This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-95-1542

State of Minnesota,

vs.

Nathan (NMN) Matanich,

Appellant.

Filed: May 28, 1996

Remanded

Amundson, Judge

Anoka County District Court

File No. K59412375

Hubert H. Humphrey, III, Attorney General, Suite 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Robert M. A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant Anoka County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for Respondent)

Leslie J. Rosenberg, Special Assistant State Public Defender, 2819 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

Appellant Nathan Matanich contends that the trial court made various errors in calculating his criminal history score and sentencing him for burglary and other offenses. We remand for resentencing.

FACTS

On September 19, 1994, appellant Nathan Matanich and Brian Loban went to the home of Ryan Pageau. Matanich was armed with a shotgun. Loban knocked on the kitchen door. Jason Merchant answered the door. Loban told Jason to let him in because he needed to speak with Ryan. Loban told Ryan, who was in the basement, that he was there to collect a drug debt. Ryan told him he did not have any money, but suggested that they go upstairs to see if his mother had any. Matanich stayed downstairs with Jason, and Loban went upstairs and talked to Ryan's mother. She told him she did not have any money. Loban agreed to take Ryan's stereo speakers as payment. The speakers were disconnected and taken to Loban's car. Matanich, armed with the shotgun, followed Ryan, Ryan's mother, and Jason to the car. After the speakers were loaded in the car, Matanich and Loban drove away and the three returned to the house.

After a jury trial Matanich was convicted of the following offenses and received the following sentences (in brackets):

Count I:
Aggravated Robbery
(Ryan Pageau)
(48 months)
Count II:
First-Degree Burglary
(assault on Jason Merchant)
(58 months)
Count III:
First-Degree Burglary
(assault on Ryan Pageau)
(78 months)
Count IV:
First-Degree Burglary
(assault on Joanne Pageau)
(88 months)
Count V:
First-Degree Burglary
(occupied dwelling)
(merged with other offenses)
Count VI:
First-Degree Burglary
(Dangerous Weapon)
(merged)
Count VII:
Kidnapping, safe release
(Jason Merchant)
(65 months)
Count VIII:
Kidnapping, safe release
(Ryan Pageau)
(65 months)
Count IX:
Kidnapping, safe release
(Joanne Pageau)
(65 months)

This appeal followed.

DECISION

More than One Burglary Conviction

Matanich argues that the trial court erred in sentencing him on more than one burglary conviction. See State v. Hodges, 386 N.W.2d 709, 711 (Minn. 1986) ("[T]he burglarious entry of one dwelling should justify only one burglary conviction"). The state agrees and properly notes that, on remand, the court will have to determine which burglary conviction to use for sentencing.

More than One Extra Conviction Per Victim

Matanich argues that the trial court could not sentence him on all three convictions involving Ryan Pageau (aggravated robbery, first degree burglary--assault, kidnapping--safe release). On remand, the trial court should sentence Matanich in accordance with Hodges. See Hodges, 386 N.W.2d at 711 ("[T]he commission of other crimes, such as assault or robbery, against the occupants of the dwelling after entry is made, may be additionally punished * * * on the basis of one extra conviction and sentence per victim of the other crimes * * *.").

Earlier Burglary Convictions

Matanich contends that the trial court improperly used his burglary convictions to increase his criminal history score when sentencing on later offenses. See Minn. Sent. Guidelines cmt II.B.102 ("When multiple current convictions arise from a single course of conduct and multiple sentences are imposed on the same day pursuant to Minn. Stats. '' 609.585 [burglary conviction not a bar to conviction of other crimes committed during burglary] or 609.251 [similar provision regarding kidnapping], the conviction and sentence for the 'earlier' offense should not increase the criminal history score for the 'later' offense."). On remand, the trial court should sentence Matanich in accordance with Minn. Sent. Guidelines cmt II.B.102.

Two Most Severe Offenses

Matanich argues that only his two most serious convictions, aggravated robbery and first-degree burglary (1.5 points each) can be used to enhance his criminal history score, and thus this case should have generated only a total of three criminal history points. The state agrees and properly notes that Matanich's criminal history score should not exceed three.