STATE OF MINNESOTA IN COURT OF APPEALS A25-0094
State of Minnesota, Respondent,
vs.
Antonio Devell Johnson, Appellant.
Filed January 20, 2026 Reversed and remanded Ede, Judge
Ramsey County District Court File No. 62-CR-24-2858
Keith Ellison, Attorney General; and St. Paul, Minnesota; and
John Choi, Ramsey County Attorney, Anna R. Light, Assistant County Attorney, St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Ede, Judge.
SYLLABUS
To justify a district court’s inclusion of out-of-state convictions in a defendant’s
criminal-history score, the State of Minnesota does not satisfy its burden of establishing
the validity of the convictions and that the defendant was the person involved by relying
solely on a presentence investigation report that does not meet the standard set forth in
Minnesota Rule of Evidence 1005. OPINION
EDE, Judge
In this appeal from final judgments of conviction for first-degree aggravated
robbery, second-degree assault, and threats of violence, appellant challenges the district
court’s sentence, which relied on three unobjected-to out-of-state convictions in calculating
his criminal-history score. Because respondent did not satisfy its burden of establishing the
facts necessary to justify the district court’s inclusion of the out-of-state convictions in
appellant’s criminal-history score, we conclude that the court abused its discretion in
sentencing appellant. We therefore reverse and remand to allow respondent to further
develop the sentencing record in the district court.
FACTS
Respondent State of Minnesota charged appellant Antonio Devell Johnson with
aggravated robbery, in violation of Minnesota Statutes section 609.245, subdivision 1
(2022), second-degree assault, in violation of Minnesota Statutes section 609.222,
subdivision 1 (2022), and threats of violence, in violation of Minnesota Statutes section
609.713, subdivision 1 (2022). The matter proceeded to a court trial. The district court
found Johnson guilty of all three charged offenses and ordered the completion of a
presentence investigation report (PSI). 1
1 Materials filed as confidential in the district court remain nonpublic on appeal. Minn. R. Civ. App. P. 112.02, subd. 1. But we are not precluded “from mentioning the contents” of confidential or sealed documents when the information is “relevant to the particular issues or legal argument being addressed in the proceeding.” Minn. R. Pub. Access to Recs. of Jud. Branch 4, subd. 4. We limit our recitation of the facts set forth in the PSI to the information that is relevant to the issues and arguments presented in this appeal.
2 The resulting PSI recommended that the district court assign Johnson six criminal-
history points, including two-and-one-half points for out-of-state convictions. “[B]ased
upon records made available to [Ramsey] Community Corrections,” the PSI described the
out-of-state convictions as follows:
05/22/10 Burglary – School / Daycare/ Place [of] Worship. (Severity level 5; 1 pt) Cook County, IL. 08/10/10, sentenced to 5 years imprisonment – DOC and 2 years MSR; credit 82 days. Paroled out: 04/15/11. Discharged: 05/08/12. Court file 10CR-103100
• 720 ILCS 5/19-1 (A) is a class 1 felony [and] is punishable [by] no less than 4 years and up to 15 years. Based on [the] offense description and sentence received, this offense appears comparable to M.S. 609.582.2(b); Burglary – 2nd Degree. • According to the criminal complaint, Defendant knowingly entered a place of worship: World Harvest Church, with the intent to commit a theft.
05/31/11 Ct. 2) Knowingly Damage Property. (Severity level 2; .50 pt) Cook County, IL. 08/31/11, sentenced to 2 years imprisonment-DOC; 1 year MSR, credit 93 days. Paroled out: 05/25/12. Discharged: 01/18/13. Court file 11CR-092830
• 720 ILCS 5.0/21-1-1-A is a class 4 felony [and] is punishable [by] no less than 1 year and up to 3 years. Based on [the] offense description and sentence received, this offense appears comparable to M.S. 609.595.1, Criminal Damage to Property. • According to the criminal complaint, without consent, Defendant damaged . . . land surveyor equipment, exceeding $300 but . . . not exceed[ing] $10,000.
