IN SUPREME COURT
Court of Appeals
Filed: July 27, 2006
Office of Appellate Courts
Frank E. Holmes,
S Y L L A B U S
The reduction of the criminal history score for presumptive consecutive sentences, as provided by Minnesota Sentencing Guidelines II.F, does not apply to the mandatory consecutive sentences for repeat DWIs required by Minn. Stat. § 169A.28 (2004).
Affirmed in part, reversed in part, and remanded for resentencing.
Heard, considered, and decided by the court en banc.
O P I N I O N
In this appeal, we are asked to construe the meaning of Minn. Stat. § 169A.28, subd. 1 (2004), which provides for mandatory consecutive sentencing for a felony driving while impaired (DWI) conviction where a defendant’s sentence on a prior gross misdemeanor DWI offense is executed at the time of sentencing for the felony DWI. Respondent Frank E. Holmes was on probation for a prior gross misdemeanor DWI offense when he was convicted of felony DWI. The district court imposed consecutive sentences, did not downwardly amend Holmes’ criminal history score, and sentenced Holmes to 66 months in prison on the felony DWI, the presumptive sentence for a felony DWI offender with a criminal history score of five. The court of appeals vacated Holmes’ 66-month sentence, concluding that Holmes’ criminal history score should be amended downward to one, and remanded for resentencing. We reverse the court of appeals in part, and remand to the district court for resentencing.
was arrested on September 29, 2003, after a traffic accident in
On March 22, 2004, the district court imposed a 66-month executed sentence to be served consecutively to Holmes’ previously imposed one-year sentence on the gross misdemeanor DWI, followed by five years on conditional release. The next day, the court found that Holmes’ felony DWI conviction constituted a violation of his probation on the gross misdemeanor DWI. The court ordered the one-year gross misdemeanor sentence executed consecutively to the 66-month felony DWI sentence that had been imposed the previous day (switching the imposed order of service of the sentences). The court also found Holmes in violation of his probation on two other convictions, and ordered the sentences executed concurrently with the previously imposed sentences.
appealed to the court of appeals on several issues, and the court of appeals determined
that: (1) the district court erred in
ordering the executed gross misdemeanor sentence to run consecutively to the
felony sentence, instead of the other way around; (2) the statutorily
mandated consecutive sentence for the felony DWI should be considered presumptively
consecutive as defined by Minnesota Sentencing Guidelines II.F because the
consecutive sentence was mandatory; and (3) section II.F should be applied, reducing
Holmes’ criminal history score to one to produce a presumptive 42-month stayed
felony sentence. State v. Holmes, 701 N.W.2d 267, 272-73 (
construction and interpretation of the sentencing guidelines are subject to de
novo review by this court. State v. Zeimet, 696 N.W.2d 791, 793 (
Minn. Stat. § 169A.28, subd. 1. Holmes was sentenced to 66 months in prison, the presumptive sentence for a felony DWI offender with a criminal history score of five. The district court executed Holmes’ one-year sentence for the previous DWI consecutive to the felony sentence.
question presented by this appeal is whether the duration of Holmes’ felony DWI
sentence should have been adjusted downward to 42 months under section II.F of
the Minnesota Sentencing Guidelines. Holmes concedes that the court of appeals
erred in determining that his sentence should be stayed. When an offender is convicted of multiple offenses, the
Minnesota Sentencing Guidelines presume that the sentences will be served
Consecutive sentences are a more severe sanction because the intent of using them is to confine the offender for a longer period than under concurrent sentences. If the severity of the sanction is to be proportional to the severity of the offense, consecutive sentences should be limited to more severe offenses.
There are three
types of consecutive sentences under the guidelines: presumptive, permissive, and a
The court of
appeals held that Holmes’ sentence under Minn. Stat. § 169A.28, subd. 1, was “a presumptive
consecutive sentence calculated using a criminal-history score of one,” even
though the court acknowledged that the consecutive sentencing provision
of the guidelines does not list consecutive sentencing under section 169A.28 as
a case in which either a presumptive or a permissive consecutive sentence may
be imposed. Holmes, 701 N.W.2d at 272-73. For felony DWI, a severity level seven
offense, the presumptive duration of the sentence with a criminal history score
of one is 42 months.
that “under the Minnesota Sentencing Guidelines, an offender’s criminal history
score is amended when a consecutive sentence is imposed.” Holmes essentially argues that consecutive
sentencing under section 169A.28 must
be classified under the guidelines as either presumptive, permissive, or a
We agree with
Holmes’ assertion that consecutive sentencing under section 169A.28 cannot be classified
as a departure because it is statutorily mandated. However, we do not agree with Holmes’ assertion
that consecutive sentencing under section 169A.28 must be imposed as either a presumptive or a permissive consecutive
sentence. Neither the text nor the
comments to section II.F address consecutive sentencing under section 169A.28
as a case in which either a presumptive or a permissive consecutive sentence
may be imposed. See
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.
The duration of Holmes’ sentence under the
guidelines, based on a criminal history score of five, including one custody status
point, is 66 months. Holmes’ criminal
history score is not amended downward under
We affirm the
court of appeals’ determination that Holmes’ felony DWI sentence should run
consecutively to the executed sentence for the violation of probation imposed on
the gross misdemeanor. Holmes, 701 N.W.2d at 272 (citing State v. Klang, 320 N.W.2d 718, 719 (
Affirmed in part, reversed in part, and remanded for resentencing.
 Holmes had been sentenced on January 3, 2002, to one year in jail on the first-degree DWI (which was, at the time, a gross misdemeanor). Execution of the sentence had been stayed, and Holmes had been placed on probation.
 Section 169A.24 is the mechanism by which a DWI violation becomes a felony. It provides that a person who commits a DWI violation under section 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 Act of June 1, 2006, ch. 260, art. 2, § 3, 2006
Laws ___, ___.) Minn.
 Holmes also had been charged with two gross misdemeanor counts that were later dismissed by the state.
 Holmes’ criminal history score also
included a misdemeanor/gross misdemeanor point.
Holmes points out that under this court’s holding in State v. Zeimet,prior criminal convictions should be used as predicates to enhance
Holmes’ September 2003 DWI offense to a felony under Minn. Stat. § 169A.24
before qualified civil incidents are allocated for the same purpose. State
v. Zeimet, 696 N.W.2d 791, 797 (
 The trial court did not specifically refer on the record to the January 3, 2002, sentencing, but that was the predicate offense for the application of section 169A.28 to Holmes’ sentencing.
 The court of appeals also held that sufficient evidence supported Holmes’ conviction, and that the district court’s assignment of a custody status point to Holmes because he was on probation did not violate Blakely v. Washington, 542 U.S. 296 (2004). Holmes, 701 N.W.2d at 273. We denied Holmes’ petition for cross-review of the constitutionality of the district court’s imposition of the custody status point and the sufficiency of the evidence supporting the felony DWI conviction.
 Under State v. Klang, it was improper for the sentencing court to order
the executed sentence for the previously imposed gross misdemeanor to run
consecutively to the later imposed felony DWI sentence. 320 N.W.2d 718, 719 (
 If section II.F in fact applies to
Holmes’ case, it requires that his criminal history score should be reduced
only for purposes of determining the presumptive duration of the consecutive sentence.
 Section 169A.28 has been amended to
allow concurrent sentencing under circumstances similar to those presented by
Holmes’ case. See Act of June 1, 2006, ch. 260, art. 2,
§ 4, 2006