This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Brent A. Anderson,



Filed January 2, 2007

Reversed and remanded
Crippen, Judge


Sherburne County District Court

File No. K5-05-1543


Lori R. Swanson, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Kathleen A. Heaney, Sherburne County Attorney, Arden J. Fritz, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)


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


            Considered and decided by Halbrooks, Presiding Judge, Stoneburner, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant pled guilty to first degree driving while impaired (DWI) in exchange for the state’s dismissal of two other driving-offense charges.  Appellant and the state further agreed on a 69-month sentencing cap with the understanding that appellant could argue for a lower sentence.  Appellant proposes a sentence consecutive to a prior unexpired felony DWI for which he was on supervised release, arguing that the district court erred in ordering a longer concurrent sentence.  Because a recent supreme court decision precludes the district court’s concurrent sentence, we reverse and remand for further resentencing, but we determine that the presumptive consecutive sentence, contrary to appellant’s expectations, would not be for a shorter duration.  


            An Elk River police officer responded to a citizen report of a truck driving down U.S. Highway 169 without its headlights on.  The officer observed the vehicle cross the fog line and initiated a traffic stop, identifying appellant Brent A. Anderson as the driver.  Appellant smelled of alcohol, slurred his words, displayed poor balance as he exited the vehicle, and had bloodshot and watery eyes.  Appellant refused field sobriety testing but took a preliminary breath test that registered a .191 blood alcohol concentration.

            The state charged appellant in Sherburne County with first-degree driving while impaired (DWI) in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24.2 (2004), and the complaint stated two related counts.  Appellant was on supervised release from a 2003 first-degree DWI conviction at the time of the current offense; this release occurred after appellant had served about half of the 2003 sentence.  Entering a plea agreement, appellant pled guilty to the first stated count, and the state dismissed the other two counts.  Appellant agreed to a 69-month sentencing cap with the understanding that he could argue for a lower sentence.  Appellant’s offense was enhanced to a felony because of his 2003 felony DWI conviction.[1]  Appellant denied some of the incidents appearing on his record between 1997 and 1999 that formed the state’s alternative theory of enhancement.  The plea agreement was premised on opportunity to present to the court an argument for a shorter sentence, which could occur either as a downward durational departure or through appellant’s contention that his criminal history score be reduced. 

            Appellant’s criminal history score was computed as 6, including one custody status point for appellant’s supervised release status at the time of the current offense, and 1.5 points for appellant’s 2003 felony DWI.  The other 3.5 points resulted from two undisputed aggravated robbery convictions (1.5 points each) and another undisputed felony of fleeing a police officer in a motor vehicle (.5 points).

            At the sentencing hearing, appellant proposed and the district court rejected a 42-month consecutive sentence, and the court ordered a 69-month concurrent sentence.


            On appeal, the reviewing court “may review the sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.”  Minn. Stat. § 244.11, subd. 2(b) (2004).  Whether a statute or a provision of the sentencing guidelines has been properly construed is a question of law to be reviewed de novo.  State v. Zeimet, 696 N.W.2d 791, 793 (Minn. 2005). 

            As appellant contends, since he was on supervised release from a prior offense at the time of the current charge, Minn. Stat. § 169A.28 (2004) mandates a consecutive sentence.[2]  When an offender is facing more than one sentence, the sentencing guidelines presume that the sentences will be served concurrently.  Minn. Sent. Guidelines II.F.  But in limited circumstances, the sentencing guidelines call for or permit consecutive sentences, and in those cases, as well as when a consecutive sentence is imposed as a departure, the offender’s criminal history score is amended downward to a score of one or zero, depending on whether the consecutive sentence is presumptive or permissive.  Id.  Appellant argues that his sentence should have been a 42-month consecutive sentence based on a reduced criminal history score of one.

