This opinion will be unpublished and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,
Keith Bernard Reece,
Filed March 26, 2002
Randall, Judge, concurring in part, dissenting in part
Hennepin County District Court
File No. 98107597
Mike Hatch, Attorney General, 525 Park Avenue, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Klaphake, Judge.
Keith Bernard Reece appeals from a resentencing order issued by the district court after this matter was remanded by the supreme court. State v. Reece, 625 N.W.2d 822 (Minn. 2001) (Reece I), aff’g, 615 N.W.2d 852 (Minn. App. 2000) (Reece I). Reece argues that the district court erred when it concluded that his 1978 Texas murder conviction should be counted as an adult offense for purposes of calculating his criminal history score because Reece, who was 16 years old at the time, would have been certified as an adult under current Minnesota law. Because the district court properly followed the supreme court’s mandate in Reece I, we affirm.
The facts surrounding Reece’s current conviction for third-degree criminal sexual conduct are set out in Reece I, 625 N.W.2d at 823 and are not repeated here. A presentence investigation report completed prior to sentencing calculated Reece’s criminal history score at four: (1) two points for a 1978 murder conviction in Texas; (2) one point because he remained on parole for the 1978 offense at the time he committed the current offense; and (3) one point for a 1991 Minnesota felony conviction for second-degree assault. Reece did not challenge his criminal history score. See Minn. R. Crim. P. 27.03, subd. 1 (setting out procedure for challenging presentence investigation report).
At sentencing, Reece argued that mitigating factors warranted a downward durational departure from the presumptive sentence of 84 to 88 months. While the district court concluded that no mitigating factors existed to warrant departure, it examined Reece’s criminal history score and concluded that it was “overstated.” The court decided to treat Reece as if he had only two criminal history points and imposed a presumptive 68-month sentence.
The state appealed. This court reversed and remanded for resentencing. The supreme court accepted Reece’s petition for review and affirmed this court’s decision. The supreme court ordered the matter remanded for resentencing, stating:
The problem with the sentencing court’s actions and Reece’s contention is that the record in this case does not indicate that either the court or the parties focused on the nature and definition of the foreign [Texas] offense and the sentence received. Rather, the focus appears to have been on whether there were grounds for departure. Moreover, the court appears to have considered only how Reece would have been prosecuted in 1978 in Minnesota for the Texas murder. That is clearly inconsistent with the sentencing guidelines’ requirement that the sentencing court determine how the foreign offense would have been treated at the time of the current offense. Minnesota Sentencing Guidelines II.B.1.a. Thus, under these circumstances, remand to the sentencing court for resentencing is necessary. On remand, the sentencing court must examine Reece’s Texas offense and determine, in a manner consistent with the requirements of Minnesota’s current sentencing guidelines, how many criminal history points Reece should have.
Reece I, 625 N.W.2d at 825-26.
On resentencing, the district court concluded that under current Minnesota law, Reece’s conduct of repeatedly stabbing and killing a robbery victim would be treated as first-degree murder in Minnesota and automatically certify a 16-year-old as an adult. See Minn. Stat. § 609.185(3) (1998) (intentionally causing another’s death while committing or attempting to commit aggravated robbery); Minn. R. Juv. P. 18.08, subd. 1 (where 16- or 17-year-old child charged in adult proceeding with first-degree murder, juvenile court jurisdiction terminates all proceedings arising out of same behavioral incident). The district court thus assigned Reece two criminal history points for his prior Texas offense and, based on a total of four points, sentenced him to the presumptive sentence of 84 months. See Minn. Sentencing Guidelines II.B.1.a. (assigning two points to prior convictions for first-degree murder). We conclude that the district court properly followed the supreme court’s mandate in Reece I when it counted the 1978 Texas murder conviction as an adult offense.
On appeal, Reece states that the supreme court’s holding in Reece I is “erroneous because it creates two classes of defendants.” Reece explains that the first class consists of defendants who committed offenses while juveniles in Minnesota and whose criminal history scores were determined by the law that existed at the time the offenses occurred. The second class is composed of defendants like Reece, who committed offenses while juveniles in another state and whose criminal history scores are determined under current Minnesota law.
