State of Minnesota, Respondent, vs. Violet Gonzalez, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-03-156

 

State of Minnesota,
Respondent,
 
vs.
 
Violet Gonzalez,
Appellant.

 

Filed September 30, 2003

Reversed and remanded

Minge, Judge

 

Kandiyohi County District Court

File No. K702454

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Boyd A. Beccue, Kandiyohi County Attorney, 415 S.W. Sixth Street, Willmar, MN 56201 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Minge, Judge.

U P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            Appellant challenges the length of her sentence on the ground that she was given too high a criminal history score for a prior Georgia controlled-substance conviction.  Minnesota Sentencing Guidelines require that out-of-state convictions be matched to a comparable Minnesota offense.  Because the sentence in Georgia best matches a lower severity level crime in Minnesota, because ambiguities of appellant's Georgia conviction and the differing statutes make a precise match with a Minnesota offense impossible, and because in cases where multiple severity levels are possible, the lowest is to be used if information on the conviction is ambiguous, the district court abused its discretion by not using a lower severity level.  We reverse and remand for resentencing. 

FACTS

Appellant Violet Gonzalez pleaded guilty to a second-degree controlled-substance crime in violation of Minn. Stat. § 152.021, subd. 1(1) (2002).  The sentencing court determined that, based on her two prior convictions, appellant had a criminal history score of three.  Two of those points are from a prior felony conviction in the state of Georgia. 

In the Georgia proceeding, Gonzalez was arrested with three other persons who were traveling by car with a substantial quantity of cocaine. Appellant was initially charged with "Trafficking in Cocaine" under Ga. Stat. § 16-13-31 (a)(1)(C) (1990).  The indictment stated that the charged quantity of cocaine was over 400 grams with greater than ten percent purity.  Gonzalez pleaded guilty to and was convicted of "Possession with Intent to Distribute."  Neither the plea nor the conviction identified the offending substance, its quantity, or the statutory reference for the offense.  However, the Georgia records are clear.  The drug was cocaine, the conviction was for a lesser-included offense, and a co-defendant testified in Gonzalez's presence and in connection with his plea that the group had over 400 grams of cocaine.  The Georgia court sentenced Gonzalez to 36 months in prison and 84 months of probation.

The Minnesota sentencing court found Gonzalez's Georgia felony conviction to be analogous to a Minnesota first-degree controlled-substance crime, which calls for two criminal history points.  Gonzalez moved for a resentencing hearing.  The district court re-opened the file, considered all available evidence in the Georgia conviction, including material the prosecutor obtained, and denied Gonzalez's motion for resentencing.  Gonzalez appeals from the district court's denial of her motion for resentencing.

D E C I S I O N

The issue on appeal is whether the district court abused its discretion by determining that appellant's Georgia conviction is analogous to a conviction in Minnesota for first-degree controlled-substance crime.  Minnesota's Sentencing Guidelines "provide uniform standards for the inclusion and weighting of criminal history information that are intended to increase the fairness and equity" in determining a defendant's criminal history score.  State v. Reece, 625 N.W.2d 822, 824 (Minn. 2001) (quotation omitted).  The guidelines require that a defendant's out-of-state felony convictions be included in the defendant's Minnesota criminal history score.  Id.  "The state has the burden of establishing the facts necessary to justify consideration of out-of-state convictions."  State v. Jackson, 358 N.W.2d 681, 683 (Minn. App. 1984).  The state must prove by a "fair preponderance of the evidence that the prior conviction was valid, the defendant was the person involved, and the crimes constituted felonies in Minnesota."  Id.  The defendant is not to be treated any harsher or more lenient because the conviction is from another state.  The Minnesota Sentencing Guidelines provide that "the sentencing court, in its discretion, should make the final determination as to the weight accorded foreign convictions."  Minn. Sent. Guidelines cmt. II.B.504.  Thus, we review the district court's determination for abuse of discretion.  Reece, 625 N.W.2d at 824.   

