictions in Illinois case numbers 10CR-103100

(“Burglary – School / Daycare/ Place [of] Worship”) and 12CR-175530 (“Burglary”),

asserting that the PSI sufficiently establishes the facts of those convictions. We conclude

that, by relying solely on the PSI in this case, the state did not satisfy its burden of

establishing the facts necessary to justify the district court’s inclusion of all three out-of-

state convictions in Johnson’s criminal-history score.

6
 “We review determinations of a defendant’s criminal history score for [an] abuse of

discretion[,]” including challenges to the district court’s reliance on out-of-state

convictions. State v. Edwards, 900 N.W.2d 722, 727 (Minn. App. 2017), aff’d mem., 909

N.W.2d 594 (Minn. 2018). Although a district court may rely on out-of-state offenses when

calculating criminal-history points, see Minn. Sent’g Guidelines 2.B.5 (Supp. 2023), the

state must “lay[] foundation for the court to do so,” State v. Maley, 714 N.W.2d 708, 711

(Minn. App. 2006), and “has the burden at a sentencing hearing of establishing the facts

necessary to justify consideration of out-of-state convictions in determining a defendant’s

criminal history score,” State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983).

In particular, the state must “produce evidence to establish by a fair preponderance

of the evidence the validity of the prior convictions, the fact that the defendant was the

person involved, and that the crimes constituted felonies in Minnesota.” State v. Griffin,

336 N.W.2d 519, 525 (Minn. 1983). “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 of

366 days or more, which includes the equivalent of a stay of imposition.” Minn. Sent’g

Guidelines 2.B.5.b; see also State v. Pruitt, 16 N.W.3d 856, 860 (Minn. App. 2025)

(explaining the application of Minn. Sent’g Guidelines 2.B.5.b (Supp. 2021) in determining

a defendant’s criminal-history score). The state must satisfy its burden of establishing these

facts to justify a district court’s inclusion of out-of-state convictions in a defendant’s

criminal-history score, and the court abuses its discretion by including those convictions in

the absence of such proof.

7
 Establishing the validity of out-of-state convictions and that a defendant was the

person involved does not require the state to supply the district court with certified copies

of conviction records. See Griffin, 336 N.W.2d at 525 (rejecting the defendant’s argument

that, “whenever the defendant wants to put the state to its burden of proving a prior

conviction, the state must come forward with certified copies” as “an absolute requirement

because . . . it is apparently difficult to get certified copies from some places”). Instead, as

the Minnesota Supreme Court explained in Griffin, Minnesota Rule of Evidence 1005

provides the “appropriate standard” to document a conviction. Id. Rule 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 Rule 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.

Minn. R. Evid. 1005.

In Griffin, the supreme court affirmed the defendant’s sentence without requiring

the state to introduce a certified copy of the defendant’s out-of-state conviction because

“there was considerable documentation (which [was] appended to defendant’s brief)” that

the court held was “sufficient information to prove by a fair preponderance of the evidence

that defendant had [the] prior conviction.” 336 N.W.2d at 525. And in State v. Jackson, we

cited Griffin and affirmed the defendant’s sentence in the absence of a certified copy of an

out-of-state conviction that the district court included in the defendant’s criminal-history

score. 358 N.W.2d 681, 682–83 (Minn. App. 1984). We did so “[b]ased on the advice and

8
testimony given” by a probation officer who, without objection, “advis[ed] the court as an

officer of the court rather than as a sworn witness.” Id. at 683. The probation officer

provided “[o]ther evidence of the contents of official records” by describing his review of

two “federal presentence investigation[s],” “a letter from the Los Angeles County Sheriff’s

Department,” and “the Los Angeles Probation Department’s card file,” as well as

identifying information that the defendant had provided the probation officer. Id.