To the extent that Reece’s statement can be construed as raising an equal protection argument, that argument is being raised for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (issues raised for first time on appeal not generally considered). Because this constitutional argument was not briefed by either party or adequately addressed below, we may decline to address it on appeal. Cf. State v. Bradley, 629 N.W.2d 462, 464 (Minn. App. 2001) (appellate court may elect to review constitutional issue for first time on appeal in interests of justice, when parties have adequate briefing time, and when issue implied in district court), review denied (Minn. Aug. 15, 2001).
We further conclude that consideration of this issue may constitute an improper collateral attack on the supreme court’s decision in Reece I. See Mattson v. Underwriters at Lloyds, 414 N.W.2d 717, 719-20 (Minn. 1987) (issues determined in first appeal become law of the case and cannot be relitigated or re-examined on remand). The supreme court was quite explicit when it determined that the guidelines require a court to determine how an offender would have been sentenced had the offense occurred in Minnesota at the time of the current offense, “not when the offense actually occurred out of state.” Reece I, 625 N.W.2d at 825 (citing Minn. Sentencing Guidelines II.B.1.a.). The supreme court reasoned that “[a]pplying current Minnesota law to out-of-state convictions is consistent with the policy that all defendants prosecuted in Minnesota have their criminal history scores computed similarly.” Id. (citing Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992) (“[I]t would simply be unfair to those defendants receiving criminal history points for prior Minnesota convictions if their counterparts with prior foreign or out-of-state conviction of similar offenses for the same basic conduct did not receive criminal history points for those offenses.”)). Moreover, as the sentencing guidelines provision cited in Reece I makes clear, prior Minnesota convictions are weighed according to current severity levels. Minn. Sent. Guidelines II.B.1.a. (quoted in Reece I , 625 N.W.2d at 824). Because the supreme court considered the fairness of its decision to different groups of defendants, we cannot now second-guess that decision.
Finally, even if we consider Reece’s current argument, we do not believe that he was treated any differently from a juvenile defendant in Minnesota in 1978. Although Minnesota had no automatic certification for juveniles charged with murder in 1978, a district court could refer a juvenile for adult prosecution if it found that the juvenile was not amenable to treatment or if he was a threat to public safety. See, e.g., In re Welfare of J.B.M., 263 N.W.2d 74, 76 (Minn. 1978). Texas law at that time considered similar policies before transferring jurisdiction of a juvenile to adult court. See, e.g., L.L.S. v. State, 565 S.W.2d 252, 256 (Tex. Ct. Civ. App. 1978). Because Reece was transferred to adult court in Texas in 1978, we may assume that he would have received similar treatment under Minnesota law.
Because the district court’s decision on resentencing properly follows the mandate of the supreme court in Reece I, 625 N.W.2d at 825, we affirm.
RANDALL, Judge (concurring in part and dissenting in part).
I concur in part and dissent in part. I concur in the result because there is no constitutional impediment on these facts to giving this appellant criminal-history points for a 1978 Texas murder conviction. Appellant, 16 at the time, was charged with murder and under Texas law, certified to be tried as an adult, and convicted. The Texas record indicates that he was sentenced to 5 to 25 years in prison and paroled in 1986 (thus, it can be assumed that it was a valid conviction, either no appeal or an unsuccessful appeal). Thus, when appellant appeared in a Minnesota court in 2000 for sentencing on a felony, his Texas criminal-history score was computed accurately. He was given a criminal-history score based on a felony he committed in Texas and the felony in Texas was determined by what he did, where he did it, and the time he did it, meaning 1978. If that were the end of this case, the logic would be unassailable. People who commit state crimes in Texas, Alabama, or Iowa, etc. must answer for their alleged violation of the state's criminal code based on their conduct at the time they committed it. Defendants in foreign (other) states are not responsible for their criminal conduct under state statutes previously repealed and are not responsible for their criminal conduct under a different state's statutes that might be passed in the future, in their own state or any other.
Neither the state nor a defendant should argue with the proposition that a defendant is responsible for, but only responsible for, what he did, where he did it, on the date he did it. There can be no "fudging" in the construction of criminal statutes, and under long-established principles of leniency, ambiguous penal statutes (if ambiguity exists) are construed in favor of the defendant and against the state. See State v. Serstock, 402 N.W.2d 514, 516 (Minn. 1987) (stating doubts of legislature's intent regarding penal statute must be resolved in defendant's favor).
