State v. Strobel

State of Minnesota, Respondent, v. Donald Albert Strobel, Appellant.

A20-0946

STATE OF MINNESOTA IN COURT OF APPEALS

February 22, 2021

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Affirmed

Cochran, Judge

Wabasha County District Court

File No. 79-CR-16-1112

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Karen Kelly, Wabasha County Attorney, Wabasha, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Jesson, Judge; and Cochran, Judge.

NONPRECEDENTIAL OPINION

COCHRAN, Judge

Appellant was convicted of a first-degree controlled-substance crime and sentenced to 115-months' imprisonment. This court reversed the sentence and remanded for resentencing because the state did not establish that a prior conviction included in appellant's criminal-history score as a felony was properly classified as such. State v. Strobel (Strobel I), 921 N.W.2d 563, 577 (Minn. App. 2018), aff'd 932 N.W.2d303 (Minn. 2019). The supreme court affirmed. State v. Strobel (Strobel II), 932 N.W.2d 303, 310 (Minn. 2019).

This appeal arises from the district court's decision to again impose a 115-month sentence after determining that the state met its burden on remand to prove that the prior offense constituted a felony. Appellant argues that his current sentence must be reversed because the district court (1) erred by allowing the state time to submit additional evidence after an initial hearing on resentencing, (2) violated his Sixth Amendment rights by increasing the sentencing range based on judicial fact-finding, and (3) abused its discretion by concluding that the state proved that his prior conviction is a felony. We conclude that the district court did not err by permitting the state to submit additional evidence, did not engage in impermissible fact finding, and did not abuse its discretion in reaching its conclusion that the state proved that appellant's prior conviction was a felony. Therefore, we affirm.

FACTS

In 2017, a jury found Strobel guilty of first-degree sale of methamphetamine and second-degree possession of methamphetamine. The district court sentenced Strobel to concurrent prison terms of 115 months and 108 months for the first- and second-degree convictions, respectively. The 115-month sentence was the presumptive guidelines sentence based on a criminal-history score of five, as indicated in a sentencing worksheet. The score included a one-half felony point for a 2012 fifth-degree controlled-substance- possession offense. Had the one-half point not been assigned for the 2012 offense, Strobel would have had a total criminal-history score of four, which would have resulted in a lower presumptive sentence of 105 months. Strobel I, 921 N.W.2d at 573-74; see Minn. Sent. Guidelines 4.C (2016) (showing a presumptive sentence of 105 months for a severity level D8 offense with a criminal-history score of four).

Strobel appealed from his sentence for the first-degree offense,¹ arguing that the state did not prove that his 2012 offense should be classified as a felony when calculating his criminal-history score. Strobel I, 921 N.W.2d at 574. He relied on the Drug Sentencing Reform Act (DSRA), which made substantial changes to Minnesota's drug statutes. Id. He maintained that the state had the burden to show that his 2012 offense would be considered a felony under the changes made by the DSRA, which it failed to do. Id. at 575.

We agreed with Strobel. Id. at 577. We first noted that a "defendant's prior offense may be classified as a felony only if the prior offense would constitute a felony under Minnesota law at the time the current offense was committed." Id. at 574. We then determined that Strobel committed the current, first-degree offense after the effective date of the DSRA, which created a new category of fifth-degree controlled-substance-possession crime that is punishable as a gross misdemeanor. Id. Under the DSRA amendment, a fifth-degree controlled-substance crime is a gross misdemeanor, as opposed to a felony, where a person who does not have a prior controlled-substance conviction possessed "less than 0.25 grams or one dosage unit or less" of a drug other than heroin, or "less than 0.05 grams of heroin." Minn. Stat. § 152.025, subd. 4(a) (2018). Accordingly, to show that Strobel's 2012 fifth-degree controlled-substance-possession offense was a felony under the DSRA amendment, rather than a gross misdemeanor, the state was required to present evidence about the type and amount of drug that Strobel had possessed. Strobel I, 921 N.W.2d at 574-77. Because the state failed to do so, we concluded that the district court erred by assigning the one-half felony point for Strobel's 2012 fifth-degree possession conviction in his criminal-history score, and we remanded the case "with instructions permitting the state to develop the record regarding the type and amount of controlled substance underlying Strobel's 2012 conviction." Id. at 577. The supreme court affirmed our decision. Strobel II, 832 N.W.2d at 310.