When evaluating prior out-of-state convictions and relating them to the Minnesota offenses, problems arise because of differing offense definitions and the separation of similar crimes by degrees or severity levels.  These problems are especially challenging with controlled-substance offenses.  The comments to the Minnesota Sentencing Guidelines provide that for prior out-of-state controlled-substance convictions

the amount and type of the controlled substance should, therefore, be considered in the determination of the appropriate weight to be assigned to a prior felony sentence for a controlled substance offense.  In those instances where multiple severity levels are possible for a prior felony sentence but the information on the criteria that determine the severity level ranking is unavailable, the lowest possible severity level should be used.

 

Minn. Sent. Guidelines cmt. II.B.101.  The commentary to the guidelines also provide that in calculating the criminal history score, "sentencing courts should consider the nature and definition of the foreign offense, as well as the sentence received by the offender."  Minn. Sent. Guidelines cmt. II.B.504; see also Reece, 625 N.W.2d at 825; Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992).     

            In the case of multiple severity levels there are several important points in the analysis.  First, the sentencing court must fit the defendant's conviction in the range of offenses provided for under the laws of the other state.  Second, the comparable range of offenses in Minnesota must be identified and a determination must be made if there is a clear match.  Third, if there is an ambiguity in determining the parallel Minnesota offense, it is also necessary to examine the sentence received in the other state and determine what offenses in Minnesota carry a comparable sentence under our sentencing guidelines.  Fourth, the sentencing court should consider any evidence including weight and type of controlled substance in the out-of-state offenses that would indicate the probable level of the offense in Minnesota. 

As previously noted, if adequate information is not available and uncertainty remains after this effort is completed, the comments to the Minnesota Sentencing Guidelines provide that "the lowest possible [Minnesota] severity level should be used."  This "lowest possible" principle recognizes the fact that there are intangible considerations that influence convictions, especially, as in this case, convictions pursuant to guilty pleas.  These considerations range from problems of proof to cooperation in other prosecutions to crowded calendars.  The goal is not to enhance out-of-state convictions, but to use them fairly within the clearly established circumstances.

The district court determined that appellant's Georgia conviction was equivalent to a first-degree controlled-substance conviction in Minnesota, which makes it a crime to "unlawfully possess[ ] one or more mixtures of a total weight of twenty-five grams or more containing . . . cocaine."  Minn. Stat. § 152.021, subd. 2(1) (2002).  It gave particular significance to the admission in Georgia by Gonzalez's co-defendant that there was over 400 grams of cocaine in their car.  Gonzalez was present in court when that statement was made and did not say anything.  We must determine whether the district court abused its discretion by determining that the Georgia conviction is for an offense equivalent to Minnesota first-degree controlled-substance crime. 

The first step in our analysis is to review the Georgia statutes and determine under which statute appellant was convicted.  Two sections of the Georgia controlled-substance statutes are relevant to our decision.  Ga. Stat. §§ 16-13-30, 31 (1990).  One deals with trafficking in substances including cocaine and provides that for the first offense the minimum prison terms range from five to 25 years and maximum fines from $200,000 to $1 million.  Ga. Stat. § 16-13-31.  The most severe penalties under this statute are for possession of over 400 grams of cocaine.  Ga. Stat. § 16-13-31 (a)(1)(e).  Appellant was initially charged under this most severe portion of the statute.  The other section of the Georgia law prohibits possession with intent to distribute any quantity of cocaine and provides for a minimum sentence of five years and no fine.  Ga. Stat. § 16-13-30 (b), (d).  Neither the final disposition nor the sentencing transcript identifies the exact statute under which appellant was convicted.  However, a review of the statutes and the language in the conviction order indicates that appellant was convicted of violating the less serious statute, which makes it a crime to "possess with intent to distribute any quantity controlled substance."  Ga. Stat. § 16-13-30 (b) (1990). 

