This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-1862
Kevin Mathew Erickson, petitioner, Appellant,
vs.
State of Minnesota, Respondent.
Filed July 6, 2015 Affirmed Hooten, Judge
Hennepin County District Court File No. 27-CR-12-29419
Cathryn Middelbrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
On appeal from the order denying his postconviction motion to correct his 30-
month prison sentence, appellant argues that his sentence was incorrectly calculated with a custody status point and that the district court erroneously departed under the
sentencing guidelines. We affirm.
FACTS
On September 12, 2012, respondent State of Minnesota charged appellant Kevin
Mathew Erickson with financial transaction card fraud under Minn. Stat. § 609.821,
subds. 2(1), 3(a)(1)(ii) (2010). The complaint alleged that Erickson had used or
attempted to use a credit card belonging to his deceased father to make more than $2,700
in unauthorized purchases. On August 20, 2013, Erickson entered into a plea bargain and
agreed to plead guilty and admit his status as a career offender in exchange for a 30-
month executed prison sentence. At the plea hearing, Erickson acknowledged that he had
read and signed the plea petition, understood that he was giving up his various trial rights,
and provided the factual basis for his guilty plea.
Erickson then waived his Blakely rights, and his attorney questioned him about his
criminal history. Erickson acknowledged that with five or more prior felony convictions
he would qualify as a career offender, and specifically confirmed five of his prior felony
convictions while also admitting that he had “numerous other felonies.” He admitted that
his current conviction was part of a pattern of criminal activity based on its similarity to
his prior offenses. The district court accepted Erickson’s guilty plea and sentenced him
to a 30-month executed prison sentence in accordance with the plea bargain. The district
court then noted “for the record” that it would be stating on Erickson’s sentencing order
that “[t]he [d]efendant admits [c]areer [o]ffender status going into the future.”
2 On May 21, 2014, Erickson moved the district court pro se to correct his sentence
under Minn. R. Crim. P. 27.03, subd. 9, and his attorney later supplemented this motion
with a memorandum. Erickson argued that the district court failed to make sufficient
findings justifying the upward sentencing departure based on his career-offender status,
and that the record as a whole did not show that he met the criteria for career-offender
status. In a later letter to the district court, Erickson also alleged that he was erroneously
given a custody status point in the calculation of his presumptive sentence.
The district court characterized Erickson’s motion as a petition for postconviction
relief and denied it without a hearing. This appeal followed.
DECISION
On appeal, Erickson challenges the postconviction court’s denial of his motion to
correct his sentence under Minn. R. Crim. P. 27.03, subd. 9. Because Erickson brought
his rule 27.03 motion seeking to correct a sentence he agreed to in a plea bargain with the
state, we construe his motion as a petition for postconviction relief under Minn. Stat.
§ 590.01, subd. 1 (2014). See State v. Coles, __ N.W.2d __, __, 2015 WL 1652901, at *5
(Minn. Apr. 15, 2015) (holding that a rule 27.03 motion to correct an agreed-upon
sentence entered as the result of a plea bargain “is properly viewed as a petition for
postconviction relief”). We review the denial of a petition for postconviction relief for an
abuse of discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012).
While the parties primarily dispute whether the sentence imposed by the district
court was a proper upward departure from the sentencing guidelines, the dispositive issue
in this case is whether the 30-month sentence ordered by the district court even
3 constitutes a departure. Accordingly, we will first address Erickson’s claim regarding his
proper presumptive sentence under the guidelines.
I.
Erickson first argues that he should not have been given a custody status point
under the sentencing guidelines. The presentence investigation report (PSI) in this case
reported that Erickson accrued a custody status point because he committed the instant
offense within the initial probationary terms of two sentences stemming from prior
convictions. Erickson contends that he should not have been given a custody status point
because these two sentences—one from December 2009, the other from November
2010—involved “phantom” three-year probationary terms, as both sentences provided for
Erickson to be discharged from probation after serving substantial local jail terms. He
claims that these sentences were “functionally identical” to executed sentences. He
asserts that, because he finished serving the associated jail time and was discharged from
probation in both cases before June 13, 2012, he should not have been assigned a custody
status point under Minn. Sent. Guidelines 2.B.2 (Supp. 2011).
The postconviction court rejected this argument, finding that Erickson accrued the
custody status point because his June 2012 offense date fell within the three-year initial
probationary terms imposed in each case. We review the determination of a defendant’s
criminal history score for an abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561
(Minn. App. 2002), review denied (Minn. Aug. 20, 2002).
Erickson is correct that both of his prior sentences contemplated his early
dismissal from probation upon his completion of jail sentences. But, the guidelines
4 indicate that the custody status point is earned by an offender when the new offense is
committed “within the period of the initial probationary sentence.” Minn. Sent.
