This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-0827
State of Minnesota, Respondent,
vs.
Javion Tramel Ladon Henry, Appellant.
Filed April 15, 2024 Reversed and remanded Frisch, Judge
Carver County District Court File No. 10-CR-22-527
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Mark Metz, Carver County Attorney, Kevin A. Hill, Assistant County Attorney, Chaska, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Andrew J. Nelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Gaïtas, Presiding Judge; Worke, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
In this direct appeal following sentencing, appellant argues that the district court
abused its discretion by imposing a ten-year conditional-release period that was unauthorized by law and by including out-of-state convictions in calculating his criminal-
history score. Because the district court abused its discretion in both respects, we reverse
appellant’s sentence and remand for the district court to vacate the ten-year conditional-
release period and resentence appellant based on a correct criminal-history score.
FACTS
On June 27, 2022, respondent State of Minnesota charged appellant Javion Tramel
Ladon Henry with one count of failing to register as a predatory offender in violation of
Minnesota Statutes section 243.166, subdivision 5(a)(1) (2020). At a plea hearing on
August 1, 2022, Henry entered a plea of guilty as charged with no agreement as to
sentencing. The state asked whether Henry was aware that he would be subject to a ten-
year conditional-release period after his time in prison. But the state did not inquire about
Henry’s risk level as a predatory offender. 1 Henry’s counsel then questioned Henry to
establish the factual basis for the offense. The district court accepted Henry’s guilty plea
and ordered the completion of a presentence investigation report (PSI).
The probation office generated a PSI, which included Henry’s offense history, and
a sentencing worksheet, which included a criminal-history-score calculation. As part of its
calculation, the probation office relied on three California sexual-battery felony
convictions (all with the same offense date) and one North Dakota felony conviction for
1 Minnesota law requires that a person register as a predatory offender if they are convicted of certain offenses specified by the legislature. Minn. Stat. § 243.166, subd. 1b (Supp. 2021). A committee created by the Minnesota Department of Corrections Commissioner, after conducting a risk assessment, assigns the offender a risk level of I, II, or III depending on the risk that the person will reoffend. Minn. Stat. § 244.052, subd. 3(a), (e) (2022).
2 failing to register as a predatory offender. It also included two Minnesota felony
convictions: one for failing to register as a predatory offender and another for third-degree
assault. Henry’s felony criminal-history score was six and one-half points, with four and
one-half points assigned for the California convictions, one point for the North Dakota
conviction, and one and one-half point for the Minnesota convictions. Henry’s total
criminal-history score, according to the calculations, was six.
At the sentencing hearing, the parties agreed that there were no errors in the
criminal-history-score calculation, and the state did not provide any additional evidence
relating to the out-of-state convictions. Based on a criminal-history score of six, the district
court sentenced Henry to 31 months’ imprisonment and a ten-year conditional-release
term. Henry challenges his sentence in this appeal.
DECISION
I. The imposition of the ten-year conditional-release period is unauthorized by law.
Henry first argues that the district court erred by imposing a ten-year conditional-
release period because it had no factual basis upon which it could order such a sentence,
and that in the absence of such a factual basis, the district court must vacate the conditional-
release period. The state agrees that the district court erred because it lacked a factual basis
to impose the conditional-release period, but it argues that the matter should be remanded
for the district court to conduct a sentencing trial.
Minnesota statutes section 243.166, subdivision 5a (2020), provides that when a risk-
level-III offender is convicted for violating the predatory-offender registration
3 requirement, “the court shall provide that after the person has been released from prison,
the commissioner shall place the person on conditional release for ten years.” A “court
simply lacks authority . . . to impose a 10-year term of conditional release on a defendant
convicted of failing to register as a predatory offender without the required jury finding or
admission by the defendant that the defendant is a risk-level-III offender.” Reynolds v.
State, 888 N.W.2d 125, 130 (Minn. 2016) (citing State v. Her, 862 N.W.2d 692, 695 (Minn.
2015)). Because there was no jury finding or admission by Henry that he was a risk-level-
III offender, the imposition of the ten-year conditional-release period was unauthorized by
law.
