                          This opinion will be unpublished and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
                                     A14-1190

                                   State of Minnesota,
                                        Appellant,

                                           vs.

                                   Luis Armando Cubas,
                                       Respondent.

                                  Filed January 5, 2015
                                        Affirmed
                                     Peterson, Judge

                              Ramsey County District Court
                               File No. 62-K5-04-002593

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

John J. Choi, Ramsey County Attorney, Laura Rosenthal, Assistant County Attorney, St.
Paul, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant
Public Defender, St. Paul, Minnesota (for respondent)

         Considered and decided by Peterson, Presiding Judge; Hudson, Judge; and Larkin,

Judge.
                         UNPUBLISHED OPINION

PETERSON, Judge

       In this sentencing appeal brought by the state, appellant argues that the district

court erred by failing to include an out-of-state conviction in the calculation of

respondent’s criminal-history score. We affirm.

                                          FACTS

       Respondent Luis Armando Cubas was arrested after selling crack cocaine to an

undercover St. Paul police officer on July 7, 2004. He pleaded guilty to third-degree

controlled-substance crime under the terms of a plea agreement in which he waived the

right to challenge assignment of a custody-status point for sentencing purposes. The

district court accepted the plea. Respondent absconded while he was on personal release

pending sentencing, and he was not apprehended until April 2013.

       In June 2013, respondent moved to withdraw his guilty plea, arguing that the plea

agreement was invalid and unenforceable because he could not waive the right to

challenge his criminal-history score. The district court permitted respondent to withdraw

his plea, but this court reversed, ruling that the district court failed to consider potential

prejudice to the prosecution if respondent was permitted to withdraw his plea. State v.

Cubas, 838 N.W.2d 220, 225 (Minn. App. 2013), review denied (Minn. Dec. 31, 2013).

Before the district court could impose sentence, respondent was deported, and he waived

the right to appear at any further proceedings, including his sentencing hearing.

       A presentence investigation report (PSI) prepared in May 2013 enumerates

respondent’s prior felony convictions. In 2004, respondent was convicted in Minnesota


                                              2
of possession of burglary tools. The PSI also states that respondent was convicted of

“burglary” in California in 2003 and received a 270-day jail sentence and three years of

probation for that offense.1 Based on respondent’s criminal-history score of three, which

included two points for the prior felony convictions and one custody point for

respondent’s commission of the current offense while on probation for a prior offense,

the PSI reporter recommended that the district court impose the presumptive 39-month

executed sentence.

       At the sentencing hearing held in April 2014, the district court denied respondent’s

renewed motion to withdraw his guilty plea, finding that appellant would be prejudiced

by plea withdrawal because evidence had been destroyed during the time that respondent

was not in custody. The court addressed the issue of respondent’s criminal-history score

sua sponte and declined to assign respondent a criminal-history point for the 2003

California burglary conviction, stating:

                     This Court is not satisfied . . . that the August 2, 2003,
              what is listed as a felony burglary from San Bernardino
              County is, in fact, a burglary. Therefore, this Court is going
              to amend the worksheet to reflect that [respondent] has one
              felony point and one custody status point and two criminal
              history points, which give him a stayed sentence of 33
              months.

The district court noted that when respondent pleaded guilty to the California burglary, he

was sentenced to serve 270 days in jail and three years of probation, a sentence that the

district court had “difficulty understanding whether or not [it was] a felony and . . .

1
 The PSI lists among respondent’s prior convictions: “Felony: 08/02/03 Burglary. San
Bernardino, CA. On 9/22/03, the defendant [pleaded] guilty and was sentenced to three
years probation, 270 days jail, $25 fine, restitution.”

                                             3
should carry a [criminal-history] point.” Appellant asked for more time to determine

respondent’s correct criminal-history score, but the district court stated that it had “been

dealing with this for a year” and “had enough time to look at it.” Reducing respondent’s

criminal-history score from three to two resulted in a presumptive stayed sentence, rather

than a presumptive executed sentence. The district court stayed execution of sentence,

placed respondent on probation for five years, and ordered respondent to serve 110 days

in jail. This appeal followed.

                                        DECISION

       This court reviews the district court’s determination of an offender’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). The state has the burden to prove “the

facts necessary to justify consideration of an out-of-state conviction in determining a

defendant’s criminal history score.” State v. Outlaw, 748 N.W.2d 349, 355 (Minn. App.

2008) (quotation omitted), review denied (Minn. July 15, 2008). The state must establish

by a fair preponderance of the evidence that the prior conviction was valid, the defendant

was the person involved in the offense, and the offense is a felony in Minnesota. State v.

Griffin, 336 N.W.2d 519, 525 (Minn. 1983); State v. Jackson, 358 N.W.2d 681, 683

(Minn. App. 1984). This evidentiary standard “means that it must be established by a

greater weight of the evidence. It must be of a greater or more convincing effect and . . .

lead you to believe that it is more likely that the claim . . . is true than . . . not true.” State




                                                4
v. Wahlberg, 296 N.W.2d 408, 418 (Minn. 1980).2 A district court may assign criminal-

history points for a prior out-of-state felony conviction “only if [the out-of-state

conviction] would both be defined as a felony in Minnesota, and the offender received a

sentence that in Minnesota would be a felony-level sentence.” Minn. Sent. Guidelines

2.B.5.b (second emphasis added).3

       In Minnesota, a “felony” is defined as “a crime for which a sentence of

imprisonment for more than one year may be imposed.” Minn. Stat. § 609.02, subd. 2

(2014).   A burglary committed in Minnesota may be either a felony or gross-

misdemeanor offense, depending on the conduct involved.             Compare Minn. Stat.