The second step in analysis is to identify the comparable offenses in Minnesota.  There are six Minnesota crimes for possession of cocaine.  See Minn. Stat. §§ 152.0261 (2002) (importing across state borders), 152.021-.025 (controlled-substance crimes in the first through fifth degrees).  Since Minnesota statutes define "sell" as including possession with intent to sell, four Minnesota controlled-substance offenses criminalize possession of cocaine with intent to sell.  Minn. Stat. § 152.01, subd. 15a(3) (2002).  The quantity of cocaine required for the various levels ranges from 25 grams for the most severe offense to a small amount for the least severe offense.  See Minn. Stat. §§ 152.0261, 152.021-.025.  In theory, convictions in Georgia for possession with intent to sell could be translated into first, second, third, or fourth-degree controlled-substance offenses in Minnesota.  For these crimes there are no statutory minimum sentences; the maximums range from 30 years down to five years, with fines from $1,000,000 down to $10,000.  Id.

The third stage of analysis considers the sentences.  In Georgia, Gonzalez was sentenced to 36 months in prison and 84 months of probation.  In reviewing the sentencing guidelines in Minnesota, it appears that the length of the Georgia sentence she received falls between our sentence for second-degree and third-degree controlled-substance crimes.  See Minn. Sent. Guidelines Grid and Appendix (2001) (providing a recommended executed sentence of 48 months for controlled-substance crime in the second degree and a recommended executed sentence of 21 months for controlled-substance crime in the third degree).  However, if the Minnesota sentences are discounted one-third time for supervised release and the comparison is with a minimum term of imprisonment, the Georgia sentence of 36 months is closest to the second-degree controlled-substance crime minimum term of imprisonment of 32 months.  Id.  On the more severe side, the minimum term of imprisonment under the Minnesota guidelines for a first-degree controlled substance violation is 57 1/3 months.  Id.

The fourth step in establishing the comparable crime is analysis of the other circumstances in the Georgia case.  Gonzalez's co-defendant in Georgia testified, in Gonzalez's presence, that more than 400 grams of cocaine were in the car.  Although this quantity strongly indicates the most serious level of controlled-substance crime in Minnesota, Gonzalez neither admitted to nor was convicted of possessing this amount. 

In summary, the Georgia conviction was too cryptic and the statutory scheme too dissimilar from Minnesota to clearly translate Gonzalez's Georgia conviction into a Minnesota controlled-substance crime level.  The Georgia sentence indicates that the most parallel Minnesota level is second-degree controlled-substance crime.  Although the claimed weight of the cocaine would clearly justify a first-degree controlled-substance crime level, this was not part of the Georgia conviction and in any event quantity alone is not the determining factor. 

Complicating the situation is the knowledge that many factors influence the courts, prosecutors, and defendants in disposition of cases.  In this case, we cannot determine why the Georgia prosecutor accepted appellant's plea.  That is, we have no way of knowing if the prosecutor decided that there simply was not enough evidence to convict appellant of the charge or if the prosecutor accepted appellant's plea in exchange for appellant's cooperation, or due to staffing and caseload burdens in his office or a lack of zeal to prosecute a transit who would probably leave the state after serving her sentence.  There is nothing in the Georgia record regarding Gonzalez's culpability, the notoriety of the crime, or other factors that may lead to conviction for a greater or lesser level offense.  Under the circumstances, if the Georgia case were present in Minnesota, it is unlikely that Gonzalez would have been convicted of the most serious level offenses first-degree controlled-substance crime or importation.  The admonition to use the lowest possible severity level is important.  Minn. Sent. Guidelines cmt. II.B.101.   

We conclude that it was an abuse of the district court's discretion to determine that the Georgia conviction was equivalent to Minnesota's controlled-substance crime in the first degree.  The Georgia information on quantity was not part of the conviction while the sentence clearly was.  Thus, there was certainly ambiguity whether the parallel offense was first or second degree.  With such ambiguity, the lesser offense of controlled-substance crime in the second degree should be used.

We note that the sentencing guidelines, grids, and appendixes, as they existed at the time of sentencing in this case, indicate that treating the Georgia conviction as a second-degree Minnesota controlled-substance crime will result in a criminal history score of one and one-half and a rounded, overall criminal history score of two.  The proceeding is remanded to the district court for resentencing in a manner not inconsistent with this opinion.

Reversed and remanded.