                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0585


                                 State of Minnesota,
                                     Respondent,

                                         vs.

                              Victor Dupree Whitehead,
                                      Appellant.


                              Filed December 8, 2014
                              Reversed and remanded
                                 Bjorkman, Judge


                            Mower County District Court
                             File No. 50-CR-13-1476

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

Kristen Nelsen, Mower County Attorney, Jeremy Clinefelter, Assistant County Attorney,
Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and

Toussaint, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                           UNPUBLISHED OPINION

BJORKMAN, Judge

       Appellant challenges his sentence for first-degree burglary, arguing that the

district court erred in calculating his criminal-history score because it assigned him points

for multiple out-of-state convictions when the state did not prove that he would have

received the same points if he had committed the offenses in Minnesota. We reverse and

remand.

                                          FACTS

       In January 2014, appellant Victor Whitehead pleaded guilty to first-degree

burglary based on an incident on July 7, 2013. Whitehead’s pre-sentence investigation

report (PSI) indicated a criminal-history score of 8, which included 4.5 points for five

Illinois felonies:

                                                                                Criminal-
 Date of                                                                         History
                 Offense       Case Number         Date and Disposition
 Offense                                                                          Points
                                                                                Assigned
 1/7/96     Delivery of        96CR0415101       8/6/96—5 years IDOC          1 point
            cocaine (0.19                        12/27/96—paroled
            grams)                               2/13/98—revoked, return
                                                 to prison
                                                 8/25/98—expired
 5/9/96     Receive/possess/ 96CR1555201         8/6/96—5 years IDOC     1 point
            sell stolen                          12/27/96—paroled
            vehicle                              2/13/98—revoked, return
                                                 to prison
                                                 8/25/98—expired
 5/9/96     Possession of      96CR1546101       8/6/96—3 years IDOC     0.5 points
            cocaine (0.73                        12/27/96—paroled
            grams)                               2/13/98—revoked, return
                                                 to prison
                                                 8/25/98—expired

                                             2
 5/27/97   Receive/possess/ 97CR1762501         2/10/98—4 years IDOC         1 point
           sell stolen                          5/4/99—paroled
           vehicle                              12/23/00—revoked,
           ------                               warrant issued               1 point
           Possess burglary                     5/24/01—expired
           tools


The state did not present additional evidence regarding the Illinois convictions, but

Whitehead did not dispute them and agreed that he has a criminal-history score of 8. The

district court accepted Whitehead’s plea and sentenced him to 92 months’ imprisonment,

the lowest presumptive sentence. Whitehead appeals.

                                    DECISION

      We review a district court’s determination of a defendant’s criminal-history score

for abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002),

review denied (Minn. Aug. 20, 2002). Interpretation of the sentencing guidelines is

subject to de novo review. State v. Campbell, 814 N.W.2d 1, 6 (Minn. 2012).

      In calculating a defendant’s criminal-history score, the district court assigns points

for every felony conviction for which a felony sentence was stayed or imposed before the

current sentencing, according to the current severity-level ranking of the prior offense.

Minn. Sent. Guidelines 2.B.1.a. Points are assigned for both Minnesota felonies and

felony convictions from other states. See Minn. Sent. Guidelines 2.B.5 (stating that

section 2.B.1 governs the use of out-of-state convictions); State v. Reece, 625 N.W.2d

822, 824-25 (Minn. 2001) (stating that the sentencing guidelines “require that an

offender’s felony convictions under the laws of other states be included in the offender’s

Minnesota criminal history score”). But points are not assigned for felony convictions


                                            3
that have decayed. See Minn. Sent. Guidelines 2.B.1.c (establishing 15-year felony decay

factor).

       The state must lay the foundation for a district court to use out-of-state convictions

in calculating a defendant’s criminal-history score. State v. Maley, 714 N.W.2d 708, 711

(Minn. App. 2006). “The state has the burden of proving by a preponderance of the

evidence ‘the facts necessary to justify consideration of out-of-state convictions in

determining a defendant’s criminal history score.’” State v. Outlaw, 748 N.W.2d 349,

355 (Minn. App. 2008) (quoting State v. Griffin, 336 N.W.2d 519, 525 (Minn. 1983)),

review denied (Minn. July 15, 2008). Generally, this means establishing that the prior

conviction was valid, the defendant was the person involved, and the crime would

constitute a felony in Minnesota. Griffin, 336 N.W.2d at 525. The district court then

assigns points to each out-of-state conviction based on “how the offender would have

been sentenced had the offense occurred in Minnesota at the time of the current offense.”

