                        This opinion will be unpublished and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
                                   A15-1067

                             Antonio Medina, petitioner,
                                     Appellant,

                                         vs.

                                 State of Minnesota,
                                    Respondent.

                              Filed February 16, 2016
                                     Affirmed
                                  Randall, Judge *

                              Rice County District Court
                               File No. 66-CR-08-1423

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

John L. Fossum, Rice County Attorney, Terence Swihart, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)


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

Randall, Judge.




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                        UNPUBLISHED OPINION

RANDALL, Judge

       Appellant Antonio Medina challenges the district court’s denial of his motion to

correct his sentence under rule 27.03, subdivision 9, of the Minnesota Rules of Criminal

Procedure. Medina argues that the district court improperly calculated his criminal-history

score by including two convictions he accrued after the charged offense in arriving at the

presumptive sentence, and that this improperly calculated presumptive sentence incorrectly

factored into his plea negotiations to render an illegal sentence. We conclude the district

court properly calculated Medina’s criminal-history score and properly interpreted and

applied the Minnesota Sentencing Guidelines. Affirmed.

                                         FACTS

      This case arises from Antonio Medina’s sentence for second-degree murder. On

April 17, 2008, the state charged Medina with second-degree murder after DNA evidence

linked him to a November 2005 homicide. On May 23, 2008, Medina pleaded guilty to

the charge.

      Medina’s plea agreement provided that, upon sentencing, he and the state would

jointly recommend a 312-month commitment to the Commissioner of Corrections. The

presentence investigation report calculated his criminal-history score to be two, based on

two felony convictions: an August 2006 theft conviction and a November 2007 driving-

while-intoxicated conviction. Medina incurred both convictions after committing the

second-degree-murder offense but before the state charged him for it.




                                            2
       At the sentencing hearing, the district court noted the plea bargain between the

parties and adopted their joint recommendation, sentencing Medina to 312 months.

Medina later filed a pro se motion to correct his sentence, arguing that the district court

improperly enhanced his sentence based on an incorrectly calculated criminal-history

score. See Minn. R. Crim. P. 27.03, subd. 9. 1 The district court denied Medina’s motion.

Medina appeals.

                                      DECISION

       This court reviews 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). We review the district court’s interpretation of the

Minnesota Sentencing Guidelines, a question of law, de novo. Maurstad, 733 N.W.2d at

148.   When interpreting a certain provision, “we shall not disregard the plain and

unambiguous language of the sentencing guidelines and accompanying commentary.”

State v. Mondry, 682 N.W.2d 183, 184 (Minn. App. 2004). “On appeal from the district

court's denial of a [motion to correct a sentence], this court will not reevaluate a sentence

if the district court's discretion has been properly exercised and the sentence is authorized

by law.” Anderson v. State, 794 N.W.2d 137, 139 (Minn. App. 2011) (quotations omitted),

review denied (Minn. Apr. 27, 2011).




1
  The Minnesota Supreme Court has held that a criminal defendant cannot waive or forfeit
the right to challenge his sentence and, in particular, the calculation of his criminal-history
score. See State v. Maurstad, 733 N.W.2d 141, 147–48 (Minn. 2007).

                                              3
       Presumptive sentences are governed by the guidelines in effect on the date of the

conviction offense. See Peugh v. United States, 133 S. Ct. 2072, 2078 (2013) (holding that

to sentence an offender under guidelines not in effect at the time of the offense violates the

Ex Post Facto Clause). The presumptive sentence for any offense takes into account the

offender’s criminal-history score and the severity level of the charged offense, prescribing

a corresponding range. Minn. Sent. Guidelines II (2005). “[S]entences must be based on

correct criminal history scores, as these scores are the mechanism district courts use to

ensure that defendants with similar criminal histories receive approximately equal

sanctions for the same offense.” Maurstad, 733 N.W.2d at 147.

       Under the 2005 guidelines—those in effect at the time of Medina’s offense—an

offender’s criminal-history score is computed by assigning “a particular weight for . . .

