This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Niyom Buthdy,


Filed December 30, 2003

Reversed and remanded

Minge, Judge


Rice County District Court

File No. K6-01-1893


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


G. Paul Beaumaster, Rice County Attorney, 218 Northwest Third Street, Faribault, MN 55021 (for respondent)


John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Wright, Judge.


 U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant pled guilty and was sentenced for second-degree assault and solicitation of a juvenile to commit a crime.  He now challenges his sentence on the ground that the district court erred in its assignment of too high a severity level for his prior conviction in California for possession of a controlled substance.  Because the state failed to meet its burden of establishing the equivalent Minnesota crime for prior felony convictions in other states, we determine the district court abused its discretion in finding that the Minnesota crime with a higher severity level was comparable, and reverse and remand for resentencing.


            The issue in this appeal is whether the district court abused its discretion in determining that appellant’s prior California conviction should be counted in his criminal history score at the same severity level as a Minnesota conviction for a fourth-degree controlled-substance crime.

Minnesota’s Sentencing Guidelines “provide uniform standards for the inclusion and weighting of criminal history information that are intended to increase the fairness and equity” in determining a defendant’s criminal history score.  State v. Reece, 625 N.W.2d 822, 824 (Minn. 2001) (quotation omitted).  The guidelines require that out-of-state felony convictions be included in a defendant’s Minnesota criminal history score.  Id.  “The state has the burden of establishing the facts necessary to justify consideration of out-of-state convictions.”  State v. Jackson, 358 N.W.2d 681, 683 (Minn. App. 1984).  The Minnesota Sentencing Guidelines provide that “the sentencing court, in its discretion, should make the final determination as to the weight accorded foreign convictions.”  Minn. Sent. Guidelines cmt. II.B.504.  This court reviews the district court’s determination for abuse of discretion.  Reece, 625 N.W.2d at 824.   

At the outset, the designation of an out-of-state conviction as a felony or less-serious level conviction is governed by, and should match, the offense definitions and sentences provided under Minnesota law.  Minn. Sent. Guidelines II.B.5.  The determination of the severity level of a prior out-of-state conviction also depends on the definition of that foreign offense, as well as the sentence imposed.  Minn. Sent. Guidelines cmt. II.B.504.  See also Reece, 625 N.W.2d at 825; Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992).  In determining the severity level of a controlled-substance conviction, “the amount and type of the controlled substance should . . . be considered.”  Minn. Sent. Guidelines cmt. II.B.101.  The guidelines also state that “where multiple severity levels are possible . . . but the information on the criteria that determine the severity level ranking is unavailable, the lowest possible severity level should be used.”  Id.

The district court determined that appellant’s California conviction was equivalent to a fourth-degree controlled-substance conviction in Minnesota, which makes it a crime if one “unlawfully possesses one or more mixtures containing a controlled substance . . . with intent to sell it.”  Minn. Stat. § 152.024, subd. 2(2) (2000) (emphasis added).  Appellant admitted that he served one year in prison for possession of a controlled substance in violation of § 11350 of the California Health and Safety Code.  Section 11350 provides that persons who possess any amount of a controlled substance shall be punished by imprisonment in the state prison.  Cal. Health & Safety Code § 11350 (2000).  The California statute under which appellant was convicted does not cover intent to sell a controlled substance or other more serious activities that would include selling or intent to sell.  Id.

Here, the state failed to introduce any evidence to establish the circumstances surrounding the out-of-state conviction and did not prove the facts necessary to determine that appellant’s conviction involved intent to sell cocaine.  The state failed to meet its burden of proving that appellant’s California conviction constituted a fourth-degree controlled-substance crime under Minnesota law.  Because the record does not contain any evidence to establish that appellant’s prior California conviction was predicated on possession with intent to sell a controlled substance, the district court abused its discretion in equating that conviction with Minnesota’s fourth-degree controlled-substance crime and in giving appellant a criminal history point of one.  Additionally, the district court abused its discretion by limiting its consideration of the California offense to only the sentence allegedly received without due consideration to the other circumstances that the state had the burden to prove.  Finally, we note that where ambiguity exists, the sentencing guidelines provide that the lowest possible severity level should be used.  Minn. Sent. Guidelines cmt. II.B.101.  The district court should have used the lowest possible severity level, which in this case would be the fifth-degree controlled-substance crime and would result in a one-half point increase to appellant’s criminal history score. 

We remand for resentencing under the Minnesota Sentencing Guidelines which reduces appellant’s sentence for second-degree assault from 33 months to 27 months.

Reversed and remanded.