This opinion will be unpublished and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

C3-01-119

 

State of Minnesota,

Respondent,

 

vs.

 

Booker T. Hodges,

Appellant.

 

Filed May 15, 2001

Reversed and remanded

Randall, Judge

 

Ramsey County District Court

File No. K7002179

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and

 

Susan Gaertner, Ramsey County Attorney, Philip C. Carruthers, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, Minnesota State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Peterson, Judge.

 

U N P U B L I S H E D O P I N I O N

R. A. RANDALL, Judge

Appellant challenges the district court's order sentencing him to 43 months in prison based on a criminal-history score of five, arguing that the district court erred in counting an Iowa conviction for "going armed with intent" as equivalent to second-degree assault in Minnesota, and therefore worth 1.5 criminal-history points. We agree and reverse.

FACTS

Appellant Booker T. Hodges was charged with third-degree criminal-sexual conduct and entered into a guilty-plea agreement with the prosecutor. At the guilty-plea hearing, appellant stated he anticipated a 39-month sentence. The prosecutor responded that the sentence would be at least 36 months; the actual length of the sentence would depend on the total of appellant's criminal-history points.

Appellant received 1.5 points for a past Iowa "going armed with intent" conviction on his sentencing worksheet. The worksheet equated the conviction to a second-degree assault conviction in Minnesota. When appellant learned of the assignment of 1.5 rather than 1 or .5 points as he anticipated, he challenged it because the presumptive sentence went up from the anticipated 39 months to 43 months.

At the October 24, 2000, sentencing hearing, appellant argued that the facts surrounding the Iowa conviction most closely reflected a Minnesota gross misdemeanor worth a criminal history score of 1 or .5. The district court reviewed the facts of the case, which it described as "essentially, a drive-by shooting," and noted that appellant received a five-year stayed sentence. Although the court acknowledged that the Iowa conviction was not equivalent to a second-degree assault, it ruled that the assignment of 1.5 points was appropriate. The court, in accordance with the plea agreement, sentenced appellant to 43 months, the presumptive sentence for a level-five offense and a criminal-history score of five. This appeal followed.

D E C I S I O N

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. The 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, the sentencing court should also consider the nature of the offense and the sentence received by the defendant. Minn. Sent. Guidelines cmt. II.B.504.

In this case, appellant pleaded guilty to "going armed with intent" in violation of Iowa Stat.  708.8 (1992) and aiding and abetting in violation of Iowa Stat. 703.1 (1992). On June 26, 1992, he was sentenced for an "indeterminate term not to exceed five years" with credit for 328 days served. The judgment for the remaining time was suspended until June 26, 1994. Thereafter, he was placed on probation and transferred to Minnesota.

A person who goes armed with any dangerous weapon with the intent to use without justification such weapon against the person of another commits a class "D" felony.

 

Iowa Stat. 708.8 (1992). A person guilty of a class "D" felony in Iowa "shall be confined for no more than five years, and [fined] not more than seven thousand five hundred dollars." Iowa Stat. 902.9 (1992).

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). Appellant does not dispute that the sentence he received for the Iowa conviction was a felony-level sentence; rather he argues the nature of his conviction does not support an addition of 1.5 points for the conviction, only 1 or .5. Appellant listed numerous felonies he believes are more comparable to the Iowa conviction than second-degree assault, each of which adds only 1 point to the criminal-history score.

Appellant argues that the court relied upon unproven facts in police reports when it sentenced him, while respondent argues appellant did not object to those facts. In McAdoo, 330 N.W.2d at 109, the supreme court found that the district court was "justified in relying on the police reports * * * in determining the circumstances of [the] convictions." Nonetheless, we reiterate that the state has the burden of establishing by a fair preponderance of the evidence that the prior crime constituted a felony in Minnesota. State v. Jackson, 358 N.W.2d 681, 683 (Minn. App. 1984). The police reports indicate that appellant was the driver of a car from which a passenger allegedly fired a gun at an intended target outside the car.

Appellant initially faced more serious charges, but ultimately pleaded guilty to just the charge of going "armed with intent." We are not satisfied that these facts support an equivalency to Minnesota's second-degree assault statute. First, the district court said it was "essentially, a drive-by" shooting. But, in Minnesota, a drive-by shooting would result in imprisonment of up to ten years and a fine up to $20,000. Minn. Stat. 609.66, subd. 1e(b) (2000). Thus, equating the Iowa crime to the Minnesota second-degree assault statute results in an imbalance.

Second, it is unclear precisely what factors support a conviction under the Iowa statute. "Going armed with intent" is a subjective crime at best. For instance, what if you get out of bed in the morning and put a gun in your pocket while thinking about the person with whom your spouse had an affair, have you committed a completed crime in Iowa at this point? What if you get dressed, walk out the door, but as you get in your car, you change your mind and go back inside the house? Is there an Iowa felony at that point? What if the person with whom your spouse had an affair lives five miles away, and after you drive two blocks in that direction, you change your mind? Do you have a completed Iowa felony? At least in Minnesota, some nexus between the defendant and the victim is required. See Minn. Stat. 609.222, subd. 1 (2000) ("Whoever assaults another with a dangerous weapon may be sentenced to imprisonment for not more than seven years or [fined] not more than $14,000, or both."). Out-of-state conviction designations are "governed by the offense definitions and sentences provided in Minnesota law." Minn. Sent. Guidelines II.B.5.

The district court acknowledged that there was no comparable Minnesota crime, including second-degree assault. Appellant agreed the sentence received for the Iowa conviction was a felony-level sentence, but listed numerous felonies that carry a weight of 1 or .5, which he argues is the fair weight to assign to him.

It is the burden of the state to establish by a fair preponderance of the evidence that the crime constituted a felony in Minnesota worthy of 1.5 points. We conclude that respondent failed to carry its burden, and therefore the district court improperly assigned 1.5 points for appellant's Iowa conviction. Because both parties and the district court agreed that a presumptive sentence was a condition of the guilty-plea agreement, we recalculate appellant's criminal-history score from five to four, which results in a presumptive sentence for appellant of 38 months.

We remand this case to the district court to make the downward modification of appellant's sentence from 43 months down to 38 months.

Reversed and remanded.