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

current sentencing or for which a stay of imposition of sentence was given before the

current sentencing.” Minn. Sent. Guidelines II.B.1 (2005) (emphasis added). “The phrase

‘before the current sentencing’ means that in order for prior convictions to be used in

computing [a] criminal history score, the felony sentence for the prior offense must have

been stayed or imposed before sentencing for the current offense.” Minn. Sent. Guidelines

cmt. II.B.101. (2005). Accordingly, “an offender’s conviction of an offense committed

subsequent to the current offense, but sentenced prior to the current sentencing, is properly

included in the defendant’s criminal-history score.” Mondry, 682 N.W.2d at 184.

       Once the appropriate criminal-history score is determined, the presumptive fixed

sentence for a felony conviction is found in the grid cell at the intersection of the criminal-


                                              4
history-score column and the offense-severity-level row. Minn. Sent. Guidelines II.C

(2005).   “[I]mposition of the presumptive sentence under the Minnesota Sentencing

Guidelines is mandatory absent additional findings.” Maurstad, 733 N.W.2d at 147.

       Here, the district court denied Medina’s motion to correct his sentence, concluding

that his criminal-history score had been properly calculated as of the date of his sentencing

to reflect the two previous convictions. The district court further concluded that the

presumptive sentence for second-degree murder was correctly calculated to be 346 months,

with a permissible range of 295 to 415 months.

       Medina argues that his sentence warrants correction because his criminal-history

score at the time of the offense—rather than at the time of sentencing—was zero. Because

he contemplated a sentence at the low end of the range in plea negotiations, he claims the

district court should have corrected his sentence to 261 months. That would be the low end

of the presumptive range for second-degree murder applicable to an offender with a

criminal-history score of zero.

       We understand Medina’s argument; however, the Minnesota Sentencing Guidelines

preclude us from adopting it. Under the sentencing guidelines, an offender’s criminal-

history score includes any felony sentence imposed prior to sentencing on the charged

offense and is calculated as of the date of the current sentencing. See Minn. Sent.

Guidelines II.B (2005). This court has considered and rejected the same argument. See

Mondry, 682 N.W.2d at 185. In Mondry, the defendant argued that two North Dakota

convictions he incurred after the charged offense but before sentencing on the charged

offense should not have been included in the calculation of his criminal-history score. Id.


                                             5
at 183–84. Rejecting his argument, this court reiterated that, because Mondry had been

sentenced for the North Dakota offenses before sentencing on the charged offense, his

criminal-history score properly included them. Id. at 185.

       As in Mondry, Medina’s two felony-conviction sentences—for an August 2006 theft

offense and a November 2007 DWI offense—predated sentencing on July 10, 2008, for the

second-degree murder. Accordingly, they necessarily informed his criminal-history score.

See Minn. Sent. Guidelines II.B (2005). For the theft, a severity-level-two offense, he

should have been assigned one half point and for the DWI, a severity-level-seven offense,

he should have been assigned one and a half points, for a total of two criminal history

points. Minn. Sent. Guidelines II.B.1.a (2005). His presentencing worksheet reflects

exactly these calculations, and his criminal-history score was properly calculated.

       His presumptive sentence, which aided the probation department’s recommendation

and Medina’s plea bargain with the state, was also properly calculated. Second-degree

murder was a severity-level-eleven offense under the 2005 guidelines.            Minn. Sent.

Guidelines IV (2005). The 2005 grid shows that the intersection of severity-level-eleven

and criminal-history-score-two for a second-degree-murder charge yields a presumptive

sentence of 346 months, with a permissible range of 295 to 415 months. The sentencing

hearing transcript reflects this exact sentence.

       Medina’s criminal-history score and his presumptive sentence were properly

calculated. The district court did not abuse its discretion in sentencing Medina. The district

court properly interpreted the sentencing guidelines when it sentenced him to 312 months.

       Affirmed.


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