The problem with the issue of appellant's criminal-history score is that in his first appeal to this court, then in his appeal to the Minnesota Supreme Court, and now in this present appeal to this court, the analysis goes off on, not the objective, not what a defendant did, where he did it, and the date he did it, but on the totally subjective "what if the defendant had committed that out-of-state (foreign) offense here in Minnesota, just before the date of the present Minnesota offense for which he is being sentenced and what would a Minnesota sentencing court come up with as a present-day Minnesota conviction?"
That analysis comes from taking Minnesota Sentencing Guideline II.B.1.a literally:
[U]nder the sentencing guidelines the sentencing court, in its discretion, is to determine the weight to be accorded an out-of-state conviction after considering the nature and definition of the offense and the sentence imposed for the offense. [Minn. Sent. Guidelines cmt. II.B.504]. In doing so, the court must comply with the sentencing guidelines' mandate that the court determine how the offender would have been sentenced had the offense occurred in Minnesota at the time of the current offense, not when the offense actually occurred out of state. Id. II.B.1.a. ("The severity level to be used in assigning weights to prior offenses shall be based on the severity level ranking of the prior offense of conviction that is in effect at the time the offender commits the current offense.") (emphasis added). Applying current Minnesota law to out-of-state convictions is consistent with the policy that all defendants prosecuted in Minnesota have their criminal history scores computed similarly. Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992) ("[I]t would simply be unfair to those defendants receiving criminal history points for prior Minnesota convictions if their counterparts with prior foreign or out-of-state convictions of similar offenses for the same basic conduct did not receive criminal history points for those offenses.").
State v. Reece, 625 N.W.2d 822, 825 (Minn. 2001).
A literal interpretation of Minnesota Sentencing Guideline II.B.1.a sets that guideline at odds with the United States and Minnesota Constitutions. You see, both constitutions prohibit the enactment of ex post facto laws. U.S. Const. art. I, § 10; Minn. Const. art. I, § 11. To be ex post facto, a statute must
(1) punish as a crime an act which was innocent when committed; (2) increase the burden of punishment for a crime after its commission; or (3) deprive one charged with a crime of a defense that was available when it was committed.
State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995) (emphasis added) (citing Collins v. Youngblood, 497 U.S. 37, 52, 110 S. Ct. 2715, 2724 (1990)), review denied (Minn. July 20, 1995).
First of all, to get rid of the ridiculous notion that
[a]pplying current Minnesota law to out-of-state convictions is consistent with the policy that all defendants prosecuted in Minnesota have their criminal history scores computed similarly * * *
Reece, 625 N.W.2d at 825 (citation omitted), I can only point out that Minnesota does not even do that to its own citizens! For example, if a defendant appears in a Minnesota court today for sentencing on a current offense, and if the defendant has prior Minnesota misdemeanor DWI points on his record, they are computed as prior DWI misdemeanor criminal-history points. No one has yet to advance the bizarre theory that the sentencing court is required to retry a defendant's prior misdemeanor DWIs by 2002 standards, and if by 2002 standards a defendant would have had gross-misdemeanor points, he would now (for purposes of the present sentencing on the current offense) have DWI gross misdemeanor points (or even felony DWI points – both are now possible with the ratcheting up of penalties for multiple DWIs in the last few years). That would absolutely run afoul of the constitutional prohibition against increasing the burden of punishment for a crime after its commission. You see, when you add criminal-history points to a defendant's criminal-history score, you directly have increased the burden of punishment. When the guidelines are examined, the more criminal-history points a defendant has, the more months he spends in prison. Spending extra months in prison is direct punishment. It is not "collateral" or "incidental" (collateral and incidental being current judicial buzzwords for rationalizing certain kinds of punishment as "nonpunishment") or a "housekeeping measure" to insure that a criminal-history score is correctly computed. Extra months in prison are pure punishment. For precedent, talk to any inmate, man or woman, who has just been released from a state prison after 30 months and ask him if he would deem it collateral or incidential if he was now told he had to serve four more months before being released.
Then in Reece, the supreme court stated it would be
unfair to those defendants receiving criminal history points for prior Minnesota convictions if their counterparts with * * * out-of-state convictions of similar offenses for the same basic conduct did not receive criminal history points for those offenses.