            This court confirmed the anomaly that a consecutive sentence, which is usually more harsh, could result in a shorter sentence under Minn. Sent. Guidelines II.F.  State v. Holmes, 701 N.W.2d 267, 273 (Minn. App. 2005)In Holmes, this court stated, “we nonetheless hold that this statutorily mandated consecutive sentence is not a departure from the guidelines, and, because it is mandatory, we hold that it is a presumptive consecutive sentence calculated using a criminal-history score of one.”  Id.  The record permits a conclusion that the district court opted for the 69-month concurrent sentence under another portion of Minn. Sent. Guidelines II.F, which says that a concurrent sentence may be chosen instead of a presumptive consecutive sentence if it would produce a longer sentence.  See Minn. Sent. Guidelines II.F.[3]

In July 2006, the Minnesota Supreme Court reversed this court’s decision in Holmes,clarifying the interplay between Minn. Stat. § 169A.28 and Minn. Sent. Guidelines II.F.  State v. Holmes, 719 N.W.2d 904, 909-10 (Minn. 2006).

The statutory mandate of section 169A.28, subdivision 1, is straightforward: a court shall impose consecutive sentences for qualifying DWI convictions.  Therefore, we hold that the duration of an offender’s consecutive sentence imposed under Minn. Stat. § 169A.28, subd. 1, is measured by the offender’s criminal history score, which score is not amended downward under Minnesota Sentencing Guidelines II.F because by its terms section II.F does not apply to a mandatory consecutive sentence under Minn. Stat. § 169A.28.


Id. at 909.  Under the supreme court’s decision in Holmes, the district court here was mandated to provide a consecutive sentence, but, contrary to appellant’s expectations, the law provides that this sentence, like the concurrent sentence the district court imposed, be for a presumptive duration of 69 months, utilizing a criminal history score of 6. 

We reverse and remand for resentencing because the district court erred in opting for a concurrent sentence.  And because the plea agreement was premised at least partly on the mutual expectation that the court might entertain appellant’s argument for a 42-month sentence based on a criminal history score of 1, which is prohibited under Minn. Stat. § 169A.28 and Minn. Sent. Guidelines II.F, as clarified by Holmes, appellant has the opportunity on remand to ask that the district court vacate the plea agreement on the original complaint.  See State v. DeZeler, 427 N.W.2d 231, 235 (Minn. 1988) (holding that the district court erred in denying defendant’s motion to withdraw his guilty plea where there was mutual mistake as to defendant’s criminal-history score and crime’s presumptive, dispositional sentence).

            Finally, appellant offers an alternative argument that his criminal history score should be 4.5 rather than 6.  Despite guideline provisions to the contrary, appellant contends that the score of 6 is unfair because the 2003 felony DWI was used both to enhance the current charge to a felony as well as in the calculation of his criminal history score.  But appellant does not offer any authority for this court to disregard Minn. Sent. Guidelines cmt. II.B.601, which eliminates from the criminal history score some driving offenses that have not entered into enhancement of charges against appellant but specifically provides that “the prior felony DWI would be counted as part of the felony criminal history score.” 

Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]Minn. Stat. § 169A.24 (2004) is the mechanism by which a DWI violation becomes a felony.  It provides that a person who commits a DWI violation under Minn. Stat. § 169A.20 within 10 years of the first of three or more qualified prior impaired driving incidents, or a person who has previously been convicted of felony DWI, is guilty of a felony.  Minn. Stat. § 169A.24, subd. 1.  (The statute has recently been amended to provide additional prior convictions that will serve as a basis for a felony DWI.  See 2006 Minn. Laws ch. 260, § 3, at 734.)

[2]Section 169A.28, subdivision 1, states in relevant part: 

The court shall impose consecutive sentences when it sentences a person for:  . . . (2) a violation of section 169A.20 when the person, at the time of sentencing, is on probation for, or serving, an executed sentence for a violation of section 169A.20 . . . and the prior sentence involved a separate course of conduct . . . .

[3]The 69 month sentence is presumed on a criminal history score of 6 and an offense level of 7.  See Minn. Sent. Guidelines IV, V.