                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-1862

                          Kevin Mathew Erickson, petitioner,
                                     Appellant,

                                           vs.

                                  State of Minnesota,
                                     Respondent.

                                   Filed July 6, 2015
                                       Affirmed
                                    Hooten, Judge

                            Hennepin County District Court
                              File No. 27-CR-12-29419

Cathryn Middelbrook, Chief Appellate Public Defender, Sean Michael McGuire,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

       Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and

Reilly, Judge.

                        UNPUBLISHED OPINION

HOOTEN, Judge

       On appeal from the order denying his postconviction motion to correct his 30-

month prison sentence, appellant argues that his sentence was incorrectly calculated with
a custody status point and that the district court erroneously departed under the

sentencing guidelines. We affirm.

                                          FACTS

       On September 12, 2012, respondent State of Minnesota charged appellant Kevin

Mathew Erickson with financial transaction card fraud under Minn. Stat. § 609.821,

subds. 2(1), 3(a)(1)(ii) (2010).    The complaint alleged that Erickson had used or

attempted to use a credit card belonging to his deceased father to make more than $2,700

in unauthorized purchases. On August 20, 2013, Erickson entered into a plea bargain and

agreed to plead guilty and admit his status as a career offender in exchange for a 30-

month executed prison sentence. At the plea hearing, Erickson acknowledged that he had

read and signed the plea petition, understood that he was giving up his various trial rights,

and provided the factual basis for his guilty plea.

       Erickson then waived his Blakely rights, and his attorney questioned him about his

criminal history. Erickson acknowledged that with five or more prior felony convictions

he would qualify as a career offender, and specifically confirmed five of his prior felony

convictions while also admitting that he had “numerous other felonies.” He admitted that

his current conviction was part of a pattern of criminal activity based on its similarity to

his prior offenses. The district court accepted Erickson’s guilty plea and sentenced him

to a 30-month executed prison sentence in accordance with the plea bargain. The district

court then noted “for the record” that it would be stating on Erickson’s sentencing order

that “[t]he [d]efendant admits [c]areer [o]ffender status going into the future.”




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       On May 21, 2014, Erickson moved the district court pro se to correct his sentence

under Minn. R. Crim. P. 27.03, subd. 9, and his attorney later supplemented this motion

with a memorandum. Erickson argued that the district court failed to make sufficient

findings justifying the upward sentencing departure based on his career-offender status,

and that the record as a whole did not show that he met the criteria for career-offender

status. In a later letter to the district court, Erickson also alleged that he was erroneously

given a custody status point in the calculation of his presumptive sentence.

       The district court characterized Erickson’s motion as a petition for postconviction

relief and denied it without a hearing. This appeal followed.

                                      DECISION

       On appeal, Erickson challenges the postconviction court’s denial of his motion to

correct his sentence under Minn. R. Crim. P. 27.03, subd. 9. Because Erickson brought

his rule 27.03 motion seeking to correct a sentence he agreed to in a plea bargain with the

state, we construe his motion as a petition for postconviction relief under Minn. Stat.

§ 590.01, subd. 1 (2014). See State v. Coles, __ N.W.2d __, __, 2015 WL 1652901, at *5

(Minn. Apr. 15, 2015) (holding that a rule 27.03 motion to correct an agreed-upon

sentence entered as the result of a plea bargain “is properly viewed as a petition for

postconviction relief”). We review the denial of a petition for postconviction relief for an

abuse of discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012).

       While the parties primarily dispute whether the sentence imposed by the district

court was a proper upward departure from the sentencing guidelines, the dispositive issue

in this case is whether the 30-month sentence ordered by the district court even


                                              3
constitutes a departure. Accordingly, we will first address Erickson’s claim regarding his

proper presumptive sentence under the guidelines.

                                            I.

      Erickson first argues that he should not have been given a custody status point

under the sentencing guidelines. The presentence investigation report (PSI) in this case

reported that Erickson accrued a custody status point because he committed the instant

offense within the initial probationary terms of two sentences stemming from prior

convictions. Erickson contends that he should not have been given a custody status point

because these two sentences—one from December 2009, the other from November

2010—involved “phantom” three-year probationary terms, as both sentences provided for

Erickson to be discharged from probation after serving substantial local jail terms. He

claims that these sentences were “functionally identical” to executed sentences. He

asserts that, because he finished serving the associated jail time and was discharged from

probation in both cases before June 13, 2012, he should not have been assigned a custody

status point under Minn. Sent. Guidelines 2.B.2 (Supp. 2011).