§ 609.582, subds. 1, 2-3 (2014) (felony-level burglary offenses), with Minn. Stat.

§ 609.582, subd. 4 (2014) (gross-misdemeanor burglary offense). Fourth-degree burglary

is punishable by “imprisonment for not more than one year or to payment of a fine of not

more than $3,000, or both.” Minn. Stat. § 609.582, subd. 4. An offense that is defined to

include a prison sentence of “not more than a year” and a fine of “not more than $3,000”



2
  Once the state meets its burden of proof, the defendant may “challenge the fact of the
prior convictions or the validity of the presentence report,” and the district court then
must “adjourn the hearing and require the prosecution to produce evidence to establish”
the factual basis for using the prior convictions in the defendant’s criminal-history score.
State v. Piri, 295 Minn. 247, 253-54, 204 N.W.2d 120, 124 (1973).
3
  Modifications to the sentencing guidelines apply only to offenses committed on or after
the specified effective date. Minn. Sent. Guidelines 3.G.1 (2014). Thus, the guidelines
and offense definitions in effect when respondent committed the controlled-substance
offense in July 2004 apply. But because the same criteria for designating an offense
apply under the 2004 version and the current version of the sentencing guidelines and the
relevant offense definitions and sentence levels have not changed since respondent
committed the controlled-substance offense, we cite the current versions of the
sentencing guidelines and statutes.

                                             5
is a gross misdemeanor. Minn. Stat. §§ 609.02, subd. 4, 609.03(2) (2014). Therefore,

fourth-degree burglary is a gross misdemeanor.

       The PSI refers to the 2003 California offense as a “[b]urglary” to which

respondent pleaded guilty and for which he was sentenced “to three years [of] probation,

270 days [in] jail, [a] $25 fine, [and] restitution.” Because a “burglary” can be either a

felony or a gross-misdemeanor offense in Minnesota, the evidence that appellant offered

was not sufficient to show by a preponderance of evidence that the California conviction

would be a felony in Minnesota as required by Minn. Sent. Guidelines 2.B.5.b. And

because Minn. Sent. Guidelines 2.B.5.b states that an out-of-state conviction should be

included in the calculation of an offender’s criminal-history score only when the

conviction would be “both” designated as a felony offense in Minnesota “and” sentenced

as a felony under Minnesota law, appellant’s failure to meet the burden of proof on the

first prong is dispositive. The district court did not err by declining to include the

California conviction as a prior felony for purposes of calculating respondent’s criminal-

history score. 4

       Appellant also argues that the district court lacked authority to act sua sponte to

exclude the California conviction from respondent’s criminal history because “[n]either

[respondent’s] counsel nor [a]ppellant . . . ever raised concerns over [respondent’s]

4
  Appellant’s brief to this court includes references to extra-record evidence suggesting
that respondent’s California burglary would be designated as a felony offense under
Minnesota law. Because this evidence was not offered at the sentencing hearing, we
cannot consider it. Minn. R. Civ. App. P. 110.01 (limiting record on appeal to
“documents filed in the [district] court, the exhibits, and the transcript of the
proceedings”); see also Minn. R. Civ. App. P. 101.01 (applying appellate civil rules to
criminal appeals if “not inconsistent with the Rules of Criminal Procedure”).

                                            6
criminal history score.” The Minnesota Rules of Criminal Procedure permit the district

court at sentencing to “order a corrected worksheet submitted to the sentencing guidelines

commission” if “the court determines the guidelines worksheet or supplement is wrong.”

Minn. R. Crim. P. 27.03, subd. 1(B)(7)(e). Also, the supreme court has noted that it is

“the responsibility of probation officers and district courts to ensure the accuracy of every

defendant’s criminal history score” in order to achieve the sentencing guidelines’ purpose

of promoting uniform sentencing. State v. Maurstad, 733 N.W.2d 141, 147, 151 (Minn.

2007) (prohibiting criminal defendant from waiving review of criminal-history-score

calculation). For these reasons, the district court did not abuse its discretion by sua

sponte addressing the accuracy of respondent’s criminal-history score.

       Appellant argues that under State v. Reece, 625 N.W.2d 822 (Minn. 2001), this

court is required to remand for resentencing with a proper calculation of respondent’s

criminal-history score. In Reece, the supreme court remanded a case for resentencing

when the district court did not apply proper weights to the defendant’s prior out-of-state

convictions by reference to Minnesota law at the time of the current offense. Reece, 625

N.W.2d at 825-26. Here, the district court properly sentenced in accordance with the

sentencing guidelines based on the evidence presented, and it had no duty to grant a

continuance at the sentencing hearing to permit appellant to present additional evidence.

See State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980) (stating that it is within

district court’s discretion to grant or deny a motion for a continuance). As the district

court noted, the case had been pending before the district court for more than a year at the

time of sentencing; the PSI was also prepared about ten months before the sentencing


                                             7
hearing. See id. at 311-12 (upholding denial of motion for a continuance to subpoena a

witness when defense counsel could have subpoenaed the witness earlier).

      Affirmed.




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