Opinion
A19-1695
03-22-2021
State of Minnesota, Respondent, v. Sandy Woodrow Yancy, Appellant.
Keith Ellison, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion is nonprecedential except as provided by Minn . R. Civ. App. P. 136.01, subd. 1(c). Reversed and remanded
Johnson, Judge Hennepin County District Court
File No. 27-CR-19-3232 Keith Ellison, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, 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 Bryan, Presiding Judge; Johnson, Judge; and Reilly, Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Sandy Woodrow Yancy challenges his 131-month prison sentence. He argues that the district court erred by assigning him five criminal-history points, including three points for three prior convictions of theft by swindle, which, he asserts, arose from the same behavioral incident. We conclude that the state did not satisfy its burden to prove that the three prior convictions of theft by swindle did not arise from the same behavioral incident. But we also conclude that the state should have an additional opportunity to introduce evidence on that issue because, at the time of sentencing, Yancy did not challenge the assignment of three criminal-history points for the three prior convictions of theft by swindle. Therefore, we reverse and remand for further proceedings.
FACTS
In February 2019, the state charged Yancy with second-degree sex trafficking, in violation of Minn. Stat. § 609.322, subd. 1a(4) (2018), and second-degree promotion of prostitution, in violation of Minn. Stat. § 609.322, subd. 1a(2) (2018). The amended complaint alleged that, between September 2017 and December 2018, Yancy lived with Victim A at a residence in Minneapolis, Victim A engaged in more than 500 acts of commercial sex at that location, and Victim A was required to give Yancy at least half of the money she received for commercial-sex work.
In July 2019, Yancy and the state entered into a plea agreement in which Yancy agreed to plead guilty to second-degree promotion of prostitution. In exchange, the state agreed to dismiss the charge of second-degree sex trafficking and requested a bottom-of-the-box sentence of 131 months.
Yancy's sentencing worksheet indicates that he has three prior convictions from 2006 of theft by swindle, for which he was assigned three criminal-history points. The worksheet notes a different offense date for each prior theft-by-swindle conviction. The worksheet also notes that Yancy's present offense is at severity level C. At the sentencing hearing, Yancy's attorney informed the district court that the parties agreed that Yancy's criminal-history score is five, and the district court so found. The presumptive sentence for Yancy's offense with a criminal-history score of five is an executed sentence of between 131 and 180 months of imprisonment. Minn. Sent. Guidelines 4.B. (2018). The district court imposed an executed prison sentence of 131 months.
Yancy filed a timely direct appeal in which he challenged his criminal-history score. This court affirmed. State v. Yancy, No. A19-1695, 2020 WL 5359405 (Minn. App. Sept. 8, 2020). Yancy petitioned for further review. The supreme court granted his petition, vacated this court's opinion, and remanded for reconsideration in light of three prior supreme court opinions. State v. Yancy, No. A19-1695 (Minn. Nov. 25, 2020) (order). This court asked the parties to submit supplemental briefs discussing the cases identified in the supreme court's order.
DECISION
Yancy argues that the district court erred by assigning three criminal-history points to his three theft-by-swindle convictions. He contends that the state did not prove by a preponderance of the evidence that his three prior convictions for theft by swindle in 2006 were not part of a single behavioral incident. He asserts that "the state presented no evidence" regarding his 2006 convictions and that the only information before the district court was his sentencing worksheet and the register of actions for the 2006 case.
In a felony case, a defendant's presumptive sentence is determined by the severity of the present offense and the defendant's criminal-history score. Minn. Sent. Guidelines 2 (2018). A criminal-history score is the "sum of points" that are assigned for, among other things, prior felony convictions and prior juvenile adjudications. Minn. Sent. Guidelines 2.B. The number of criminal-history points assigned to a prior felony conviction depends on the severity level of the prior offense. Minn. Sent. Guidelines 2.B.1. As a general rule, "the offender is assigned a particular weight for every felony conviction for which a felony sentence was stayed or imposed before the current sentencing." Minn. Sent. Guidelines cmt. 2.B.101. But if an offender has "multiple offenses occurring in a single course of conduct in which state law prohibits the offender from being sentenced on more than one offense, only the offense at the highest severity level should be considered." Minn. Sent. Guidelines cmt. 2.B.107. The term "single course of conduct" is equivalent to the term "single behavioral incident." Minn. Sent. Guidelines cmt. 2.B.116. "The state . . . has the burden at a sentencing hearing of establishing the facts necessary to justify consideration of . . . [prior] convictions in determining a defendant's criminal history score." State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983).
