This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2581

 

 

State of Minnesota,

Appellant,

 

vs.

 

Phillip Craig Weyaus,

Respondent.

 

Filed August 15, 2006

Reversed and remanded

Minge, Judge

 

 

Sherburne County District Court

File No. K7-05-667

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Kathleen A. Heaney, Sherburne County Attorney, Arden Fritz, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for appellant)

 

John Stuart, State Public Defender, Michael W. Kunkel, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN  55414 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Minge, Judge.

 

 

 

U N P U B L I S H E D   O P I N I O N

MINGE, Judge

            On appeal from Phillip Weyaus’s first-degree driving-while-impaired sentence, the state argues that the district court erred by relying on this court’s decision in State v. Holmes, 701 N.W.2d 267 (Minn. App. 2005), to determine Weyaus’s criminal-history score.  Because the district court relied on precedent that has since been reversed, we reverse and remand for resentencing in accordance with State v. Holmes, __ N.W.2d __ (Minn. July 27, 2006).

FACTS

            On March 25, 2005, an officer stopped Phillip Weyaus’s vehicle for speeding.  Weyaus failed sobriety tests and was later charged with first-degree driving while impaired (DWI), first-degree test refusal, driving after cancellation, violation of a restricted driver’s license, and reckless driving.  In July 2005, Weyaus pleaded guilty to the first-degree DWI charge in exchange for dismissal of the other charges.

Previously, on March 2, 2005, Weyaus had been sentenced for a separate DWI offense that had occurred in October 2004.  In that case, the district court stayed his sentence and placed Weyaus on probation for four years.  But because of the new offense, Weyaus’s probation was revoked, and the sentence for the earlier offense was executed in September 2005. 

In October 2005, the sentencing that is now challenged occurred for Weyaus’s March 25, 2005, DWI offense.  In this proceeding, the presentence investigation calculated Weyaus’s criminal-history score as three.  With that score, Weyaus’s presumptive sentence would be 54 months’ imprisonment.  Weyaus argued that based on this court’s decision in State v. Holmes,701 N.W.2d 267 (Minn. App. 2005), a criminal-history score of one should have been used.  The district court agreed with Weyaus that Holmes mandated a criminal-history score of one, and, using that lowered criminal-history score, the district court sentenced Weyaus to the presumptive stayed sentence of 42 months, to be servedconsecutiveto the executed March 2 sentence.  The state appeals from the sentencing order, arguing that this court’s decision in Holmes should not be followed and that the district court used an incorrect criminal-history score.

D E C I S I O N

Interpretation of the Minnesota Sentencing Guidelines is a question of law, which we review de novo.  State v. Watkins, 650 N.W.2d 738, 741 (Minn. App. 2002).  The sentencing guidelines provide that “[f]or each presumptive consecutive offense sentenced consecutive to another offense[], a criminal history score of one, or the mandatory minimum for the offense, whichever is greater, shall be used in determining the presumptive duration.”  Minn. Sent. Guidelines II.F.  A consecutive sentence is presumptive when the conviction is of a crime committed by an offender serving a sentence or on conditional or supervised release.  Id.

Weyaus was convicted of first-degree DWI under Minn. Stat. §§ 169A.20, subd. 1(1), .24, subd. 1 (2004).  Sentences for DWI offenses arising out of separate courses of conduct must be consecutive.  Minn. Stat. § 169A.28, subd. 1(1)-(2) (2004).  This court recently held that, because section 169A.28 mandates a consecutive sentence, first-degree DWI constitutes a presumptive consecutive offense.  State v. Holmes,701 N.W.2d 267, 272-73 (Minn. App. 2005).  As a result, we held that the appropriate criminal-history score for a DWI offense committed while a defendant was under sentence on an earlier DWI offense is one.  Id. at 273.

            The supreme court, however, recently reversed our decision in Holmes.  State v. Holmes, __ N.W.2d __ (Minn. July 27, 2006).  The court held that, by its terms, the provisions of Minnesota Sentencing Guidelines II.F that allow for a lower criminal-history score do not apply to a consecutive sentence imposed under Minn. Stat. § 169A.28 (2004).  Id. at __, 2006 WL 2075132, at *4.  

            Because the district court relied on precedent that has since been overturned, we reverse and remand for resentencing in accordance with State v. Holmes, __ N.W.2d. __ (Minn. July 27, 2006).

            Reversed and remanded.