      The postconviction court rejected this argument, finding that Erickson accrued the

custody status point because his June 2012 offense date fell within the three-year initial

probationary terms imposed in each case. We review the determination of a defendant’s

criminal history score for an abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561

(Minn. App. 2002), review denied (Minn. Aug. 20, 2002).

      Erickson is correct that both of his prior sentences contemplated his early

dismissal from probation upon his completion of jail sentences. But, the guidelines


                                            4
indicate that the custody status point is earned by an offender when the new offense is

committed “within the period of the initial probationary sentence.”            Minn. Sent.

Guidelines 2.B.2.b. The commentary to the guidelines expressly provides that early

release from probation does not commute or otherwise modify the probationary term for

purposes of calculating the custody point:

             The Commission has determined that the potential for a
             custody status point should remain for the entire period of the
             probationary sentence. If an offender receives an initial term
             of probation that is definite, is released from probation prior
             to the expiration of that term and commits a new crime within
             the initial term, it is clear that a custody point will be
             assigned.

Minn. Sent. Guidelines cmt. 2.B.201 (Supp. 2011) (emphasis added). While comments

to the sentencing guidelines are not binding, Asfaha v. State, 665 N.W.2d 523, 526

(Minn. 2003), we typically follow the commentary unless a comment contradicts the

clear and unambiguous language of the guidelines. State v. Rouland, 685 N.W.2d 706,

708–09 (Minn. App. 2004) (collecting cases), review denied (Minn. Nov. 23, 2004). We

see no contradiction here requiring us to deviate from the commentary and interpret the

guidelines as proposed by Erickson.

      In this case, the sentencing documents cited by Erickson in support of his

argument clearly show that he was initially sentenced to separate three-year probationary

terms for the prior offenses in question. The earlier of these two terms would have ended

on December 11, 2012, while the later term would have ended on November 22, 2013.

Because the June 2012 offense dates in this case occurred during the initial probationary

terms of two of Erickson’s prior sentences, he accrued a custody status point under the


                                             5
sentencing guidelines. Therefore, we conclude that the postconviction court did not

abuse its discretion by rejecting Erickson’s challenge to the district court’s calculation of

his presumptive sentence.

                                             II.

       Erickson raises several additional arguments characterizing the district court’s 30-

month sentence as an impermissible departure from the sentencing guidelines. However,

we need not reach these arguments because he received a guidelines sentence. “This

court will not generally review a district court’s exercise of its discretion to sentence a

defendant when the sentence imposed is within the presumptive guidelines range.” State

v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010).

We overturn presumptive sentences only in the “rare” case, and we will not “modify a

sentence within the presumptive range absent compelling circumstances.” Id. (quotations

omitted).

       As represented in the PSI and not challenged by Erickson on appeal, the offense of

financial transaction card fraud is a severity level 3, and Erickson has a criminal history

score of 12.    See Minn. Sent. Guidelines 5 (Supp. 2011) (providing that financial

transaction card fraud of over $2,500 is a severity level 3 offense). Under the guidelines,

that offense severity level and criminal history score result in a presumptive commitment

to state imprisonment for 23 months, with a range between 20 to 27 months. Minn. Sent.

Guidelines 4 (Supp. 2011). But, as we stated above, Erickson accrued a custody status

point because he committed the offense within the initial probationary terms of two prior

sentences. See Minn. Sent. Guidelines 2.B.2.b. If an offender already has six or more


                                             6
criminal history points, a custody status point adds three months to the presumptive

duration and range provided in the appropriate cell. Minn. Sent. Guidelines 2.B.2. Thus,

as calculated in his PSI, Erickson’s offense carried a presumptive commitment to state

imprisonment for 26 months, with a range inside the cell between 23 to 30 months. See

Minn. Sent. Guidelines 4.

         “A sentence within the range provided in the appropriate box on the sentencing

guidelines grid is not a departure from the presumptive sentence.” Delk, 781 N.W.2d at

428–29. Therefore, the 30-month prison sentence the district court imposed was not a

departure from the guidelines.      The record further indicates that the district court

proceeded under the assumption that its sentence was presumptive: the prosecutor

represented to the district court that this sentence was not a departure from the guidelines,

and the district court did not indicate that it was departing from the guidelines or file a

departure report to accompany its sentencing order. And, because the district court

imposed a presumptive sentence, the district court was not required to ascertain

“identifiable, substantial and compelling circumstances” and make the departure findings

Erickson alleges should have been made. Cf. Minn. Sentencing Guidelines 2.D (Supp.

2011).

         Because Erickson’s remaining arguments proceed under the erroneous assumption

that the district court upwardly departed in its sentence, these arguments must fail.

Therefore, the postconviction court did not abuse its discretion by denying his

postconviction motion.

         Affirmed.


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