Opinion
A20-1465
08-31-2021
State of Minnesota, Respondent, v. Chase Anthony Bertrand, Appellant.
Washington County District Court File No. 82-CR-19-1100
Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Florey, Judge.
ORDER OPINION
CAROL A. HOOTEN, JUDGE
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. On March 20, 2019, appellant Chase Anthony Bertrand was arrested and charged with second-degree controlled substance crime for possessing 25 grams or more of methamphetamine in violation of Minn. Stat. § 152.022, subd. 2(a)(1) (2018); fifth-degree controlled substance crime for possessing the amphetamine and dextroamphetamine pills in violation of Minn. Stat. § 152.025, subd. 1(1) (2018); and for possessing stolen items in violation of Minn. Stat. § 609.53, subd. 1 (2018).
2. On June 23, 2020, Bertrand pleaded guilty to second-degree possession of a controlled substance in violation of Minn. Stat. § 152.022, subd. 2(a)(1).
3. The presentence investigation (PSI) report in this case indicated that Bertrand's criminal history score was six. This calculation was based on the assignment of five felony points and one custody-status point. The PSI recommended that Bertrand pay $580 in restitution and receive a 92-month sentence -which is the low end of the presumptive sentencing range for a criminal history score of six.
4. On September 24, 2020, the district court sentenced Bertrand to 92 months in prison, with 178 days of credit for time served. The district court also ordered Bertrand to pay $580 in restitution to the victim. Bertrand appeals.
5. Bertrand asserts that he is entitled to be resentenced due to the 2019 amendment to the Minnesota Sentencing Guidelines. He relies on our recent decision in State v. Robinette, 944 N.W.2d 242, 248 (Minn.App. 2020), rev. granted (Minn. June 30, 2020), in which we held that the amelioration doctrine applied and that he was entitled to resentencing under the 2019 guidelines. The supreme court recently affirmed our decision and also concluded that "Robinette is entitled to relief under the amelioration doctrine" and entitled to resentencing. __ N.W.2d__, 2021 WL 3745545 (Minn. Aug. 25, 2021).
6. An offender's criminal history score and the severity level of the offense are "the two dimensions most important in sentencing decisions," together supplying a sentencing range under Minnesota's sentencing guidelines. Minn. Sent. Guidelines 2 (2018). "An offender's criminal history score is the sum of points from eligible: prior felonies; custody status at the time of the offense; prior misdemeanors and gross misdemeanors; and prior juvenile adjudications." Minn. Sent. Guidelines 2.B. Custody-status points are assigned when the offender was under a qualifying custody status-including probation-at the time he committed the offense for which he is being sentenced. Minn. Sent. Guidelines 2.B.2.a. (1).
7. "A sentence based on an incorrect criminal history score is an illegal sentence." State v. Woods, 945 N.W.2d 414, 416 (Minn.App. 2020) (citing State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007)). When a defendant's sentence is based on an incorrect criminal history score, his case must be remanded for resentencing. State v. Provost, 901 N.W.2d 199, 202 (Minn.App. 2017). Interpretation of the sentencing guidelines is a question of law reviewed de novo. State v. Strobel, 932 N.W.2d 303, 306 (Minn. 2019).
8. In 2019, the Minnesota Sentencing Guidelines Commission made several changes to Minnesota's sentencing guidelines. Under the amended guidelines, a person on probation for a gross misdemeanor offense receives one-half of a custody-status point, rather than a full custody-status point as had been the case under the guidelines prior to their amendment. Minn. Sent. Guidelines 2.B.2.a (2018); Minn. Sent. Guidelines 2.B.2.a (Supp. 2019).
9. Bertrand argues, that according to the 2019 amendment, he should have been assigned only one-half of a custody-status point, instead of one full point, for being on probation for a gross misdemeanor at the time he committed the offense in this case. The state concedes that the amelioration doctrine applies.
10. In Robinette, the supreme court concluded that the modification to section 2.B.2 applies to cases that were not final as of August 1, 2019, the effective date of the sentencing amendments. __ N.W.2d__, 2021 WL 3745545, at *2, 6.
11. Bertrand was sentenced on September 24, 2020, and so his case was not final as of August 1, 2019. Bertrand's sentence was calculated using the 2018 guidelines because the offense was committed on March 19, 2019, before the 2019 guidelines became effective on August 1, 2019. See Minn. Sent. Guidelines 2.B.2.a (Supp. 2019). Because his case was not final on August 1, 2019, the 2019 sentencing amendments apply to the calculation of Bertrand's custody-status and criminal history scores.
12. Because it was calculated using the 2018 sentencing guidelines, Bertrand's sentence was based on a criminal history score of six. This was calculated, in part, based on the assignment to Bertrand of one custody status point because he was on probation for a gross misdemeanor at the time of his offense in this case. Under the amended sentencing guidelines, Bertrand would only receive one-half of a custody-status point because he was on probation for a single gross misdemeanor at the time of the offense in the present case. Minn. Sent. Guidelines 2.B.2.a, 2.B.3 & cmt. 2.B.301 (Supp. 2019). Because Bertrand was sentenced under an incorrect criminal history score, his sentence is an "illegal sentence," Woods, 945 N.W.2d at 416, and his case should be remanded for resentencing based on an accurate criminal history score. See Provost, 901 N.W.2d at 202.
13. Bertrand initially requested that this court vacate the district court's restitution order. However, in his reply brief filed with this court on June 16, 2021, Bertrand explained that he "decided to withdraw the second issue: whether the district court's restitution order must be vacated because it lacked legal authority to impose restitution on a dismissed offense." Bertrand decided to withdraw this claim because he has "already paid restitution and wishes to have finality on the issue for himself and the victim in this matter." Accordingly, we need not further examine the legal merits of the parties' arguments with respect to this issue.
IT IS HEREBY ORDERED:
1. The district court's order is reversed and remanded for resentencing.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.