This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Tajuan Lamont Holloman,
Filed April 24, 2001
Ramsey County District Court
File No. K7-00-433
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan E. Gaertner, Ramsey County Attorney, Matthew C. Brady, Special Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
John M. Stuart, State Public Defender, Ann Brom McCaughan, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Hanson, Presiding Judge, Crippen, Judge, and Harten, Judge.
Appellant Tajuan Lamont Holloman challenges the sentence imposed after he pleaded guilty to assault in the second degree. Appellant argues that the district court erred in assigning to him a full criminal history point for a prior Massachusetts conviction. Appellant also argues that the district court abused its discretion in declining to grant a downward dispositional departure. We affirm.
Appellant pleaded guilty to a single count of second-degree assault. A pre-sentence investigation report prepared by the Ramsey County Community Corrections Department (Corrections) revealed that appellant’s criminal record included several Massachusetts convictions. Corrections initially submitted a sentencing worksheet indicating that appellant had eight criminal history points, but later revised that total to six points.
One of the Massachusetts convictions, adding 1.5 points to appellant’s criminal history score, was a December 1994 conviction for “Use of Firearm While Committing Felony.” At the sentencing hearing, the state presented a document purporting to detail appellant’s December 1994 multi-count convictions, including the “use of firearm” conviction. The document, purportedly issued by a Massachusetts trial court, showed that appellant had been found guilty of several criminal counts on which he had been sentenced to one-year concurrent periods of imprisonment. In 1997, however, the sentence for use of a firearm while committing a felony was revised to two years’ imprisonment.
The district court considered the duration of the revised sentence and compared the crime to Minnesota crimes. The court determined that, based on the two-year sentence imposed, the Massachusetts conviction would have been a felony under Minnesota law. The district court, however, reduced the weight attributed to the conviction from a 1.5 to a 1, finding that the Massachusetts charges were analogous to the Minnesota crime of simple robbery. Thus, the final sentencing worksheet showed appellant as having a criminal history score of 5.5. Accordingly, appellant received the presumptive sentence—a term of 49 months in the custody of the Commissioner of Corrections. Although appellant’s attorney requested a dispositional departure, the district court chose not to depart from the presumptive sentence.
D E C I S I O N
1. Criminal History Points
A sentencing court’s determination of a defendant’s criminal history score will not be reversed absent an abuse of discretion. See Bolstad v. State, 439 N.W.2d 50, 53 (Minn. App. 1989). A sentencing court’s determination may be reversed, however, if it “abuses its discretion in deciding whether or not to designate an out-of-state conviction as a felony for purposes of computing the defendant’s criminal history score.” Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992).
The state bears the burden of establishing facts necessary to justify consideration of out-of-state convictions for the purpose of calculating the defendant’s criminal history score. State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983).
The designation of out-of-state convictions as felonies, gross misdemeanors, or misdemeanors shall be governed by the offense definitions and sentences provided in Minnesota law.
Minn. Sent. Guidelines II.B.5. A sentencing court is to make such designations based on current Minnesota offense definitions and sentencing policies. Minn. Sent. Guidelines cmt. II.B.502. In determining the weight of the out-of-state conviction, a sentencing court should consider not only the offense definition, but also the nature of the offense and the sentence received by the offender. Minn. Sent. Guidelines cmt. II.B.504; see also Hill, 483 N.W.2d at 61.
Here, the state produced a record of appellant’s prior Massachusetts convictions. The record indicates that in December 1994, appellant received concurrent one-year sentences for several Massachusetts crimes, including assault with a dangerous weapon, discharge of a firearm within 500 feet of a building, assault and battery, breaking and entering at night for the purpose of committing a felony, and possession of a firearm without a license. Appellant was also sentenced for using a firearm during the commission of an act punishable by imprisonment, in violation of Mass. Ann. Laws ch. 265, § 18B (Law. Co-op. 1992 & Supp. 2000). At the time of appellant’s conviction, that statute read, in relevant part:
Whoever while committing an offense which may be punished by imprisonment in the state prison uses a firearm, rifle, shotgun or machine gun shall, in addition to the penalty for such offense, be punished by imprisonment in a jail or house of correction for not less than two years, or in the state prison for not less than two and one half years * * *.
Id. For this last conviction, appellant initially received a one-year sentence to be served concurrently with the other convictions. The record indicates, however, that in January 1997 the firearm sentence was revised to two years’ imprisonment in the state house of correction, presumably to conform with the statutory mandate that such acts require a minimum two-year sentence.
In Minnesota, a “felony” is defined as “a crime for which a sentence of imprisonment for more than one year may be imposed.” Minn. Stat. § 609.02, subd. 2 (2000). Minnesota law also provides for a minimum three-year sentence for any person who “had in possession or used” a firearm while committing certain crimes, such as simple robbery or burglary. Minn. Stat. § 609.11, subds. 5(a), 9 (2000).
The district court determined that the two-year Massachusetts sentence for appellant’s December 1994 firearm conviction would generate a felony point under Minnesota law and because the conduct there at issue could result in a sentence of more than one year under both Minnesota and Massachusetts law, the district court correctly determined that appellant should receive a felony point for the out-of-state conviction. See State v. Vann, 372 N.W.2d 750, 752 (Minn. App. 1985) (felony point for out-of-state conviction appropriate where defendant received sentence of one to three years in prison and conduct at issue would have been a felony in Minnesota), review denied (Minn. Sept. 26, 1985). We conclude that the district court did not err in assigning one point for the Massachusetts firearm conviction in computing appellant’s criminal history score.
2. Dispositional Departure
Appellant claims that the district court erred in declining to depart from the presumptive sentence imposed by the sentencing guidelines. The decision whether to depart from sentencing guidelines rests within the discretion of a sentencing court and will not be disturbed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
A sentencing court may order a downward departure from the presumptive sentence only if “substantial and compelling” circumstances warrant such a downward departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Only in a “rare case” would a sentencing court’s refusal to depart warrant reversal. Id. Furthermore, the mere fact that a mitigating factor is present in a particular case does “not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.” State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).
Here, appellant cites several cases in which an appellate court upheld a sentencing court’s decision to depart from the presumptive sentence. Appellant argues that he too is entitled to such a departure because of his age, his prior record, his remorse, and his cooperation and attitude with the court. Although some of these factors arguably apply to appellant, the presence of these factors did not obligate the district court to depart from the presumptive sentence. See id. Moreover, this is not the “rare case” in which it can be said that the sentencing court abused its discretion in declining to depart from the presumptive sentence. See Kindem, 313 N.W.2d at 7.
 It appears that the state did not produce a certified copy of appellant’s Massachusetts criminal record. However, a certified record is not an absolute requirement in determining a defendant’s criminal history score based on out-of-state convictions. See State v. Griffin, 336 N.W.2d 519, 524-25 (Minn. 1983).