Criminal History Calculation

Even though criminal history may go back several years, the Guidelines in effect when the current offense was committed must be used to determine the eligibility of and to assign the point or unit values for previous offenses. The only exception to this is when the offense severity level is determined by a monetary threshold. The weight assigned to the prior will be based on the severity level assigned when the monetary threshold was in effect.

The offense level (felony, misdemeanor etc.) is determined in part by the sentence imposed. See Minn. Stat. § 609.13. The definitions of offense levels is found in Minn. Stat. § 609.02 subd. 2-4a.

Felony
Gross Misd
Juvenile
Non MN
Custody
Enhanced Felony
Hernandizing

Felony
Eligible Prior Felony Offenses are offenses that received an imposed felony level sentence or a stay of imposition for a felony level offense prior to sentencing on the current offense(s). A prior felony offense is not eligible to be included in criminal history if fifteen years has lapsed since the date of discharge from or expiration of the sentence to the date of the current offense.
- NOTE: Even though a stay of imposition for a felony may result in the conviction being recorded as a misdemeanor in a prior record summary if the defendant successfully completes probation, for criminal history purposes it is entered as a prior felony on the worksheet regardless of the duration of probation pronounced.
Steps to Finding the Weight of a Prior Felony

Step #1 Use the Guidelines in effect when the current felony offense occurred.

Step #2 Find the Severity Level that is currently assigned to the prior felony offense.
- Prior drug convictions are not to be recalculated using post-August 1, 2016 drug threshold weights. For more information see the Weighting Prior Drug Offenses - Training Update page.
- Because the Commission issued a separate Sex offender Grid in 2006, a prior sex offense that was previously assigned a numerical severity level may have to be translated to an alpha severity level corresponding to the Sex Offender Grid if the current offense was committed on or after 8/1/2006.
- The monetary threshold for Theft and Theft-Related offenses was modified by the Legislature in 2007. Use the severity level assigned to the offense when it was originally sentenced to find the correct weight.
  - The previous threshold of over $500 is now over $1,000
  - The previous threshold of over $2,500 is now over $5,000
    
    Example: A Felony Theft of Property under Minn. Stat. 609.52, subd. 2(1) and subd. 3(2) in the amount of $2,700 would have been assigned a Severity Level 3 as a Theft over $2,500 prior to 2007. Since that is the same value as a Theft over $5,000 now, you would retain the Severity Level of 3 when assigning a point.
Step #3 Use the appropriate weighting scale based on the type of current offense. There are two weighting scales: one for offenses that will be sentenced using the Sex Offender Grid and the other for offenses that will be sentenced using the Standard Grid or Drug Offender Grid.

Assigning Felony Weights to Offenses with Modifiers: When a prior offense included a sentence modifier, such as attempt under Minn. Stat. § 609.17 or conspiracy under Minn. Stats. §§ 609.175 or 152.096, the prior conviction must be given the same felony weight as a completed offense.
Assigning Felony Weights to Unranked Offenses: If a prior offense is unranked, use the weight corresponding to the Severity Level assigned by the court sentencing the prior offense. If, however, a previously unranked offense was ranked at the time the current offense was committed, use the weight corresponding to the severity level assigned when the current offense was committed.

Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines 2.B.1.
(Gross) Misd.

Eligible Misdemeanor and Gross Misdemeanor Offenses are offenses that received an imposed misdemeanor or gross misdemeanor sentence or a stay of imposition for a misdemeanor or gross misdemeanor offense prior to sentencing on the current offense. A prior misdemeanor or gross misdemeanor offense is not eligible to be included in criminal history if ten years has lapsed since the date of discharge from or expiration of the sentence to the date of the current offense. Eligible priors include:

(1) targeted misdemeanor, as defined in Minn. Stat. § 299C.10, subd. 1(e):

(2) non-traffic gross misdemeanors;

(3) gross misdemeanor driving while impaired (DWI) or refusal to submit to a chemical test;

(4) gross misdemeanor reckless driving;

(5) a felony conviction resulting in a misdemeanor or gross misdemeanor sentence.

For offenses committed prior to August 1, 2010, the offense must be on the Misdemeanor and Gross Misdemeanor Offense List (which can be found in that year's guidelines). Eligible priors in the gross misdemeanor/misdemeanor section are generally assigned 1 unit; 4 units make 1 criminal history point.

Do not include misdemeanor or gross misdemeanor DWI convictions committed when the offender was 16 or 17 years old, even though the DWI was processed in adult court under Minn. Stat. § 260B.225, subds. 3 and 8.