There is no authority to support the state’s suggested remedy that the district court
hold a sentencing trial on remand when the facts presented to the district court did not
establish an aggravating factor beyond a reasonable doubt. To the contrary, the supreme
court acknowledged in Hankerson v. State, 723 N.W.2d 232, 238-39 (Minn. 2006), that
double jeopardy may preclude a consideration of an aggravating sentencing factor on
resentencing when the state presented insufficient evidence at the first trial to support the
adoption of the aggravating factor. While the failure to present sufficient facts here
occurred at the plea hearing rather than at trial, the state offers no authority or argument
supporting its position that the same principles do not apply. 2 We must therefore reverse
2 The state summarily maintains that it is “clear that Defendant was designated risk-level- III at the time of his violation.” However, it cites no record evidence in support of that proposition, and our independent review of the record reveals none.
4 Henry’s sentence and remand with instructions to the district court to vacate the
conditional-release period.
II. The district court abused its discretion by considering out-of-state convictions that were not proven by a preponderance of the evidence.
Henry challenges the district court’s calculation of his criminal-history score on
three grounds. First, Henry contends that the district court erred by relying on out-of-state
convictions that the state did not prove by a preponderance of the evidence. Second, he
contends that the state failed to prove that all of his California sexual-battery convictions
were properly included in the calculation. And third, he contends that the state failed to
prove the severity level of the California sexual-battery convictions. We will reverse a
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This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-0827
State of Minnesota, Respondent,
vs.
Javion Tramel Ladon Henry, Appellant.
Filed April 15, 2024 Reversed and remanded Frisch, Judge
Carver County District Court File No. 10-CR-22-527
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Mark Metz, Carver County Attorney, Kevin A. Hill, Assistant County Attorney, Chaska, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Andrew J. Nelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Gaïtas, Presiding Judge; Worke, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
In this direct appeal following sentencing, appellant argues that the district court
abused its discretion by imposing a ten-year conditional-release period that was unauthorized by law and by including out-of-state convictions in calculating his criminal-
history score. Because the district court abused its discretion in both respects, we reverse
appellant’s sentence and remand for the district court to vacate the ten-year conditional-
release period and resentence appellant based on a correct criminal-history score.
FACTS
On June 27, 2022, respondent State of Minnesota charged appellant Javion Tramel
Ladon Henry with one count of failing to register as a predatory offender in violation of
Minnesota Statutes section 243.166, subdivision 5(a)(1) (2020). At a plea hearing on
August 1, 2022, Henry entered a plea of guilty as charged with no agreement as to
sentencing. The state asked whether Henry was aware that he would be subject to a ten-
year conditional-release period after his time in prison. But the state did not inquire about
Henry’s risk level as a predatory offender. 1 Henry’s counsel then questioned Henry to
establish the factual basis for the offense. The district court accepted Henry’s guilty plea
and ordered the completion of a presentence investigation report (PSI).
The probation office generated a PSI, which included Henry’s offense history, and
a sentencing worksheet, which included a criminal-history-score calculation. As part of its
calculation, the probation office relied on three California sexual-battery felony
convictions (all with the same offense date) and one North Dakota felony conviction for
1 Minnesota law requires that a person register as a predatory offender if they are convicted of certain offenses specified by the legislature. Minn. Stat. § 243.166, subd. 1b (Supp. 2021). A committee created by the Minnesota Department of Corrections Commissioner, after conducting a risk assessment, assigns the offender a risk level of I, II, or III depending on the risk that the person will reoffend. Minn. Stat. § 244.052, subd. 3(a), (e) (2022).
2 failing to register as a predatory offender. It also included two Minnesota felony
convictions: one for failing to register as a predatory offender and another for third-degree
assault. Henry’s felony criminal-history score was six and one-half points, with four and
one-half points assigned for the California convictions, one point for the North Dakota
conviction, and one and one-half point for the Minnesota convictions. Henry’s total
criminal-history score, according to the calculations, was six.
At the sentencing hearing, the parties agreed that there were no errors in the
criminal-history-score calculation, and the state did not provide any additional evidence
relating to the out-of-state convictions. Based on a criminal-history score of six, the district
court sentenced Henry to 31 months’ imprisonment and a ten-year conditional-release
term. Henry challenges his sentence in this appeal.