3 09/09/12 Burglary. (Severity level 5; 1 pt) Cook County, IL. 10/15/15, sentenced to 3 years imprisonment – DOC; 2 year MSR; credit 419 days; consecutive to 14CR1583301. Paroled out: 02/16/17. Discharged: 07/27/20. Court file 12CR-175530
• 720 ILCS 5/19-1-(A) is a class 2 felony [and] is punishable no less than 3 years and up to 7 years. Based on [the] offense description and sentence received, this offense appears comparable to M.S. 609.582.2(b); Burglary – 2nd Degree. • According to the criminal complaint, Defendant knowingly entered, without authority[,] the property of M.N. through [the] garage, with the intent to commit theft.
An accompanying sentencing worksheet lists the same recommended criminal-history
points for the foregoing out-of-state convictions. The PSI also includes a number of
hyperlinks under the heading, “Illinois, Cook County Clerk of Court - criminal complaint
and court documents,” but the links are to webpages about Illinois statutes rather than any
criminal complaint or document concerning the out-of-state convictions.
At sentencing, Johnson represented himself and was assisted by advisory counsel.
Johnson did not object to the assignment of criminal-history points based on the out-of-
state convictions. 2 But he did not admit facts relating to any of those convictions and did
2 The district court asked Johnson if he had had the opportunity to review the PSI and whether he had any additions or corrections to it. Johnson responded: “I really don’t understand how they got this. This seem[s] like it’s going against me more than . . . what I spoke to the PSI agent [about]. But I see what they [have] on the paper . . . .” Johnson’s advisory counsel challenged the presumptive sentencing guidelines range on an issue other than criminal-history points arising from the out-of-state convictions, and the district court
4 not concede that the PSI’s descriptions of the convictions were accurate. The state relied
on the PSI in requesting that the district court impose a sentence within the presumptive
guidelines range and did not present any testimony or other evidence to establish the facts
necessary to justify the district court’s inclusion of the out-of-state convictions in Johnson’s
criminal-history score.
Consistent with the recommendation of the PSI, the district court determined that
the presumptive sentencing guidelines range was 104 to 141 months, with a presumptive
duration of 120 months, based on a 12-month enhancement under Minnesota Sentencing
Guidelines 2.G.13.b (Supp. 2023), an offense severity level of 8, and six criminal-history
points, which included one point each for the two Illinois burglary cases and one-half point
for the Illinois property-damage case. The district court sentenced Johnson to 104 months’
incarceration on the aggravated robbery charge—the lowest term within the presumptive
guidelines range. Although it convicted him of the second-degree assault and threats-of-
violence charges, the district court did not pronounce sentences on those counts.
Johnson appeals.
ISSUE
Did the state satisfy its burden of establishing the facts necessary to justify the
district court’s inclusion of the out-of-state convictions in Johnson’s criminal-history score
by relying solely on the PSI?
rejected that argument. Aside from requesting a downward durational departure, neither Johnson nor his advisory counsel raised any challenge to the sentencing guidelines range.
5 ANALYSIS
Johnson contends that the district court abused its discretion by including the three
out-of-state convictions in his criminal-history score. In the district court, Johnson did not
raise this issue. But “because a sentence based on an incorrect criminal history score is an
illegal sentence—and therefore, under Minn. R. Crim. P. 27.03, subd. 9, correctable ‘at any
time’—a defendant may not [forfeit] review of his criminal history score calculation.” State
v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007); see also State v. King, 990 N.W.2d 406,
420 n.7 (Minn. 2023) (“[A] right may be forfeited by the failure to make timely assertion
of the right, while waiver is the voluntary relinquishment of a known right.” (quotations
omitted)).
The state concedes that the district court abused its discretion by assigning points to
Johnson’s criminal-history score based on the PSI’s description of the conviction in Illinois
case number 11CR-092830 (“Knowingly Damage Property”) because the state did not
sufficiently establish the facts necessary to justify the court’s inclusion of that conviction.