Reece, 625 N.W.2d at 825.

       Whitehead argues that the district court abused its discretion by assigning him

criminal-history points for all five Illinois convictions because the state did not prove that

(1) the current offense occurred less than 15 years after discharge or expiration of the

sentences for his first three Illinois convictions and (2) all five Illinois offenses were

separate behavioral incidents such that all five would receive felony sentences under

Minnesota law. Whitehead did not present these issues to the district court at sentencing.

Failure to raise an issue at trial generally results in waiver on appeal. Outlaw, 748

N.W.2d at 355. But as the state concedes, “a defendant may not waive review of his


                                              4
criminal history score.”    State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007).

Accordingly, we address each of Whitehead’s arguments in turn.

Decay

        The sentencing guidelines provide that a prior “felony sentence or stay of

imposition following a felony conviction must not be used in computing the criminal

history score if a period of fifteen years has elapsed since the date of discharge from or

expiration of the sentence to the date of the current offense.” Minn. Sent. Guidelines

2.B.1.c.   Whitehead argues that even though less than 15 years elapsed between

expiration of the sentences for his first three Illinois convictions (August 25, 1998) and

the current offense (July 7, 2013), the state did not prove that the Illinois sentences were

not earlier discharged. We disagree. The decay period runs from either discharge from a

sentence or expiration of a sentence.       Discharge typically refers to the successful

completion of probation, see, e.g., Minn. Stat. § 609.13, subd. 1(2) (2012) (convictions

deemed for lesser offenses if defendant placed on probation and “thereafter discharged

without a prison sentence”), while expiration typically refers to the completion of a

prison term and supervised release, see, e.g., State ex rel. Peterson v. Fabian, 784

N.W.2d 843, 846 (Minn. App. 2010) (stating that an inmate’s sentence expires upon

completion of the terms of imprisonment and supervised release). But either acts as a

cancellation or termination of the sentence. See Black’s Law Dictionary 495 (8th ed.

2004) (defining “discharge”); see also State v. Purdy, 589 N.W.2d 496, 498 (Minn. App.

1999) (stating that the expiration of a sentence “operates as a discharge”). Because the




                                             5
state established the expiration dates of the sentences in question, it satisfied its burden of

proof with respect to the decay factor.

Separate behavioral incidents

       Minnesota law generally bars multiple sentences for crimes that arise from a single

behavioral incident. Minn. Stat. § 609.035, subd. 1 (2012); State v. Bauer, 792 N.W.2d

825, 827 (Minn. 2011). Consequently, an offender convicted of multiple offenses based

on a single behavioral incident generally receives criminal-history points only for the

most serious offense.     See Minn. Sent. Guidelines 2.B.1 (requiring conviction and

sentence for assignment of criminal-history points); see also Minn. Sent. Guidelines

2.B.1.d.(1) (limiting assignment of criminal-history points even when an exception to

Minn. Stat. § 609.035 permits multiple sentencing).

       There are two tests for determining whether offenses arose from a single

behavioral incident; the test to be applied depends on whether the offenses involved are

intentional crimes. Bauer, 792 N.W.2d at 827-28. But both tests turn on the facts and

circumstances of the particular case. State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994);

see State v. Bookwalter, 541 N.W.2d 290, 295–96 (Minn. 1995) (stating that focus “is

primarily on the defendant’s conduct rather than the elements of the crimes committed,”

when determining if acts constitute a single behavioral incident). The state has the

burden of proving the facts that establish the divisibility of a defendant’s course of

conduct for purposes of assigning criminal-history points to out-of-state convictions.

State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983).




                                              6
       Whitehead argues that the state did not establish the divisibility of all five Illinois

convictions. This argument fails with respect to Whitehead’s first Illinois offense, the

January 7, 1996 delivery of cocaine. As the PSI indicates, that offense occurred four

months prior to the next two Illinois offenses. The fact that his first three convictions

were sentenced on the same day does not mean the offenses arose from the same incident.

