                          This opinion will be unpublished and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
                                     A14-0934

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                   Toni Ann Olmstead,
                                       Appellant.

                                 Filed December 8, 2014
                    Affirmed in part, reversed in part, and remanded
                                     Chutich, Judge

                             Hennepin County District Court
                               File Nos. 27-CR-10-18387
                                         27-CR-12-22133

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

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


         Considered and decided by Stauber, Presiding Judge; Chutich, Judge; and Reilly,

Judge.
                        UNPUBLISHED OPINION

CHUTICH, Judge

      Appellant Toni Ann Olmstead challenges the district court’s imposition of

consecutive 43-month and 46-month prison sentences for a probation violation. Because

we hold that the district court correctly specified that both sentences were to run

consecutively during the pertinent hearing, we affirm in part. But because the district

court used an incorrect criminal history score in calculating the duration of the 46-month

sentence, we reverse the imposition of that sentence and remand for resentencing.

                                        FACTS

      Olmstead has a long history of felony stalking and harassment-related offenses

against L.S. dating back to at least 2006, when she was first charged with felony stalking

of L.S. and then convicted. In 2010, Olmstead was again charged with felony stalking of

L.S. She pleaded guilty to one amended count of attempted stalking and one count of

stalking. Olmstead was sentenced to a 19-month prison term on count one, followed

consecutively by a 43-month prison term, stayed for a probationary period of five years,

on count two.

      In 2012, after serving the 19-month sentence and while on probation for the 43-

month consecutive term, Olmstead was arrested at L.S.’s home and was again charged

with felony stalking. She pleaded guilty to the lone count. The new felony conviction

was deemed a violation of the terms of Olmstead’s probation on the 2010 case.

      On April 23, 2013, the district court held a joint hearing concerning the probation

violation and sentencing for the new stalking conviction.         Regarding Olmstead’s


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probation violation on her 2010 criminal conviction, Olmstead admitted that she violated

the terms of her probation by committing the new stalking offense. The district court

imposed a sanction of 365 days in jail with the opportunity for Olmstead to be furloughed

to various treatment programs.

      The district court then sentenced Olmstead for the new 2012 felony stalking

conviction. During the sentencing hearing, the district court engaged in an extensive

colloquy that addressed Olmstead’s history of stalking the victim and the district court’s

reasoning for its sentencing decision. The district court sentenced Olmstead to a 46-

month prison term and stayed execution of the sentence for six years. The sentence was

a downward dispositional departure based on the availability of treatment and Olmstead’s

acceptance of responsibility. But the district court specifically warned Olmstead that she

was “looking down a barrel of 46 months consecutive to the 43 months [she had] hanging

over [her] head” should she commit any further violations of the probationary conditions.

      Several months later, Olmstead violated the conditions of her probation and of the

treatment program that she was in by consuming alcohol. She admitted to the violation,

and in March 2014, the district court revoked the stays of Olmstead’s 43-month and 46-

month sentences. The district court executed the sentences and ordered that they run

consecutively. This sentencing appeal followed.




                                            3
                                     DECISION

                                             I.

       “The court may at any time correct a sentence not authorized by law.” Minn. R.

Crim. P. 27.03, subd. 9.     Olmstead argues that the district court sentenced her to

consecutive terms in contravention of Minnesota Statutes section 609.15, subd. 1 (2012).

Whether a statute has been properly construed is a question of law subject to de novo

review. State v. Gilbert, 634 N.W.2d 439, 441 (Minn. App. 2001), review denied (Minn.

Dec. 11, 2001).

       Minnesota law provides:

              [W]hen separate sentences of imprisonment are imposed on a
              defendant for two or more crimes, whether charged in a single
              indictment or information or separately, or when a person
              who is under sentence of imprisonment in this state is being
              sentenced to imprisonment for another crime committed prior
              to or while subject to such former sentence, the court in the
              later sentences shall specify whether the sentences shall run
              concurrently or consecutively. If the court does not so
              specify, the sentences shall run concurrently.

Minn. Stat. § 609.15, subd. 1. The district court is also required to “[s]tate precisely the

terms of the sentence” at the time it imposes the sentence. Minn. R. Crim. P. 27.03, subd.

4(A); see also State v. Wakefield, 263 N.W.2d 76, 78 (Minn. 1978) (providing that

“precise terms of the sentence” include whether multiple sentences are to run

concurrently or consecutively).

       “[T]he traditionally recognized goal of consecutive sentencing is to impose a

longer single period of incarceration.” Pageau v. State, 820 N.W.2d 271, 279 (Minn.