625 N.W.2d at 825 (emphasis added) (quoting Hill, 483 N.W.2d at 61). The rationale behind that statement is not evident from the text. No one has ever argued, nor do I, that defendants in a Minnesota court for sentencing for a Minnesota offense should not receive any criminal-history points for a prior out-of-state conviction. What I am arguing is that a defendant in a Minnesota court with a prior out-of-state conviction should receive a criminal-history score for that conviction. That conviction is defined simply and honestly as the conviction for what that defendant did at the time and the place he did it. As stated above, what section II.B.1.a. allows, as interpreted by Reece, is a subjective wonderland where an out-of-state conviction gets a defendant a criminal-history score not for what he did at the time and place he actually did it, but for "what he might have gotten had he committed that out-of-state crime in Minnesota just prior to the Minnesota crime for which he is now being sentenced."
On the appeal before us, the majority correctly sets out appellant's constitutional argument. As appellant points out, the interpretation we presently give to section II.B.1.a. treats out-of-state defendants unfairly and unequally as compared to defendants whose prior criminal-history scores were based on crimes in Minnesota. If a defendant has a criminal-history score based on prior Minnesota crimes, as I pointed out above, the Minnesota sentencing court on the present offense does not retry prior offenses under current law and assign a different severity level if the severity level and/or the definition of the crime has changed since the defendant committed it. This is the only sensible course the judiciary can take with prior offenses because to retry or reassess a prior conviction of record for purposes of elevating a criminal-history score and enhancing the punishment runs right into the United States and Minnesota Constitutions' prohibition against enacting an ex post facto law.
As appellant succinctly points out, a juvenile with a prior offense in Minnesota will either have a juvenile point or a certified adult point, depending on what happened when he did it. That person now appearing in a Minnesota court for sentencing will not have his juvenile offense retried under today's standards. If his criminal-history points are increased, they would be a forbidden ex post facto points. Then appellant points out that the criminal-history scores for the second class (the inferior class) of defendants like himself who had a juvenile/certified adult point from another state or a prior offense will not be based on whatever criminal-history point, if any, they picked up in the other state, but will be based on their prior offense "being retried" in Minnesota under today's standards.
The majority acknowledges the argument but indicates that since it was neither briefed nor adequately addressed at the district court level, they declined to review it. In the interests of justice, I have just reviewed it. The issue is sitting there; it is based on undisputed facts, has been known to the Minnesota appellate court system for years, and should be addressed now before any more damage is done.
A point has to be made here about what I call a gross impropriety of ratcheting up someone's criminal-history score with a prior out-of-state conviction by having the sentencing court on the present offense retry it by today's standards. Once in a while, a defendant may be benefited. That is always permissible; the Crown is always entitled to show mercy, but it can never exact an injustice.
An example of how a district court at sentencing could tone down the impact of a prior out-of-state conviction is set out in State v. Marquetti, 322 N.W.2d 316 (Minn. 1982). In Marquetti, a defendant appearing in a Minnesota court in 1980 for a felony sentencing had on his record a conviction in Cuba when he was 16 years old for a burglary based on stealing chickens. Id. at 318. Cuban criminal records were not that clear, but apparently any distinction between a juvenile adjudication and a felony adjudication was blurred, and it did appear that the defendant had an old felony conviction from Cuba. The supreme court held that the 10-year-old offense should not translate into a felony point for the defendant's criminal-history score because if the defendant had been caught stealing chickens in Minnesota as a 16 year old, he probably would not have been certified for trial as an adult. Id. at 319. Thus, the defendant's criminal-history score was reduced from one point to zero and his sentence reduced from 32 to 24 months. Id. That was a perfectly appropriate case for the courts to show a little leniency and there it was called a criminal-history score recalculation, but it could easily have been done by the district court doing some modest "country justice" and departing slightly durationally downward.
If section II.B.1.a. was only used to mitigate downward, there would be no constitutional prohibition (the questionable habit of prosecuting attorneys appealing virtually every downward departure as a matter of rote, as if orchestrated mechanically, is a problem). However, the trend in Minnesota the last three decades has been to ratchet up penalties for crimes and, thus, all present day calculations of prior offenses are far more likely to enhance punishment for a prior offense (prohibited by the constitution), than to reduce punishment. A selective review at sentencings of prior out-of-state offenses for purposes of showing leniency is appropriate and in the tradition of any great body of law wherein compassion is a core holding. See Marquetti, 322 N.W.2d at 318-19. But it has to be confined to showing leniency. The present day interpretation of section II.B.1.a. leads to unconstitutional penalty enhancement. It did not in this case, which is why I can concur in the result. Appellant earned a bona fide criminal-history point in Texas for a murder where he was certified as an adult by Texas standards of that day. I see no inherent injustice in that. He committed the crime as a 16 year old in Texas, not in Minnesota, and for better or for worse, as Minnesota jealousy guards its own state statutes defining crimes and penalties, Texas is also so allowed to do.