We conclude that the state provided sufficient information to establish that Whitehead’s

first Illinois offense was a distinct behavioral incident.

       However, Whitehead’s argument has merit with respect to his remaining Illinois

convictions. The PSI indicates that Whitehead’s second and third Illinois offenses—

receiving, possessing, or selling a stolen vehicle and possessing cocaine—both occurred

on May 9, 1996.         But the offenses were charged separately, received separate

dispositions, and involve wholly distinct elements. In short, the offenses are neither

obviously part of the same behavioral incident nor obviously so distinct that they must be

independent. Cf. Mercer v. State, 290 N.W.2d 623, 626 (Minn. 1980) (holding that the

defendant could be sentenced for both the offenses of possession of a controlled

substance and unlawful possession of a handgun even though the offenses were

discovered at the same time because “nothing in the record reveals that either crime was

in furtherance of the other or that defendant had a single criminal objective”). This

record presents a fact issue as to whether Whitehead’s second and third offenses are

based on separate behavioral incidents.




                                               7
       The record concerning Whitehead’s fourth and fifth offenses—receiving,

possessing, or selling a stolen vehicle and possessing burglary tools—provides greater

support to Whitehead’s argument. The PSI indicates that he committed the offenses on

the same day, May 27, 1997. They also were charged in one case and, most critically,

appear to have resulted in a single sentence of four years’ imprisonment. And the state

concedes that the two convictions appear to “stem[] from the same incident.” This record

presents a fact issue as to whether Whitehead’s fourth and fifth offenses are based on

separate behavioral incidents.

       Having concluded that the district court may have erred by assigning criminal

points for each of Whitehead’s Illinois convictions, we turn to the matter of remedy.

Whitehead urges us to reverse and remand for resentencing, to allow the district court to

consider whether his Illinois convictions involved separate behavioral incidents. The

state contends that reversal and remand is improper because Whitehead did not raise

these issues at sentencing and even agreed to his criminal-history score, so the district

court acted properly on the record before it. And the state argues that Whitehead must

prove his sentence is illegal to obtain relief.    We are not persuaded by the state’s

argument.

       The state relies on caselaw requiring a defendant who challenges the validity of

prior convictions to indicate as much at sentencing so that the state can know what facts it

must prove to justify reliance on the convictions. See State v. Piri, 295 Minn. 247, 253-

54, 204 N.W.2d 120, 124-25 (1973). But the supreme court has since applied Piri more

narrowly to clarify that the state must prove a defendant’s prior convictions by a


                                             8
preponderance of the evidence but need not provide certified copies of convictions to do

so. Griffin, 336 N.W.2d at 525. And the court has expressly indicated that “a defendant

may not waive review of his criminal history score calculation” and therefore cannot

have his failure to object held against him. Maurstad, 733 N.W.2d at 146-48 (rejecting

argument that unobjected-to criminal-history score should be reviewed under plain-error

standard). Following Griffin and Maurstad, we have reversed and remanded a case

involving an unobjected-to criminal-history score when the state failed to satisfy its

burden of proof. Outlaw, 748 N.W.2d at 355-56 (permitting state to “further develop the

sentencing record” on remand “so that the district court can appropriately make its

determination”).

       The information in the PSI establishes that Whitehead’s second and third

convictions are for offenses that occurred on the same day, though they were charged

separately and received separate sentences, and his fourth and fifth convictions are for

offenses that not only occurred on the same day but were charged in the same complaint

and for which only one sentence is indicated. Whitehead may not have argued to the

district court that this evidence invalidated his criminal-history score, but the PSI plainly

raises a factual issue that the state is required to address and the district court is required

to resolve. Cf. State v. Goff, 418 N.W.2d 169, 172 (Minn. 1988) (requiring only “some

evidence” that prior convictions may be invalid “to put the state to its burden of proof”).

Accordingly, we reverse and remand for the district court to: (1) determine whether

Whitehead was sentenced for each of his second through fifth Illinois convictions and

whether each of the convictions would be sentenced under current Minnesota law,


                                              9
(2) recalculate Whitehead’s criminal-history score, and (3) resentence Whitehead if

necessary.

      Reversed and remanded.




                                        10
