This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed May 15, 2007
File No. K1-02-3549
Lori Swanson, Attorney General,
James B. Early, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St.
Paul, MN 55101;
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,
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
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.”
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
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.
D E C I S I O N
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
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.
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.”
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. It is implausible that the court would
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
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.
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”).