In Maley, however, we reached a different conclusion in considering the state’s

reliance on the PSI and its accompanying sentencing worksheet to justify the district court’s

inclusion of two out-of-state convictions—which were otherwise “undocumented” in the

sentencing record—in a defendant’s criminal-history score. 714 N.W.2d at 710–11. We

observed that “Griffin does not relieve the state of its burden to prove out-of-state

convictions by a preponderance of the evidence; rather, it permits the district court to rely

on persuasive evidence that sufficiently substitutes for the official, certified record of

conviction.” Id. at 712.

With that in mind, we reasoned in Maley that “the state failed to introduce evidence

sufficient to meet” the fair-preponderance-of-the-evidence standard because the sentencing

record did “not compare favorably” with that of Griffin, 336 N.W.2d at 525, where “in lieu

of a certified record of conviction [the state had] presented considerable documentation

that proved the defendant had been convicted of the out-of-state offense.” Id. (quotations

omitted). We also reasoned that the sentencing record in Maley “compare[d] unfavorably

with the state’s position” in Jackson, 358 N.W.2d at 683, in which the state had “provided

the district court with the in-court advice and testimony of the probation officer, who

9
detailed for the court the various documents from federal and state probation and law-

enforcement agencies verifying the defendant’s arrest, guilty plea, sentence, and his

identifying personal information.” Id. (quotation omitted). Because the supporting

evidence that the state presented in Maley was not admissible under rule 1005, we held that

the district court abused its discretion by including the out-of-state convictions in the

defendant’s criminal-history score. Id. at 712, 714–15.

Johnson convincingly argues that the district court abused its discretion in

calculating his criminal-history score based on the PSI’s description of the out-of-state

convictions. The state counters that “the detailed PSI” and its accompanying sentencing

worksheet were “sufficient foundation for including the out-of-state convictions in

[Johnson’s] criminal-history score” because the PSI purportedly identified, for each case:

the name of the offense; the jurisdiction; the date of the conviction; the length of each

sentence; the type of sentence; the date of parole; the date of discharge; the court file

number; the relevant Illinois statute; the comparable Minnesota statute; and a brief

description of the offense conduct set forth in the criminal complaint. We agree with

Johnson.

As in Maley, the “alleged [out-of-state] convictions are insufficiently documented

to augment [Johnson’s] sentence.” Id. at 714. The state relied solely on the PSI, which

generally mentions that its summary of Johnson’s criminal history is “based upon records

made available to [Ramsey] Community Corrections” and that the facts underlying the

convictions are “[a]ccording to criminal complaint” in each case. But the PSI does not

otherwise describe the sources of information showing that the out-of-state convictions

10
exist, nor does it establish that Johnson is the person convicted in each case. In fact, its

hyperlinks under the heading, “Illinois, Cook County Clerk of Court - criminal complaint

and court documents,” are not to the criminal complaints or documents concerning the

convictions; they are web pages about Illinois statutes.

The PSI is not a certified copy of the conviction records, it is unsupported by the

testimony of any witness “who has compared it with the original” conviction records, and

there is no showing that a copy of the conviction records complying with the rule “cannot

be obtained by the exercise of reasonable diligence.” Minn. R. Evid. 1005. As a result, the

PSI is not “evidence admissible under rule 1005 supporting the existence of

the . . . challenged [out-of-state] convictions.” Id. at 712. Along with failing “to establish

by a fair preponderance of the evidence the validity of the prior convictions,” the PSI does

not meet the rule 1005 standard as a basis for establishing “the fact that . . . [Johnson] was

the person involved” in each out-of-state conviction. Griffin, 336 N.W.2d at 525. By

relying solely on the PSI to establish the validity of the out-of-state convictions and that

Johnson was the person involved, without introducing other evidence that comports with

rule 1005, the state did not satisfy its burden to justify the district court’s inclusion of the

out-of-state convictions in Johnson’s criminal-history score.