But the state nonetheless maintains that the district court did not abuse its discretion in
relying on the PSI’s description of the convictions in Illinois case numbers 10CR-103100
(“Burglary – School / Daycare/ Place [of] Worship”) and 12CR-175530 (“Burglary”),
asserting that the PSI sufficiently establishes the facts of those convictions. We conclude
that, by relying solely on the PSI in this case, the state did not satisfy its burden of
establishing the facts necessary to justify the district court’s inclusion of all three out-of-
state convictions in Johnson’s criminal-history score.
6 “We review determinations of a defendant’s criminal history score for [an] abuse of
discretion[,]” including challenges to the district court’s reliance on out-of-state
convictions. State v. Edwards, 900 N.W.2d 722, 727 (Minn. App. 2017), aff’d mem., 909
N.W.2d 594 (Minn. 2018). Although a district court may rely on out-of-state offenses when
calculating criminal-history points, see Minn. Sent’g Guidelines 2.B.5 (Supp. 2023), the
state must “lay[] foundation for the court to do so,” State v. Maley, 714 N.W.2d 708, 711
(Minn. App. 2006), and “has the burden at a sentencing hearing of establishing the facts
necessary to justify consideration of out-of-state convictions in determining a defendant’s
criminal history score,” State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983).
In particular, the state must “produce evidence to establish by a fair preponderance
of the evidence the validity of the prior convictions, the fact that the defendant was the
person involved, and that the crimes constituted felonies in Minnesota.” State v. Griffin,
336 N.W.2d 519, 525 (Minn. 1983). “An offense may be counted as a felony only if it
would both be defined as a felony in Minnesota, and the offender received a sentence of
366 days or more, which includes the equivalent of a stay of imposition.” Minn. Sent’g
Guidelines 2.B.5.b; see also State v. Pruitt, 16 N.W.3d 856, 860 (Minn. App. 2025)
(explaining the application of Minn. Sent’g Guidelines 2.B.5.b (Supp. 2021) in determining
a defendant’s criminal-history score). The state must satisfy its burden of establishing these
facts to justify a district court’s inclusion of out-of-state convictions in a defendant’s
criminal-history score, and the court abuses its discretion by including those convictions in
the absence of such proof.
7 Establishing the validity of out-of-state convictions and that a defendant was the
person involved does not require the state to supply the district court with certified copies
of conviction records. See Griffin, 336 N.W.2d at 525 (rejecting the defendant’s argument
that, “whenever the defendant wants to put the state to its burden of proving a prior
conviction, the state must come forward with certified copies” as “an absolute requirement
because . . . it is apparently difficult to get certified copies from some places”). Instead, as
the Minnesota Supreme Court explained in Griffin, Minnesota Rule of Evidence 1005
provides the “appropriate standard” to document a conviction. Id. Rule 1005 states:
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
Minn. R. Evid. 1005.
In Griffin, the supreme court affirmed the defendant’s sentence without requiring
the state to introduce a certified copy of the defendant’s out-of-state conviction because
“there was considerable documentation (which [was] appended to defendant’s brief)” that
the court held was “sufficient information to prove by a fair preponderance of the evidence
that defendant had [the] prior conviction.” 336 N.W.2d at 525. And in State v. Jackson, we
cited Griffin and affirmed the defendant’s sentence in the absence of a certified copy of an
out-of-state conviction that the district court included in the defendant’s criminal-history
score. 358 N.W.2d 681, 682–83 (Minn. App. 1984). We did so “[b]ased on the advice and
8 testimony given” by a probation officer who, without objection, “advis[ed] the court as an
officer of the court rather than as a sworn witness.” Id. at 683. The probation officer
provided “[o]ther evidence of the contents of official records” by describing his review of
two “federal presentence investigation[s],” “a letter from the Los Angeles County Sheriff’s
Department,” and “the Los Angeles Probation Department’s card file,” as well as
identifying information that the defendant had provided the probation officer. Id.
