This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Henry Hutchinson,



Filed May 15, 2007


Shumaker, Judge


Stearns County District Court

File No. K1-02-3549




Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101; and


Janelle Prokopec Kendall, Stearns County Attorney, Room 448, Administration Center, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)


John M. Stuart, State Public Defender, Lydia Maria Villalva Lijo, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414


            Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N


            When the district court sentenced appellant for a felony, it assigned one custody-status point to his criminal-history score, thereby increasing his sentence under the sentencing guidelines.

            Appellant argues that the court erred by adding the custody-status point because he was no longer on probation from a prior felony and that an amendment of the sentencing-guidelines policy that would allow the custody-status point could not be applied retroactively to him without violating the prohibition against ex post facto laws.

            Because appellant continued to be on probation when he committed the offense for which the custody-status point was added, and there was no violation of the ex post facto law prohibition, we affirm.


            In 1997, the district court sentenced appellant Henry Leon Hutchinson to imprisonment for 21 months after he pleaded guilty to a third-degree controlled-substance crime.  But the court stayed that sentence for 20 years and placed Hutchinson on probation under supervision of the probation department for that period, subject to various conditions.  The court also required, as a condition of probation, that Hutchinson serve 102 days in the county correctional facility but gave him credit for 102 days he had already served.

            Hutchinson violated his probation in 1998 in several respects as detailed by his probation officer.  Upon the probation officer’s recommendation and the state’s concurrence, the court refrained from revoking Hutchinson’s probation but rather continued his probationary status.

            On June 16, 2000, Hutchinson appeared in court again for another alleged probation violation.  He admitted the violation.  The court learned that Hutchinson had been incarcerated at various times for a total of 448 days, which was the presumptive period of incarceration had he originally been given an executed sentence.  The court then received this recommendation: “Your Honor, as of today he has served 448 days, give him credit for the time served, discharge probation as he has served all his time on this sentence.”  The court responded: “Then I am going to do exactly that.  I am going to give you credit for any amount remaining to be served on that outstanding sentence, order your release today.”

            When Hutchinson’s defense attorney commented that Hutchinson had made notable educational efforts, the court replied: “You are to be congratulated, Mr. Hutchinson.  Keep up the good work but obey the conditions of probation and don’t complicate your work.”

            In 2002, a jury found Hutchinson guilty of a second-degree controlled-substance crime, and the court released him on bail pending sentencing.  Hutchinson fled the jurisdiction and was extradited from Michigan two years later.  In sentencing him on the 2002 conviction, the court assigned one custody-status point to Hutchison’s criminal-history score based on the 1997 20-year probationary term.  The effect of that point was an increase in his prison term.

            Hutchinson objected to the assignment of the custody-status point and contends on appeal that the court erred in adding the point to his criminal-history score.


            Hutchinson contends that the district court erred in assigning a custody-status point to his criminal-history score because (1) his 1997 sentence was “in practical terms” executed at the 2000 probation-violation hearing; (2) the basis for the custody point was a 2002 rule change that could not properly be applied retroactively to him; and (3) because he was no longer on probation for the 1997 offense, the assignment of a custody-status point produced an absurd result.

            To the extent that Hutchinson raises questions as to the interpretation of the sentencing guidelines, we apply a de novo standard of review, treating such issues as questions of law.  State v. Rouland, 685 N.W.2d 706, 708 (Minn. App. 2004), review denied (Minn. Nov. 23, 2004).  We review the district court’s determination of Hutchinson’s criminal history and the application of that history to the sentencing guidelines for an abuse of discretion.  State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002).

            For felony convictions, Minnesota follows a determinate-sentencing scheme, employing an index and a grid to calculate “presumptive” sentences.  Minn. Sent. Guidelines II.A, B.  Once the offense is located on the “severity-level” index, the offender’s “criminal history,” consisting of prior adult and juvenile criminal records and “custody status” at the time of the current offense, is calculated by assigning points.  Id.  The offense severity and the criminal-history points are placed on the grid, and the presumptive sentence is thereby ascertained.  Minn. Sent. Guidelines IV.

            A custody-status point is given if, at the time of the offense to be sentenced, the offender was on probation, or on a bail release, or under some type of justice-system supervision.  Minn. Sent. Guidelines II.B.2(a).  A custody-status point is also assigned when the “current offense [occurred] within the period of the initial length of stay pronounced by the sentencing judge . . . .”  Minn. Sent. Guidelines II.B.2(c).  But in this latter situation, no custody-status point is given “if the probationary sentence for the prior offense is revoked, and the offender serves an executed sentence.”  Id. 