The state’s citation to our nonprecedential opinion in State v. Bauer, No. A23-0769,

2024 WL 1613326, at *2 (Minn. App. Apr. 15, 2024), is unavailing because that case is

both nonbinding and distinguishable. See Minn. R. Civ. App. P. 136.01, subd. 1(c)

(“Nonprecedential opinions . . . are not binding authority except as law of the case, res

judicata or collateral estoppel, but nonprecedential opinions may be cited as persuasive

11
authority.”). In Bauer, we concluded that, based on the specific record before us, the district

court did not abuse its discretion by including out-of-state convictions in the defendant’s

criminal-history score. 2024 WL 1613326, at *2. We reasoned that the state had presented

a detailed PSI that contained “offense descriptions, case numbers, disposition dates,

sentencing information,” and, “[m]ore important, [the defendant] conceded the fact of his

convictions during his guilty-plea hearing.” Id. (emphasis added). Unlike Bauer, Johnson

never conceded the facts of the out-of-state convictions at issue here.

We are similarly unpersuaded by the state’s invocation of our nonbinding decision

in State v. Knowles, No. A17-0004, 2017 WL 6273124 (Minn. App. Dec. 11, 2017), rev.

denied (Minn. Feb. 28, 2018). In Knowles, we concluded that the state had met its burden

of proving the existence of the defendant’s out-of-state convictions when the PSI identified

each conviction and included “all the necessary information (e.g., descriptions of each

crime, relevant dates, value of property, and sentence received).” 2017 WL 6273124, at *5.

We cannot say that Knowles is analogous to this case because our decision in that case does

not elaborate on the nature of the information provided in the PSI.

Moreover, any persuasive value of our nonprecedential decision in Knowles is

overcome by the greater weight of our more recent nonprecedential caselaw, in which we

have applied Maley in reversing sentences when district courts relied solely upon PSIs and

accompanying sentencing worksheets. See, e.g., State v. Johnson, No. A23-1929, 2024 WL

4344822, at *1, *3–4 (Minn. App. Sept. 30, 2024) (concluding that the state “failed to

present any evidence related to [the defendant’s] out-of-state convictions” when it relied

on the PSI and sentencing worksheet to justify the district court’s inclusion of out-of-state

12
convictions in his criminal-history score), rev. denied (Minn. Jan. 21, 2025); State v. Henry,

No. A23-0827, 2024 WL 1613911, at *1, *3 (Minn. App. Apr. 15, 2024) (reasoning that

the state’s “burden is not satisfied when the state relies only on a PSI and the sentencing

worksheet,” and concluding that “[t]he district court . . . abused its discretion by

considering the out-of-state convictions” when “[t]he PSI and sentencing worksheet were

the only bases upon which the state relied to establish the out-of-state convictions”); State

v. Keltner, No. A21-0497, 2022 WL 764242, at *5–6 (Minn. App. Mar. 14, 2022)

(reasoning that “[t]he state’s reliance solely on statements in the PSI is similar to the

approach that this court deemed inadequate in Maley,” and concluding that “the state did

not meet its burden to establish the facts necessary to justify consideration of the [out-of-

state] conviction” and that “the district court [therefore] abused its discretion by including

that conviction in [the defendant’s] criminal-history score”), rev. denied (Min. App. May

31, 2022); State v. Smith, No. A20-0138, 2020 WL 7688601, at *1, *3–4 (Minn. App. Dec.

28, 2020) (concluding that, because the state relied only on the sentencing worksheet, “the

record [did] not include evidence of [the defendant’s] federal conviction that complies with

rule 1005” and “the district court abused its discretion by assigning points to [the

defendant’s] criminal-history score in relation to [that] conviction”).

We therefore hold that, to justify a district court’s inclusion of out-of-state

convictions in a defendant’s criminal-history score, the state does not satisfy its burden of

establishing the validity of the convictions and that the defendant was the person involved

by relying solely on a PSI that does not meet the standard set forth in rule 1005.