Guidelines 2.B.2.b. The commentary to the guidelines expressly provides that early
release from probation does not commute or otherwise modify the probationary term for
purposes of calculating the custody point:
The Commission has determined that the potential for a custody status point should remain for the entire period of the probationary sentence. If an offender receives an initial term of probation that is definite, is released from probation prior to the expiration of that term and commits a new crime within the initial term, it is clear that a custody point will be assigned.
Minn. Sent. Guidelines cmt. 2.B.201 (Supp. 2011) (emphasis added). While comments
to the sentencing guidelines are not binding, Asfaha v. State, 665 N.W.2d 523, 526
(Minn. 2003), we typically follow the commentary unless a comment contradicts the
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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 A14-1862
Kevin Mathew Erickson, petitioner, Appellant,
vs.
State of Minnesota, Respondent.
Filed July 6, 2015 Affirmed Hooten, Judge
Hennepin County District Court File No. 27-CR-12-29419
Cathryn Middelbrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
On appeal from the order denying his postconviction motion to correct his 30-
month prison sentence, appellant argues that his sentence was incorrectly calculated with a custody status point and that the district court erroneously departed under the
sentencing guidelines. We affirm.
FACTS
On September 12, 2012, respondent State of Minnesota charged appellant Kevin
Mathew Erickson with financial transaction card fraud under Minn. Stat. § 609.821,
subds. 2(1), 3(a)(1)(ii) (2010). The complaint alleged that Erickson had used or
attempted to use a credit card belonging to his deceased father to make more than $2,700
in unauthorized purchases. On August 20, 2013, Erickson entered into a plea bargain and
agreed to plead guilty and admit his status as a career offender in exchange for a 30-
month executed prison sentence. At the plea hearing, Erickson acknowledged that he had
read and signed the plea petition, understood that he was giving up his various trial rights,
and provided the factual basis for his guilty plea.
Erickson then waived his Blakely rights, and his attorney questioned him about his
criminal history. Erickson acknowledged that with five or more prior felony convictions
he would qualify as a career offender, and specifically confirmed five of his prior felony
convictions while also admitting that he had “numerous other felonies.” He admitted that
his current conviction was part of a pattern of criminal activity based on its similarity to
his prior offenses. The district court accepted Erickson’s guilty plea and sentenced him
to a 30-month executed prison sentence in accordance with the plea bargain. The district
court then noted “for the record” that it would be stating on Erickson’s sentencing order
that “[t]he [d]efendant admits [c]areer [o]ffender status going into the future.”
2 On May 21, 2014, Erickson moved the district court pro se to correct his sentence
under Minn. R. Crim. P. 27.03, subd. 9, and his attorney later supplemented this motion
with a memorandum. Erickson argued that the district court failed to make sufficient
findings justifying the upward sentencing departure based on his career-offender status,
and that the record as a whole did not show that he met the criteria for career-offender
status. In a later letter to the district court, Erickson also alleged that he was erroneously
given a custody status point in the calculation of his presumptive sentence.
The district court characterized Erickson’s motion as a petition for postconviction
relief and denied it without a hearing. This appeal followed.
DECISION
On appeal, Erickson challenges the postconviction court’s denial of his motion to
correct his sentence under Minn. R. Crim. P. 27.03, subd. 9. Because Erickson brought
his rule 27.03 motion seeking to correct a sentence he agreed to in a plea bargain with the
state, we construe his motion as a petition for postconviction relief under Minn. Stat.
§ 590.01, subd. 1 (2014). See State v. Coles, __ N.W.2d __, __, 2015 WL 1652901, at *5
(Minn. Apr. 15, 2015) (holding that a rule 27.03 motion to correct an agreed-upon
sentence entered as the result of a plea bargain “is properly viewed as a petition for
postconviction relief”). We review the denial of a petition for postconviction relief for an
abuse of discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012).
While the parties primarily dispute whether the sentence imposed by the district
court was a proper upward departure from the sentencing guidelines, the dispositive issue
in this case is whether the 30-month sentence ordered by the district court even
3 constitutes a departure. Accordingly, we will first address Erickson’s claim regarding his
proper presumptive sentence under the guidelines.
I.
Erickson first argues that he should not have been given a custody status point
under the sentencing guidelines. The presentence investigation report (PSI) in this case
reported that Erickson accrued a custody status point because he committed the instant
offense within the initial probationary terms of two sentences stemming from prior
convictions. Erickson contends that he should not have been given a custody status point
because these two sentences—one from December 2009, the other from November
2010—involved “phantom” three-year probationary terms, as both sentences provided for
Erickson to be discharged from probation after serving substantial local jail terms. He
claims that these sentences were “functionally identical” to executed sentences. He
asserts that, because he finished serving the associated jail time and was discharged from
probation in both cases before June 13, 2012, he should not have been assigned a custody
status point under Minn. Sent. Guidelines 2.B.2 (Supp. 2011).