In Maley, however, we reached a different conclusion in considering the state’s
reliance on the PSI and its accompanying sentencing worksheet to justify the district court’s
inclusion of two out-of-state convictions—which were otherwise “undocumented” in the
sentencing record—in a defendant’s criminal-history score. 714 N.W.2d at 710–11. We
observed that “Griffin does not relieve the state of its burden to prove out-of-state
convictions by a preponderance of the evidence; rather, it permits the district court to rely
on persuasive evidence that sufficiently substitutes for the official, certified record of
conviction.” Id. at 712.
With that in mind, we reasoned in Maley that “the state failed to introduce evidence
sufficient to meet” the fair-preponderance-of-the-evidence standard because the sentencing
record did “not compare favorably” with that of Griffin, 336 N.W.2d at 525, where “in lieu
of a certified record of conviction [the state had] presented considerable documentation
that proved the defendant had been convicted of the out-of-state offense.” Id. (quotations
omitted). We also reasoned that the sentencing record in Maley “compare[d] unfavorably
with the state’s position” in Jackson, 358 N.W.2d at 683, in which the state had “provided
the district court with the in-court advice and testimony of the probation officer, who
9 detailed for the court the various documents from federal and state probation and law-
enforcement agencies verifying the defendant’s arrest, guilty plea, sentence, and his
identifying personal information.” Id. (quotation omitted). Because the supporting
evidence that the state presented in Maley was not admissible under rule 1005, we held that
the district court abused its discretion by including the out-of-state convictions in the
defendant’s criminal-history score. Id. at 712, 714–15.
Johnson convincingly argues that the district court abused its discretion in
calculating his criminal-history score based on the PSI’s description of the out-of-state
convictions. The state counters that “the detailed PSI” and its accompanying sentencing
worksheet were “sufficient foundation for including the out-of-state convictions in
[Johnson’s] criminal-history score” because the PSI purportedly identified, for each case:
the name of the offense; the jurisdiction; the date of the conviction; the length of each
sentence; the type of sentence; the date of parole; the date of discharge; the court file
number; the relevant Illinois statute; the comparable Minnesota statute; and a brief
description of the offense conduct set forth in the criminal complaint. We agree with
Johnson.
As in Maley, the “alleged [out-of-state] convictions are insufficiently documented
to augment [Johnson’s] sentence.” Id. at 714. The state relied solely on the PSI, which
generally mentions that its summary of Johnson’s criminal history is “based upon records
made available to [Ramsey] Community Corrections” and that the facts underlying the
convictions are “[a]ccording to criminal complaint” in each case. But the PSI does not
otherwise describe the sources of information showing that the out-of-state convictions
10 exist, nor does it establish that Johnson is the person convicted in each case. In fact, its
hyperlinks under the heading, “Illinois, Cook County Clerk of Court - criminal complaint
and court documents,” are not to the criminal complaints or documents concerning the
convictions; they are web pages about Illinois statutes.
The PSI is not a certified copy of the conviction records, it is unsupported by the
testimony of any witness “who has compared it with the original” conviction records, and
there is no showing that a copy of the conviction records complying with the rule “cannot
be obtained by the exercise of reasonable diligence.” Minn. R. Evid. 1005. As a result, the
PSI is not “evidence admissible under rule 1005 supporting the existence of
the . . . challenged [out-of-state] convictions.” Id. at 712. Along with failing “to establish
by a fair preponderance of the evidence the validity of the prior convictions,” the PSI does
not meet the rule 1005 standard as a basis for establishing “the fact that . . . [Johnson] was
the person involved” in each out-of-state conviction. Griffin, 336 N.W.2d at 525. By
relying solely on the PSI to establish the validity of the out-of-state convictions and that
Johnson was the person involved, without introducing other evidence that comports with
rule 1005, the state did not satisfy its burden to justify the district court’s inclusion of the
out-of-state convictions in Johnson’s criminal-history score.