App. 2012); see also Minn. Sent. Guidelines cmt. 2.F.01 (2012) (“Consecutive sentences


                                             4
are a more severe sanction because the intent is to confine the offender for a longer

period than under concurrent sentences.”).           Consecutive sentences are considered

permissive if (1) the presumptive disposition for the current offense is commitment and

(2) the current offense is being sentenced consecutively to a prior felony sentence that has

not expired or been discharged if the prior felony conviction is for an offense eligible for

permissive consecutive sentences. Minn. Sent. Guidelines 2.F.2.a.(1)(i) (2012). The

stalking offense at issue here is an offense eligible for permissive consecutive sentencing.

Minn. Sent. Guidelines 6 (2012).

       Applying these principles here, we conclude that the district court correctly

imposed consecutive sentences. During its sentencing colloquy in April 2013, the district

court stated:

                I want to incorporate my sentencing structure on the
                probation file with this one. So, in essence, I’m going to try it
                this way. I’m going to order that you abide by all terms and
                conditions of [p]robation on File 27-CR-10-18387.

                     To be clear, Madam, that means that the same conditions
                that I’ve imposed in [the sentencing] file will continue in [the
                probation violation] file. In other words[,] . . . a lot of these
                will become [moot] because you would have [ostensibly]
                completed your Metro Re-Entry, your 180, your Headway
                Emotional, etc., and you would have satisfied those things.
                But I’m incorporating those same orders into this file and so,
                if you violate those, you’re also going to be in violation of
                this current sentence as well. And then you’re looking down a
                barrel of 46 months consecutive to the 43 months you hav[e]
                hanging over your head.

(Emphasis added.)        The district court specified that the sentences were to run

consecutively when it explained the conditions of Olmstead’s probation.             Olmstead



                                               5
argues that when the district court mentioned that the sentences would run consecutively,

it had already completed pronouncing her sentence and, thus, the mention of the

consecutive nature of the sentences was not part of the actual sentencing. This argument

fails, however, because the district court continued to impose the exact terms of

Olmstead’s sentence, including all of the terms of her probation, after this point in the

sentencing hearing.

      Olmstead further contends that because the district court never mentioned the

consecutive nature of the sentences in its written sentencing order, the sentences should

be presumed to run concurrently. Minnesota law establishes, however, that “an orally

pronounced sentence controls over a judgment and commitment order when the two

conflict.” State v. Staloch, 643 N.W.2d 329, 331 (Minn. App. 2002) (quotation omitted).

To be sure, the judgment and commitment order is evidence that “may be used to

determine the intended sentence,” but only “[w]hen an orally pronounced sentence is

ambiguous.” Id. (quotation omitted). The written order helps to “clarify an ambiguous

oral sentence by providing evidence of what was said from the bench.” Id. (quotation

omitted).

      Here, despite the length of the April 2013 sentencing transcript, the district court’s

intent to impose consecutive sentences, were they to be later executed, is clear. The

entire record shows that the district court intended to offer Olmstead one last chance to

receive treatment to stem her persistent pattern of stalking behavior before adopting the

state’s contention that the safety of the victim could only be assured by incarcerating




                                            6
Olmstead for the longest possible period. Accordingly, we affirm the district court’s

imposition of consecutive sentences.

                                           II.

       Olmstead next contends that the duration of the second consecutive term must be

reduced from 46 months to 18 months to conform to the Minnesota Sentencing

Guidelines and applicable caselaw. We agree.

       “For each felony offense sentenced consecutively to another felony offense(s), the

court must use a Criminal History Score of 0, or the mandatory minimum for the offense,

whichever is longer, to determine the presumptive duration.” Minn. Sent. Guidelines

2.F.2.a (2012). Stalking in violation of Minnesota Statutes section 609.749, subdivision

4(b), is a severity level 5 offense. Minn. Sent. Guidelines 5.A (2012). In 2013, when

Olmstead was sentenced, the presumptive sentence for a severity level 5 offense with

zero criminal history points was 18 months.        Minn. Sent. Guidelines 4.A (2012)

(sentencing grid).

       Olmstead’s consecutive sentence of 46 months for the 2012 offense was arrived at

through an improper enhancement of her criminal history score to seven, using

Olmstead’s felony and custody status points. This enhancement may only be used when

sentencing concurrently, not when sentencing consecutively. See Minn. Sent. Guidelines

2.F.2.a. The consecutive sentence of 46 months must be reduced to 18 months to

conform with section 2.F of the sentencing guidelines.




                                            7
      Because the district court incorrectly computed the sentence duration for

Olmstead’s consecutive sentence, we reverse the district court’s imposition of the 46-

month sentence and remand for resentencing.

      Affirmed in part, reversed in part, and remanded.




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