1. Minnesota Sentencing Guideline II.B.1.a., when used to enhance a criminal-history score by retrying the facts of a prior out-of-state conviction under the assumption it was committed in the present day and thus increase punishment for the prior out-of-state offense, is a violation of the United States and Minnesota Constitutions' prohibition against the enactment of ex post facto laws.
2. The rationale of Minnesota Sentencing Guidelines' comment that this is needed to ensure that a defendant with a prior Minnesota conviction is treated the same as and as fairly as a defendant with a prior out-of-state conviction is a non-sequiter. We do not treat Minnesotans at sentencing for a present offense with a prior Minnesota criminal-history score that way. A defendant's prior Minnesota offenses carry the criminal-history score he earned back at that time, no more, no less.
3. The burden is on the state to prove a defendant's prior criminal-history score. State v. Griffin, 336 N.W.2d 519, 525 (Minn. 1983). All the state has to do is get an accurate and acceptable record of the prior offense from the other state and find out whether it was called a misdemeanor, a gross misdemeanor, or a felony at that time by that state. This is not difficult. Present that to the court and defense counsel and the state has established the prior conviction. There should be no burden on the sentencing court for the present offense to retry a prior out-of-state conviction. It is self-evident that when a Minnesota district court is asked to conduct a bench trial, it is nice to have the prosecuting attorney, the criminal-defense attorney, and all the witnesses in court and sworn under oath so the facts can be heard and the credibility assessed by the district court that will determine the defendant's guilt and severity thereof. None of that is present when a Minnesota district court at sentencing is presented with an out-of-state conviction and then asked to determine, "Well, what would this be, if it was tried in Minnesota today?"
4. When an assessment of a prior out-of-state conviction appears to lend itself to a harsh result, the sentencing court, as Marquetti points out, can make an adjustment downward in the interests of compassion and leniency.
I concur in the result because appellant ends up getting sentenced with an accurate criminal-history score based on a crime he committed in Texas where it was judged under Texas standards. I dissent from any part of the analysis that gives Minnesota Sentencing Guideline II.B.1.a. any credibility and legitimacy. It should be immediately scrapped and replaced with something sensible that does not offend the centuries-old constitutional prohibition against enhancing punishment for prior offenses by "after the fact," meaning ex post facto, laws.
 Although we do not have the benefit of briefing on the issue, we note that a rational basis likely exists to apply current Minnesota law to determine how many points Reece should receive for his 1978 crime. See, e.g., State v. Behl, 564 N.W.2d 560, 569 (Minn. 1997) (concluding that grand jury’s finding of probable cause necessary to automatically certify juvenile provides rational basis to sentence juvenile differently from other juveniles when juvenile was indicted but not convicted of first-degree murder); State v. Little, 423 N.W.2d 722, 725 (Minn. App. 1988) (concluding that guidelines provide rational basis for including juvenile adjudications in criminal history index), review denied (Minn. July 6, 1988). We note that current Minnesota law is applied in weighing prior Minnesota convictions. Minn. Sent. Guidelines II.B.1.a. Although the basis for this use of current law is not clearly stated, it may also extend to the treatment of prior out-of-state juvenile offenses that is at issue here.
 Reece complains that the record fails to establish that these safeguards were afforded him in Texas in 1978. We may assume, however, that Reece received all the constitutional and legal protections to which he was entitled, especially given the fact that after he was convicted by a Texas jury of first-degree felony murder and sentenced to 99 years in prison, he was granted a new trial and decided to plead guilty.
[The following notes are from the concurring/dissenting opinion.]
 State v. Reece, 615 N.W.2d 852 (Minn. App. 2000).
 State v. Reece, 625 N.W.2d 822 (Minn. 2001), aff'g 615 N.W.2d at 852.