The state’s citation to our nonprecedential opinion in State v. Bauer, No. A23-0769,
2024 WL 1613326, at *2 (Minn. App. Apr. 15, 2024), is unavailing because that case is
both nonbinding and distinguishable. See Minn. R. Civ. App. P. 136.01, subd. 1(c)
(“Nonprecedential opinions . . . are not binding authority except as law of the case, res
judicata or collateral estoppel, but nonprecedential opinions may be cited as persuasive
11 authority.”). In Bauer, we concluded that, based on the specific record before us, the district
court did not abuse its discretion by including out-of-state convictions in the defendant’s
criminal-history score. 2024 WL 1613326, at *2. We reasoned that the state had presented
a detailed PSI that contained “offense descriptions, case numbers, disposition dates,
sentencing information,” and, “[m]ore important, [the defendant] conceded the fact of his
convictions during his guilty-plea hearing.” Id. (emphasis added). Unlike Bauer, Johnson
never conceded the facts of the out-of-state convictions at issue here.
We are similarly unpersuaded by the state’s invocation of our nonbinding decision
in State v. Knowles, No. A17-0004, 2017 WL 6273124 (Minn. App. Dec. 11, 2017), rev.
denied (Minn. Feb. 28, 2018). In Knowles, we concluded that the state had met its burden
of proving the existence of the defendant’s out-of-state convictions when the PSI identified
each conviction and included “all the necessary information (e.g., descriptions of each
crime, relevant dates, value of property, and sentence received).” 2017 WL 6273124, at *5.
We cannot say that Knowles is analogous to this case because our decision in that case does
not elaborate on the nature of the information provided in the PSI.
Moreover, any persuasive value of our nonprecedential decision in Knowles is
overcome by the greater weight of our more recent nonprecedential caselaw, in which we
have applied Maley in reversing sentences when district courts relied solely upon PSIs and
accompanying sentencing worksheets. See, e.g., State v. Johnson, No. A23-1929, 2024 WL
4344822, at *1, *3–4 (Minn. App. Sept. 30, 2024) (concluding that the state “failed to
present any evidence related to [the defendant’s] out-of-state convictions” when it relied
on the PSI and sentencing worksheet to justify the district court’s inclusion of out-of-state
12 convictions in his criminal-history score), rev. denied (Minn. Jan. 21, 2025); State v. Henry,
No. A23-0827, 2024 WL 1613911, at *1, *3 (Minn. App. Apr. 15, 2024) (reasoning that
the state’s “burden is not satisfied when the state relies only on a PSI and the sentencing
worksheet,” and concluding that “[t]he district court . . . abused its discretion by
considering the out-of-state convictions” when “[t]he PSI and sentencing worksheet were
the only bases upon which the state relied to establish the out-of-state convictions”); State
v. Keltner, No. A21-0497, 2022 WL 764242, at *5–6 (Minn. App. Mar. 14, 2022)
(reasoning that “[t]he state’s reliance solely on statements in the PSI is similar to the
approach that this court deemed inadequate in Maley,” and concluding that “the state did
not meet its burden to establish the facts necessary to justify consideration of the [out-of-
state] conviction” and that “the district court [therefore] abused its discretion by including
that conviction in [the defendant’s] criminal-history score”), rev. denied (Min. App. May
31, 2022); State v. Smith, No. A20-0138, 2020 WL 7688601, at *1, *3–4 (Minn. App. Dec.
28, 2020) (concluding that, because the state relied only on the sentencing worksheet, “the
record [did] not include evidence of [the defendant’s] federal conviction that complies with
rule 1005” and “the district court abused its discretion by assigning points to [the
defendant’s] criminal-history score in relation to [that] conviction”).
We therefore hold that, to justify a district court’s inclusion of out-of-state
convictions in a defendant’s criminal-history score, the state does not satisfy its burden of
establishing the validity of the convictions and that the defendant was the person involved
by relying solely on a PSI that does not meet the standard set forth in rule 1005.
