June 2018

DATE: JUNE 2018

I. SENTENCING/CRIMINAL SEXUAL CONDUCT

A. ONLY ONE CUSTODY-STATUS POINT SHOULD BE ADDED TO SEX OFFENDER’S CRIMINAL HISTORY FOR NEW SEX OFFENSE WHERE OFFENDER DISCHARGED FROM PROBATION BUT REMAINS WITHIN ORIGINAL PROBATION TERM: In 1996, Appellant was convicted of second-degree criminal sexual conduct and placed on probation for 25 years. Appellant was discharged from probation in August 2012. He was then charged with and pleaded guilty to two counts of first-degree criminal sexual conduct for acts committed in May 2012 (count one) and February 2014 (count two). When calculating Appellant’s criminal history score for his first-degree sentencing, the district court assigned two custody status points on each count, for being within the “original probation term” of the 1996 sex offense, despite Appellant’s discharge from probation before the conduct underlying count two. Appellant challenges the district court’s sentence on count two, arguing only one custody-status point should have been added to his criminal history score. The Court of Appeals finds first that the district court properly assigned two custody-status points for count one under the version of the sentencing guidelines applicable at that time (2011 version), because (1) the offense was committed while Appellant was on probation, and (2) the new offense was a specific sex offense and was committed while he was under one of the custody statuses enumerated in section 2.B.2.a-d of the guidelines.
On count two, the 2012 revisions of the sentencing guidelines (effective August 1, 2012, to August 1, 2014) apply. The Court of Appeals concludes that the 2012 guidelines unambiguously provide for only one custody-status point on count two. The 2012 revisions provided that two custody-status points could be assigned only if the offender was under any of the listed custody statuses for another sex offense, which includes “probation,” but does not discuss an offender who has been discharged from probation. Computing the criminal history score of an offender no longer on probation is addressed in another section, which provides that only a single custody-status point should be assigned “if the offender is discharged from probation but commits an offense within the initial period of probation pronounced by the court.” The district court erred in concluding that the 2012 revisions were ambiguous and by looking to the 2014 amendments to determine the intent underlying the 2012 revisions. Reversed and remanded for resentencing on count two. State v. Donald Andrew Oreskovich, Sr., No. A18-0193, N.W.2d , 2018 WL 2770426 (Minn. Ct. App. Jun. 11, 2018).

B. BLAKELY FINDINGS REQUIRED TO VACATE STAY OF ADJUDICATION, IMPOSE PRESUMPTIVELY STAYED SENTENCE, AND EXECUTE SENTENCE: Appellant pleaded guilty to one count of third-degree criminal sexual conduct, received a five-year stay of adjudication, and was placed on probation with conditions. Appellant violated a number of the conditions and the district court “revoked” the stay of adjudication, imposed the presumptively stayed 36-month sentence, and then executed the sentence. Appellant challenges the executed sentence, arguing it is an unauthorized upward dispositional departure. Imposition of a presumptive sentence is mandatory, absent judicial findings, per Blakely, which requires that a jury find, or a defendant admit to, any fact, other than a prior conviction, that is necessary to support a sentence exceeding the presumptive sentence. Execution of a presumptively stayed sentence is a sentence requiring compliance with Blakely. The Court of Appeals rejects the district court’s finding that Appellant had been “sentenced” when he received a stay of adjudication, a sentence within the guidelines. A stay of adjudication is not a sentence, because no conviction is entered or sentence imposed. Appellant had not been sentenced until the district court vacated the stay of adjudication. While the district court made some findings, consistent with State v. Austin, 295 N.W.2d 246 (Minn. 1980), at the hearing it treated as a probation violation hearing, it did not make sufficient findings to satisfy Blakely and support its upward dispositional departure. Reversed and remanded for imposition of the presumptive guideline sentence. State v. Joel Evan Greenough, A17-1915, N.W.2d , 2018 WL 2770423 (Minn. Ct. App. Jun. 11, 2018).