The postconviction court rejected this argument, finding that Erickson accrued the
custody status point because his June 2012 offense date fell within the three-year initial
probationary terms imposed in each case. We review the determination of a defendant’s
criminal history score for an abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561
(Minn. App. 2002), review denied (Minn. Aug. 20, 2002).
Erickson is correct that both of his prior sentences contemplated his early
dismissal from probation upon his completion of jail sentences. But, the guidelines
4 indicate that the custody status point is earned by an offender when the new offense is
committed “within the period of the initial probationary sentence.” Minn. Sent.
Guidelines 2.B.2.b. The commentary to the guidelines expressly provides that early
release from probation does not commute or otherwise modify the probationary term for
purposes of calculating the custody point:
The Commission has determined that the potential for a custody status point should remain for the entire period of the probationary sentence. If an offender receives an initial term of probation that is definite, is released from probation prior to the expiration of that term and commits a new crime within the initial term, it is clear that a custody point will be assigned.
Minn. Sent. Guidelines cmt. 2.B.201 (Supp. 2011) (emphasis added). While comments
to the sentencing guidelines are not binding, Asfaha v. State, 665 N.W.2d 523, 526
(Minn. 2003), we typically follow the commentary unless a comment contradicts the
clear and unambiguous language of the guidelines. State v. Rouland, 685 N.W.2d 706,
708–09 (Minn. App. 2004) (collecting cases), review denied (Minn. Nov. 23, 2004). We
see no contradiction here requiring us to deviate from the commentary and interpret the
guidelines as proposed by Erickson.
In this case, the sentencing documents cited by Erickson in support of his
argument clearly show that he was initially sentenced to separate three-year probationary
terms for the prior offenses in question. The earlier of these two terms would have ended
on December 11, 2012, while the later term would have ended on November 22, 2013.
Because the June 2012 offense dates in this case occurred during the initial probationary
terms of two of Erickson’s prior sentences, he accrued a custody status point under the
5 sentencing guidelines. Therefore, we conclude that the postconviction court did not
abuse its discretion by rejecting Erickson’s challenge to the district court’s calculation of
his presumptive sentence.
II.
Erickson raises several additional arguments characterizing the district court’s 30-
month sentence as an impermissible departure from the sentencing guidelines. However,
we need not reach these arguments because he received a guidelines sentence. “This
court will not generally review a district court’s exercise of its discretion to sentence a
defendant when the sentence imposed is within the presumptive guidelines range.” State
v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010).
We overturn presumptive sentences only in the “rare” case, and we will not “modify a
sentence within the presumptive range absent compelling circumstances.” Id. (quotations
omitted).
As represented in the PSI and not challenged by Erickson on appeal, the offense of
financial transaction card fraud is a severity level 3, and Erickson has a criminal history
score of 12. See Minn. Sent. Guidelines 5 (Supp. 2011) (providing that financial
transaction card fraud of over $2,500 is a severity level 3 offense). Under the guidelines,
that offense severity level and criminal history score result in a presumptive commitment
to state imprisonment for 23 months, with a range between 20 to 27 months. Minn. Sent.
Guidelines 4 (Supp. 2011). But, as we stated above, Erickson accrued a custody status
point because he committed the offense within the initial probationary terms of two prior
sentences. See Minn. Sent. Guidelines 2.B.2.b. If an offender already has six or more
6 criminal history points, a custody status point adds three months to the presumptive
duration and range provided in the appropriate cell. Minn. Sent. Guidelines 2.B.2. Thus,
as calculated in his PSI, Erickson’s offense carried a presumptive commitment to state
imprisonment for 26 months, with a range inside the cell between 23 to 30 months. See
Minn. Sent. Guidelines 4.
“A sentence within the range provided in the appropriate box on the sentencing
guidelines grid is not a departure from the presumptive sentence.” Delk, 781 N.W.2d at
428–29. Therefore, the 30-month prison sentence the district court imposed was not a
departure from the guidelines. The record further indicates that the district court
proceeded under the assumption that its sentence was presumptive: the prosecutor
represented to the district court that this sentence was not a departure from the guidelines,
and the district court did not indicate that it was departing from the guidelines or file a
departure report to accompany its sentencing order. And, because the district court
imposed a presumptive sentence, the district court was not required to ascertain
“identifiable, substantial and compelling circumstances” and make the departure findings
Erickson alleges should have been made. Cf. Minn. Sentencing Guidelines 2.D (Supp.
2011).
Because Erickson’s remaining arguments proceed under the erroneous assumption
that the district court upwardly departed in its sentence, these arguments must fail.
Therefore, the postconviction court did not abuse its discretion by denying his
postconviction motion.
Affirmed.