13 In sum, we conclude that the PSI does not—as we explained in our precedential
opinion in Maley—establish the facts necessary to justify the district court’s inclusion of
the out-of-state convictions in Johnson’s criminal-history score “by a greater weight of the
evidence” because it is not “of a greater or more convincing effect [that would] lead [a
person] to believe that it is more likely that the claim is true than not true.” 714 N.W.2d at
712 (quotation omitted). Thus, the state failed to meet its burden as to all three Illinois
convictions and the district court abused its discretion by including those convictions in
Johnson’s criminal-history score. 3
Johnson asks that we “remand for resentencing on [his aggravated robbery
conviction] to a bottom-of-the-box sentence based on a correctly determined criminal-
3 As an additional basis for reversal that applies to the inclusion of Illinois case number 11CR-092830 (“Knowingly Damage Property”) in Johnson’s criminal-history score, we agree with the parties that, by relying solely on the PSI, the state did not establish that the Illinois crime constituted a felony in Minnesota. See Griffin, 336 N.W.2d at 525. Although the PSI states that the “offense appears comparable to [Minnesota Statutes section] 609.595.1, Criminal Damage to Property,” the information set forth in the PSI is insufficient to satisfy the state’s burden. This is because, while the PSI describes the offense as involving damage to “land surveyor equipment, exceeding $300 but . . . not exceed[ing] $10,000,” the PSI does not specify the reduction in the equipment’s value, as measured by the cost of repair and replacement. Consequently, it is unclear whether the dollar amount of property damage at issue would meet the requirements of the Minnesota statute referenced in the PSI. See Minn. Stat. § 609.595, subd. 1 (2008) (as relevant here, defining criminal damage to property in the first degree as including when “the damage reduces the value of the property by more than $1,000 measured by the cost of repair and replacement”). Because it relied only on the PSI and did not produce evidence that the offense involved in Illinois case number 11CR-092830 is equivalent to Minnesota Statutes section 609.595, subdivision 1, the state did not satisfy its burden of establishing the facts necessary to justify the district court’s inclusion of one-half point in Johnson’s criminal- history score for this out-of-state conviction.
14 history score.” 4 We decline to do so in light of “the great discretion vested in the district
court in sentencing matters” and our recognition under analogous circumstances that “not
every defendant who receives a top or bottom end of the presumptive range . . . need
necessarily receive a similarly situated sentence . . . when resentenced with a correct
criminal history score.” State v. Provost, 901 N.W.2d 199, 202 (Minn. App. 2017). Instead,
because Johnson did not object to the district court’s reliance on the out-of-state
convictions to calculate his criminal-history score, we reverse and remand to allow the state
to further develop the sentencing record so that the court can make a proper determination.
See State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008), rev. denied (Minn. July 15,
2008) (“The record indicates that appellant did not object to the district court’s
determination that his out-of-state convictions were felonies. Thus, on remand, respondent
is permitted to further develop the sentencing record so that the district court can
appropriately make its determination.”).
DECISION
To justify a district court’s inclusion of out-of-state convictions in a defendant’s
criminal-history score, the state does not satisfy its burden of establishing the validity of
the convictions and that the defendant was the person involved by relying solely on a PSI
that does not meet the standard set forth in Minnesota Rule of Evidence 1005. In this case,
the state failed to meet its burden as to all three Illinois convictions and the district court
4 “Each box in the Sentencing Guidelines grid contains a presumptive range and a presumptive duration. The longest and shortest terms in the presumptive range are commonly called the ‘top of the box’ and the ‘bottom of the box.’” State v. Morgan, 968 N.W.2d 25, 28 n.2 (Minn. 2021) (citations omitted).
15 abused its discretion by relying on the PSI alone to calculate Johnson’s criminal-history
score based on those convictions. Accordingly, we reverse and remand to allow the state
to further develop the sentencing record so that the district court can make a proper
determination.
Reversed and remanded.