Prior Misdemeanors/Gross Misdemeanors Used to Enhance the Current Offense
- Prior misdemeanors and gross misdemeanors used to enhance the current offense to a felony should not be listed in criminal history and are not eligible for units.
- If the current offense is a felony DWI, prior misdemeanors and gross misdemeanors used to enhance the current DWI, or any prior felony DWI, should not be listed in criminal history and are not eligible for units.
- When the current offense is a felony DWI or a Criminal Vehicular Operation (CVO) prior misdemeanor or gross misdemeanor DWIs and CVOs not used to enhance will be assigned 2 units.
Electronic Worksheet System Hint: Priors in the Misd./GM Section
In 2010, the Guidelines Commission eliminated the Misdemeanor and Gross Misdemeanor Offense List, and implemented a policy of allowing all gross misdemeanor and targeted misdemeanor offenses to be used in criminal history. If the date of offense is August 1, 2010 or later, make sure that any prior misdemeanors you are using are targeted misdemeanors as defined in Minn. Stat. 299C.10, subd. 1(e).

Minn. Stat. § 609.13 provides that even if the offense level is higher, the conviction will be deemed to be for a gross misdemeanor or misdemeanor if the sentence given is within those limits. Guidelines section 2.B.3 provides that these reduced convictions must be included in the misdemeanor/gross misdemeanor section of the criminal history score. Because the conviction level can depend on the sentence imposed, it is important to indicate the offense level on the worksheet after each felony offense sentenced as a gross misdemeanor or misdemeanor and after each gross misdemeanor sentenced as a misdemeanor. To help the worksheet move smoothly through the review process, indicate the conviction level by including (GM) for gross misdemeanor and (M) for misdemeanor. For example, if a felony theft offense is sentenced as a gross misdemeanor, if GM were indicated, MSGC staff would not need to place the worksheet on hold to check on the offense level.

Key Point: Although all felony level convictions sentenced to less than 1 year and 1 day are eligible to be used in the misdemeanor/gross misdemeanor section for 1 unit, this does not apply to gross misdemeanor offenses sentenced to a misdemeanor level duration. These offenses must be found on the Targeted Misdemeanor list in order to be assigned 1 unit.

Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines 2.B.3.
Juvenile
Eligible Prior Juvenile Offenses are felony-level offenses for which the juvenile was adjudicated delinquent prior to sentencing on the current offense. The juvenile adjudications must have been for offenses committed after the offender's fourteenth birthday and the offender must have been under the age of twenty-five when the offender committed the current felony. Each adjudication must have been for a separate offense or must have involved separate victims in a single course of conduct, except as provided in paragraphs 2.B.4.c and 2.B.4.d of the Guidelines, which state:

2.B.4.c - Single Course of Conduct / Multiple Sentences - When multiple adjudications for a single course of conduct were imposed under Minn. Stat. §§ 152.137, 609.585, or 609.251, only one offense may be used in the criminal history calculation.

2.B.4.d - Single Course of Conduct / Multiple Victims - When the prior adjudications involve multiple offenses arising from a single course of conduct involving multiple victims, include only the two most severe offenses in criminal history.

Criteria for Additional Juvenile History Points

An offender may receive only one point for juvenile adjudications, but the point limit does not apply to juvenile adjudications for offenses for which the Sentencing Guidelines would presume imprisonment if the offense had been committed by an adult.
- The additional offense must meet the criteria regarding age, offense type, and adjudication.
- The additional offenses must be presumptive commits, regardless of criminal history score.
  - What qualifies? Offenses at Severity Levels 8-12, Severity Levels D8-D9, and Severity Levels A-C, any other offenses for which the Guidelines presumes commitment (presumptive commit) (i.e., second or subsequent offenses, offenses with a statutory or mandatory disposition of commit). Minn. Sentencing Guidelines 2.C.
- Two juvenile priors are still needed to make the additional point.
- There is no limit to the number of points the offender can receive from these specific types of juvenile priors.
Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines 2.B.4.
Non-MN
An Eligible Non-Minnesota Offense is used in criminal history based on how it relates to Minnesota law and sentencing policies. Keep in mind, there is no special trick to equating a non-Minnesota offense to a Minnesota offense for criminal history. The final determination of how a non-Minnesota offense is used in criminal history is up to the court. This is especially important in situations where there is not sufficient information to equate the non-Minnesota offense to a Minnesota offense.