Sentence Execution

            Hutchinson argues that, when the district court gave him credit for all the incarceration time he would have been required to serve under the 1997 sentence, the court in effect executed his sentence.  He contends, therefore, that the custody-status policy does not apply.  This argument is without merit for two reasons.

            First, the custody-status policy becomes inapplicable when probation is revoked and the offender’s sentence is executed.  Nothing in the record shows that Hutchinson’s probation was revoked in 2000.  Although the court imposed no further sanction of incarceration for the violation, the court indicated that probation was to continue when it stated, “You are to be congratulated, Mr. Hutchinson.  Keep up the good work but obey the conditions of probation and don’t complicate your work.”  (Emphasis added.)

            When the district court assigned a custody-status point for purposes of the current sentence, it obviously viewed Hutchinson’s probation as continuing in effect.  We agree.  The most rational conclusion to be drawn from the court’s statement in 2000 that Hutchinson was to continue to “obey the conditions of probation” is that, even though the court might not have required further supervisory involvement by the probation department, the court was not revoking Hutchinson’s probation or discharging him from that probation.[1]  It is implausible that the court would discharge Hutchinson from probation and moments later direct him to obey the probationary conditions.  Furthermore, had Hutchinson and his attorney believed that Hutchinson was being discharged from probation, it is likely that one or the other would have asked the court to explain its directive that Hutchinson was to continue to comply with probationary conditions.

            The second problem with Hutchinson’s argument that the court executed his sentence is his failure to acknowledge what the actual sentence was.  The 1997 sentence was for 21 months, or approximately 635 days.  Hutchinson served 448 days, or 2/3 of that sentence, through various local incarcerations.  He thus served the amount of time that he initially would have been required to serve had he received an executed rather than a stayed sentence.  But even had he received an executed sentence, he would have been on supervised release for the remaining 1/3; and a violation of release conditions could have resulted in the requirement that he serve the remaining 1/3 in prison.  The commission of a felony would have unquestionably triggered a release violation, and Hutchinson’s sentence could have been executed to the full extent of 21 months.  That did not happen at the probation hearing in 2000.

Ex post facto Prohibition

            Hutchinson notes that in 1997 and 2000 the custody-status policy was stated to be that offenders were assigned “one point if they were under some form of criminal justice custody following a conviction of a felony . . . when the offense was committed for which they are now being sentenced.”  Minn. Sent. Guidelines cmt. II.B.201 (2000).  In 2002, the policy was stated to be that a custody-status point is assigned when the offense to be sentenced is committed “within the period of the initial length of stay.”  Minn. Sent. Guidelines cmt. II.B.201 (2002).  Hutchinson contends that this change in policy cannot be applied retroactively to him without violating the prohibition against ex post facto laws. 

            The premise of Hutchinson’s ex post facto argument is that his probation for the 1997 conviction was discharged in 2000 and “both the stayed 21-month sentence and the 20-year probation term . . . came to a definite end in 2000 . . . .”  We rejected that premise in our holding above as being at odds with the district court’s express admonition at the conclusion of the 2000 probation-violation hearing that Hutchinson should “obey the conditions of probation . . . .”  Hutchinson’s argument simply ignores that admonition and renders the court’s statement both gratuitous and absurd.  There can be no reason for a court that has fully discharged an offender from probation to direct the offender to continue to obey the conditions of a probation that no longer exists.  Thus, the premise of Hutchinson’s ex post facto argument is faulty and his contention is without merit.

Constitutional Issues

            Hutchinson also argues that the addition of the custody-status point violated his right to equal protection under the Fourteenth Amendment to the Minnesota Constitution.  Because he failed to raise this issue at any time in the district court, we need not address it on appeal.  See State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980) (explaining that “the constitutionality of a statute cannot be challenged for the first time on appeal”).




[1]  Curiously, the state appears to concede that Hutchinson’s probation was discharged but contends that it had not been revoked, and, thus, the exception to the custody-status policy does not apply.  The state’s concession, like Hutchinson’s argument, ignores the court’s advisory that Hutchinson should continue to obey his conditions of probation.