DECISION
I. The imposition of the ten-year conditional-release period is unauthorized by law.
Henry first argues that the district court erred by imposing a ten-year conditional-
release period because it had no factual basis upon which it could order such a sentence,
and that in the absence of such a factual basis, the district court must vacate the conditional-
release period. The state agrees that the district court erred because it lacked a factual basis
to impose the conditional-release period, but it argues that the matter should be remanded
for the district court to conduct a sentencing trial.
Minnesota statutes section 243.166, subdivision 5a (2020), provides that when a risk-
level-III offender is convicted for violating the predatory-offender registration
3 requirement, “the court shall provide that after the person has been released from prison,
the commissioner shall place the person on conditional release for ten years.” A “court
simply lacks authority . . . to impose a 10-year term of conditional release on a defendant
convicted of failing to register as a predatory offender without the required jury finding or
admission by the defendant that the defendant is a risk-level-III offender.” Reynolds v.
State, 888 N.W.2d 125, 130 (Minn. 2016) (citing State v. Her, 862 N.W.2d 692, 695 (Minn.
2015)). Because there was no jury finding or admission by Henry that he was a risk-level-
III offender, the imposition of the ten-year conditional-release period was unauthorized by
law.
There is no authority to support the state’s suggested remedy that the district court
hold a sentencing trial on remand when the facts presented to the district court did not
establish an aggravating factor beyond a reasonable doubt. To the contrary, the supreme
court acknowledged in Hankerson v. State, 723 N.W.2d 232, 238-39 (Minn. 2006), that
double jeopardy may preclude a consideration of an aggravating sentencing factor on
resentencing when the state presented insufficient evidence at the first trial to support the
adoption of the aggravating factor. While the failure to present sufficient facts here
occurred at the plea hearing rather than at trial, the state offers no authority or argument
supporting its position that the same principles do not apply. 2 We must therefore reverse
2 The state summarily maintains that it is “clear that Defendant was designated risk-level- III at the time of his violation.” However, it cites no record evidence in support of that proposition, and our independent review of the record reveals none.
4 Henry’s sentence and remand with instructions to the district court to vacate the
conditional-release period.
II. The district court abused its discretion by considering out-of-state convictions that were not proven by a preponderance of the evidence.
Henry challenges the district court’s calculation of his criminal-history score on
three grounds. First, Henry contends that the district court erred by relying on out-of-state
convictions that the state did not prove by a preponderance of the evidence. Second, he
contends that the state failed to prove that all of his California sexual-battery convictions
were properly included in the calculation. And third, he contends that the state failed to
prove the severity level of the California sexual-battery convictions. We will reverse a
district court’s criminal-history-score calculation only when the district court abused its
discretion. State v. Maley, 714 N.W.2d 708, 711 (Minn. App. 2006). Because the district
court abused its discretion by considering out-of-state convictions that were not proven by
a preponderance of the evidence, we address only Henry’s first contention.
The Minnesota Sentencing Guidelines provide the framework for calculating a
defendant’s criminal score, and a defendant’s out-of-state felony convictions must be used
in that calculation. Id.; Minn. Sent’g Guidelines 2.B (Supp. 2021). But the district court
may only include out-of-state convictions in the score calculation if the state provides a
sufficient foundation to prove by a “preponderance of the evidence that the prior conviction
was valid, the defendant was the person involved, and the crime would constitute a felony
in Minnesota.” Maley, 714 N.W.2d at 711. This burden is not satisfied when the state
relies only on a PSI and the sentencing worksheet. See id. at 710-13 (holding that the state
5 did not prove the convictions by a preponderance of the evidence when it relied only on
uncertified documents, a PSI, and a sentencing worksheet). The PSI and sentencing
worksheet were the only bases upon which the state relied to establish the out-of-state
convictions. The district court therefore abused its discretion by considering the out-of-
state convictions. Because Henry did not challenge his criminal-history-score calculation
before the district court, we remand to the district court to allow the state to “further
develop the sentencing record.” State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008),
rev. denied (Minn. July 15, 2008).
Reversed and remanded.