Section 2.B.5 - Convictions from Jurisdictions other than Minnesota
a. In General. The court must make the final determination as to whether and how a prior non-Minnesota conviction should be counted in the criminal history score. The court should consider, but is not limited to, the factors in paragraphs b through e, below. Sections 2.B.1 through 2.B.7 govern the use of these convictions.

b. How to Count. Find the equivalent Minnesota offense based on the elements of the prior non-Minnesota offense. The section in which to count the non-Minnesota offense in criminal history depends on:
- whether the offense is defined as a felony, gross misdemeanor, or targeted misdemeanor in Minnesota; and
- the sentence imposed.
An offense may be counted as a felony only if it would both be defined as a felony in Minnesota, and the offender received a sentence that in Minnesota would be a felony-level sentence, which includes the equivalent of a stay of imposition. The offense definitions in effect when the offense was committed govern the designation of non-Minnesota convictions as felonies, gross misdemeanors, or misdemeanors.

c. Assigning Felony Weights. Section 2.B.1 governs the weight of a prior felony conviction from a jurisdiction other than Minnesota, and must be based on the severity level of the equivalent Minnesota felony offense.

d. Federal Offenses; No Minnesota Equivalent. Federal felony offenses that received a sentence that in Minnesota would be a felony-level sentence, but for which no comparable Minnesota offense exists, must receive a weight of one in computing the criminal history score.

e. Juvenile Offenses from other Jurisdictions. Minnesota law governs the inclusion of a prior felony offense from jurisdictions other than Minnesota committed by an offender who was under 18 years old in the juvenile section or adult section of the criminal history score. The offense should be included in the juvenile history section only if it meets the requirements in section 2.B.4. The prior can be included in the adult history section only if the factfinder determines that it is an offense for which the offender would have been certified to adult court if it had occurred in Minnesota.

Helpful Tools: Accessing other States Statutes is the best way to gain information about an offense. The Legal Information Institute, housed at Cornell University Law School, provides links on its website to state statute resources across the country. For your convenience, here are direct links to the more common states: Illinois, Iowa, North Dakota, South Dakota, and Wisconsin. For federal offenses, the Office of the Law Revision Counsel provides a link to the United States Code. For finding the Minnesota statute, the Office of the Revisor of Statutes publishes statutes that can be searched by number or keyword.

Caution: Just because the non-MN offense says Theft of Property or Controlled Substance, there are certain thresholds found in statute that have to be met before the offense can be assigned a value in criminal history. For controlled substance offenses, both the drug and the amount will need to be known to find the Minnesota equivalent. This handout, MN Controlled Substance Thresholds, will assist you when you have that information in determining which degree of drugs the non-Minnesota prior should be equated to.

After determining a Minnesota equivalent offense, the prior offense may be eligible to be used in criminal history under the policies outlined in Minn. Sentencing Guidelines 2.B. For example, offenses equating to a felony in definition will be used in criminal history in accordance to the policies in 2.B.1 and statutory equivalents to gross misdemeanors and misdemeanors will be used in criminal history in accordance to the policies in 2.B.3. To determine if the offense should be used for a custody status, see the policies in 2.B.2.

Key Points

Remember that a non-Minnesota offense may be counted as a felony in criminal history only if it would be defined as a felony in Minnesota and the offender received an imposed sentence of at least 1 year and 1 day or the equivalent of a stay of imposition. If the prior offense meets the definition of a Minnesota felony but the offender received a sentence of less than 1 year and 1 day, Guidelines policies state that the offense can be used in the misdemeanor/gross misdemeanor section for 1 unit.

Unless the prior juvenile felony offense directly matches Minnesota's policies regarding age, type of offense, and adjudication of delinquency as stated in 2.B.4, the factfinder will have to make a determination as to whether or not the prior offense will be used in criminal history.

Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines 2.B.5.
Custody
A Custody Status Point is assigned when the offender, at the time of the current offense, meets all three of the conditions below:

1) The offender was under one of the following custody statuses:
- Probation
- Parole
- supervised release
- conditional release following release from an executed prison sentence
- release pending sentencing
- confinement in a jail, workhouse, or prison pending or after sentencing
- escape from confinement following an executed sentence
2) The offender was under one of the custody statuses above, after entering a guilty plea, guilty verdict, or conviction. This includes a guilty plea for an offense under Minn. Stat. § 152.18, subd. 1

3) The offender was under on of the custody statuses listed above for one of the following:
- Felony
- Non-traffic gross misdemeanor
- Gross misdemeanor DWI, refusal to submit to a chemical test, or reckless driving
- Extended Jurisdiction Juvenile (EJJ) conviction
- Targeted misdemeanor
TWO Custody Status Points are assigned if:

1) The current conviction offense is an offense on the Sex Offender Grid other than Failure to Register as a Predatory Offender; and

2) The offender qualifies for one custody status point (see above criteria) for an offense currently found on the Sex Offender Grid other than Failure to Register as a Predatory Offender
A Custody Status Point is NOT assigned if:
- The offender was committed for treatment or examination under Minn. R. Crim. P. 20.
- The offender was on juvenile custody status other than for an extended jurisdiction juvenile (EJJ) conviction, at the time the adult felony was committed.
- The offender was on a custody status for a misdemeanor or gross misdemeanor DWI committed when the offender was 16 or 17 years old, and the DWI was processed in adult court under Minn. Stat. § 260B.225, subd. 3 and 8.
Note: An additional three months must be added to the duration of the appropriate cell time, which then becomes the presumptive sentence when a custody status point is assigned and the offender's total Criminal History Score exceeds the maximum score on the applicable Grid (i.e. 7 or more). Three months must also be added to the lower and upper end of the presumptive sentence range. If the current conviction is an attempt, conspiracy, or other offense with a sentence modifier that reduces the presumptive sentence, the three months must be added to the cell duration before the duration is reduced as outlined in section 2.G. The presumptive duration, however, cannot be less than one year and one day.

Note: For offenses committed before August 1, 2010, misdemeanors were not eligible for a custody status point. Beginning August 1, 2010, only misdemeanors defined as targeted misdemeanor under Minn. Stat. § 299C.10 subd. 1(e) are eligible for a custody status point.

Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines 2.B.2.
Enhanced Felony
Enhanced Felony Offenses are offenses that are felonies solely because the offender has previous convictions for similar misdemeanor or gross misdemeanor offenses.

How to Calculate in Criminal History:
- Prior misdemeanors/gross misdemeanors used to enhance cannot be used in the calculation of a point for the offense they are enhancing.
- Priors used to enhance can be used to determine custody status.
- Unlike prior misdemeanor/gross misdemeanors, felonies used to enhance will be included in criminal history.
Enhanced Felonies in Future Offenses
For most enhanced offenses, such as Domestic Assault, the prior misdemeanor and/or gross misdemeanor offenses used to enhance are only removed from the felony they are enhancing. This means that for future offenses they can be used in criminal history along with the felony that was enhanced. The exception to this rule is felony DWI. Remember to always remove the three misdemeanor or gross misdemeanor DWI offenses used to enhance the DWI to a felony. Once those three are used to enhance, they are removed permanently from criminal history on any future felony DWI; they are eligible to be used on any other felony.

Electronic Worksheet System Hint: Note Offenses Used to Enhance
It is helpful to list the prior misdemeanor or gross misdemeanor offenses used to enhance the current felony in the Comments section of the worksheet. This way the worksheet reviewer will know which offenses were used to enhance the felony, and agents looking at the worksheet in the future will know which offenses may or may not be eligible for use in criminal history.

Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines 2.B.6.
Hernandizing
Hernandize is the unofficial term for the process described in Minn. Sentencing Guidelines 2.B.1.e of counting criminal history when multiple offenses are sentenced on the same day before the same court. For example, an offender is sentenced on the same day before the same court for two counts of theft. Count 1, having received a sentence before count 2, will now be incorporated or Hernandized into the criminal history score used when sentencing count 2. Because of the application of the Hernandize method, an offense does not have to be a true prior in order to be included in criminal history.

There are two circumstances in which the conviction and sentence for the earlier offense will not be used to increase the criminal history score of the later offense:
1. Multiple offenses arising from a single course of conduct involving a felony Burglary under Minn. Stat. § 609.585, Kidnapping under Minn. Stat. § 609.251, or Methamphetamine-related crimes involving a child or vulnerable adult under Minn. Stat. § 152.137.
2. Multiple offenses arising from a single course of conduct involving multiple victims.
  - In this situation, multiple offenses can be sentenced but only two offenses at the highest severity levels can be Hernandized.
Electronic Worksheet System Hint: Adding Offenses on the Same Worksheet
When multiple sentences are imposed at the same time, use Add Related Offense if there are multiple counts under the same case number, or Add Related Court Case when there are multiple case numbers.

Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines 2.B.1.