In his principal brief, Yancy cited McAdoo in support of his argument that the state did not satisfy its burden of proving that his prior convictions did not arise from a single behavioral incident. In our prior opinion, we discussed McAdoo and two subsequent supreme court opinions that addressed the same issue: Pilger v. State, 337 N.W.2d 695 (Minn. 1983), and Bixby v. State, 344 N.W.2d 390 (Minn. 1984). See Yancy, 2020 WL 5359405, at *2. We relied primarily on Pilger for the proposition that, "if a defendant wishes to challenge a criminal-history score on the ground that it is improperly based on multiple prior convictions that arose from a single behavioral incident," the defendant "must raise the issue at the sentencing hearing and develop a factual record on the issue," and that, if the defendant does not do so, "the claim 'cannot be substantiated on . . . appeal.'" Id. (quoting Pilger, 337 N.W.2d at 697). We noted that "Yancy did not raise any issue in the district court concerning whether three criminal-history points should be assigned to his three prior convictions of theft by swindle" and that he had "never made any such argument and never introduced any evidence relating to the three prior theft-by-swindle convictions." Id., at *3. We concluded, "Because Yancy did not raise the issue or introduce evidence at the appropriate time and in the appropriate forum, he cannot now claim that the state did not satisfy its burden of proof on the issue." Id.
In ruling on Yancy's petition for review, the supreme court vacated our prior opinion and remanded the case to this court "for reconsideration in light of State v. Strobel, 932 N.W.2d 303 (Minn. 2019), State v. Scovel, 916 N.W.2d 550 (Minn. 2018), and State v. Maurstad, 733 N.W.2d 141 (Minn. 2007)." Yancy, No. A19-1695 (Minn. Nov. 25, 2020) (order).
In his supplemental brief, Yancy contends that Maurstad, Scovel, and Strobel "stand for the proposition that defendants may challenge their criminal history scores on appeal without first making the challenge at sentencing." He "respectfully asks this Court to address his sentencing challenge and conclude the state has not met its burden of proving he is subject to three criminal history points for convictions arising out of the" prior case. He does not take a position as to whether this court should reverse outright or reverse and remand for further proceedings.
The state, in its supplemental brief, initially contends that Maurstad, Scovel, and Strobel are distinguishable and that McAdoo, Pilger, and Bixby should apply because they involved similar issues. That contention does not give sufficient weight to the directions in the supreme court's remand order. The state contends in the alternative that, in appeals such as this one, this court generally should remand for further consideration of whether multiple prior convictions arose from a single behavioral incident, "consistent with the practice outlined in State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008), review denied (Minn. July 15, 2008)."
This court's Outlaw opinion received implicit approval in Strobel, the third case identified in the supreme court's remand order. The appellant in Strobel challenged the calculation of his criminal-history score on the ground that a prior drug-related offense should have counted as a gross misdemeanor instead of a felony. 932 N.W.2d at 306. In reciting the procedural history of the case, the supreme court noted that the appellant had not challenged his criminal-history score in the district court but had challenged it for the first time in the court of appeals. Id. at 305-06. In doing so, the supreme court cited Maurstad for the proposition that "a defendant can neither waive nor forfeit appellate review of his criminal-history score," id., and cited Scovel for the proposition that a defendant "cannot forfeit appellate review of his criminal history score," id. at 305. The supreme court in Strobel also noted that this court had reversed and remanded with instructions "to permit the State 'to develop the record regarding the type and amount of controlled substance underlying Strobel's 2012 conviction'" and had relied on Outlaw for that disposition. Id. at 306 (citing Strobel, 921 N.W.2d at 577 (citing Outlaw, 748 N.W.2d at 356)). The supreme court ultimately agreed with this court's interpretation of the sentencing guidelines and affirmed. Id. at 310.
After reconsidering Yancy's arguments in light of Maurstad, Scovel, and Strobel, we conclude that he is not foreclosed from arguing on appeal that he was improperly assigned three criminal-history points on the ground that the state did not prove that the three prior convictions did not arise from the same behavioral incident. We interpret the holding of Maurstad to be broad enough to encompass this case, and we interpret Strobel to have endorsed the remedy in part II of our Outlaw opinion. We held there that, even though the state did not satisfy its burden of proof, because the appellant had not objected to the district court's calculation of his criminal-history score, the state should be permitted on remand to "develop the sentencing record so that the district court can appropriately make its determination." Outlaw, 748 N.W.2d at 356. To the extent that there is any conflict or tension between Pilger and subsequent supreme court opinions, we interpret Maurstad, Scovel, and Strobel to have implicitly overruled Pilger. Thus, even though Yancy did not raise any issue in the district court concerning whether three criminal-history points should be assigned to his three prior convictions of theft by swindle, he is not foreclosed from making that argument in this appeal.
After reviewing the record, we agree with Yancy that the state did not introduce any evidence that his three prior convictions of theft by swindle did not arise from the same behavioral incident. In the absence of such evidence, we must conclude that the state did not satisfy its burden of proof. Thus, the district court erred by assigning Yancy three criminal-history points for three prior theft-by-swindle convictions. However, because Yancy did not challenge his criminal-history score in any way at the time of sentencing, the state should have an opportunity on remand to "develop the sentencing record so that the district court can appropriately make its determination." Outlaw, 748 N.W.2d at 356. Therefore, we reverse and remand for further proceedings, with instructions to the district court to allow the state an additional opportunity to introduce evidence to satisfy its burden of proof with respect to Yancy's criminal-history score.
Reversed and remanded.