13
 In sum, we conclude that the PSI does not—as we explained in our precedential

opinion in Maley—establish the facts necessary to justify the district court’s inclusion of

the out-of-state convictions in Johnson’s criminal-history score “by a greater weight of the

evidence” because it is not “of a greater or more convincing effect [that would] lead [a

person] to believe that it is more likely that the claim is true than not true.” 714 N.W.2d at

712 (quotation omitted). Thus, the state failed to meet its burden as to all three Illinois

convictions and the district court abused its discretion by including those convictions in

Johnson’s criminal-history score. 3

Johnson asks that we “remand for resentencing on [his aggravated robbery

conviction] to a bottom-of-the-box sentence based on a correctly determined criminal-

3
As an additional basis for reversal that applies to the inclusion of Illinois case number
11CR-092830 (“Knowingly Damage Property”) in Johnson’s criminal-history score, we
agree with the parties that, by relying solely on the PSI, the state did not establish that the
Illinois crime constituted a felony in Minnesota. See Griffin, 336 N.W.2d at 525. Although
the PSI states that the “offense appears comparable to [Minnesota Statutes section]
609.595.1, Criminal Damage to Property,” the information set forth in the PSI is
insufficient to satisfy the state’s burden. This is because, while the PSI describes the
offense as involving damage to “land surveyor equipment, exceeding $300 but . . . not
exceed[ing] $10,000,” the PSI does not specify the reduction in the equipment’s value, as
measured by the cost of repair and replacement. Consequently, it is unclear whether the
dollar amount of property damage at issue would meet the requirements of the Minnesota
statute referenced in the PSI. See Minn. Stat. § 609.595, subd. 1 (2008) (as relevant here,
defining criminal damage to property in the first degree as including when “the damage
reduces the value of the property by more than $1,000 measured by the cost of repair and
replacement”). Because it relied only on the PSI and did not produce evidence that the
offense involved in Illinois case number 11CR-092830 is equivalent to Minnesota Statutes
section 609.595, subdivision 1, the state did not satisfy its burden of establishing the facts
necessary to justify the district court’s inclusion of one-half point in Johnson’s criminal-
history score for this out-of-state conviction.

14
history score.” 4 We decline to do so in light of “the great discretion vested in the district

court in sentencing matters” and our recognition under analogous circumstances that “not

every defendant who receives a top or bottom end of the presumptive range . . . need

necessarily receive a similarly situated sentence . . . when resentenced with a correct

criminal history score.” State v. Provost, 901 N.W.2d 199, 202 (Minn. App. 2017). Instead,

because Johnson did not object to the district court’s reliance on the out-of-state

convictions to calculate his criminal-history score, we reverse and remand to allow the state

to further develop the sentencing record so that the court can make a proper determination.

See State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008), rev. denied (Minn. July 15,

2008) (“The record indicates that appellant did not object to the district court’s

determination that his out-of-state convictions were felonies. Thus, on remand, respondent

is permitted to further develop the sentencing record so that the district court can

appropriately make its determination.”).

DECISION

To justify a district court’s inclusion of out-of-state convictions in a defendant’s

criminal-history score, the state does not satisfy its burden of establishing the validity of

the convictions and that the defendant was the person involved by relying solely on a PSI

that does not meet the standard set forth in Minnesota Rule of Evidence 1005. In this case,

the state failed to meet its burden as to all three Illinois convictions and the district court

4
“Each box in the Sentencing Guidelines grid contains a presumptive range and a
presumptive duration. The longest and shortest terms in the presumptive range are
commonly called the ‘top of the box’ and the ‘bottom of the box.’” State v. Morgan, 968
N.W.2d 25, 28 n.2 (Minn. 2021) (citations omitted).

15
abused its discretion by relying on the PSI alone to calculate Johnson’s criminal-history

score based on those convictions. Accordingly, we reverse and remand to allow the state

to further develop the sentencing record so that the district court can make a proper

determination.

Reversed and remanded.

16