In January 2020, the district court conducted a new sentencing hearing. At the hearing, the state first made a legal argument that it need only establish the place and date of Strobel's 2012 offense to prove that it is a felony. In the alternative, the state provided a copy of the criminal complaint underlying Strobel's 2012 conviction, which showed that Strobel was charged with two counts of fifth-degree possession. The complaint alleged that during a search of Strobel's residence, officers found more than 42.5 grams of marijuana. The complaint also alleged that officers found an unknown crystal-like substance weighing 12.52 ounces in the residence. The state asserted that because the complaint showed the type and amount of drugs that Strobel had possessed, the complaint satisfied the state's burden of proof. The district court did not accept the state's legal argument and declined to sentence Strobel on the basis of the complaint alone. Instead, the court directed the state to file a transcript of the plea hearing in the 2012 case so that the court could "look at the factual basis to see really what Mr. Strobel admitted to" regarding the type and amount of controlled substance he had possessed. The district court also ordered the parties to file written arguments. Defense counsel objected to the court allowing the state additional time to obtain the plea-hearing transcript.

The state then filed the plea-hearing transcript from the 2012 case. The transcript shows that Strobel entered an Alford plea to the charge. The transcript states the following, in relevant part:

Prosecutor: And, finally, in file ending in 2015, that's the Controlled Substance file, again, can the judge accept this Complaint for a fact basis on that one as well?

Strobel: Yes.

Prosecutor: Now understanding the Alford plea on this one as well, if the State were to present evidence from officers from September 14th of 2011 and they were to testify that they found you in possession of a controlled substance, I believe it was marijuana weighing over 42.5 grams, would a jury have a strong probability of convicting you on that offense?

Defense counsel: If I can inquire?

Defense counsel: You would agree that—that the information contained in the Complaint, it'll allege that you had a controlled substance in your residence?

Strobel: Right.

Defense counsel: And that substance was either methamphetamine or—or some drug that is a schedule narcotic that you weren't allowed to have— Strobel: Yeah.

Defense counsel: —correct? And because of that you would agree that it was in your house? That's what they can consider constructive possession?

Strobel: Okay.

Defense counsel: And with that information contained in the Complaint and the police reports, and if that was presented to a jury, there would be a good likelihood that you would be found guilty?

Strobel: Yes.

After reviewing the plea-hearing transcript and complaint, the district court concluded in an order dated March 2020 that "[t]he state has met its burden on remand to show the weight and type of controlled substance associated with [Strobel's] 2012 conviction for fifth-degree controlled-substance possession." The district court noted that the "complaint indicates that 'more than 42.5 grams' of marijuana and an unknown crystal-like substance weighing 12.52 ounces was found in [Strobel's] possession." It determined that Strobel "did not make a responsive admission" about possessing more than 42.5 grams of marijuana, but "did, however, make a responsive admission . . . to illegally possessing the drugs (methamphetamine or some drug that is a schedule narcotic) described in the complaint." The district court accordingly concluded that the complaint and plea-hearing transcript "establish that [Strobel] possessed more than .25 grams of a controlled substance other than heroin" and that the 2012 conviction "is classified as a felony." It therefore determined that Strobel's criminal-history score was five, as previously determined, and sentenced Strobel to 115 months' imprisonment with credit for time served.

Following the district court's order, Strobel moved for reconsideration. He argued that the district court should reconsider his prior motion for a downward dispositional departure and that the court failed to comply with certain procedural rules at the sentencing hearing. The district court then held a second sentencing hearing, at which it denied Strobel's motion and reaffirmed his 115-month sentence. Strobel appeals.

DECISION

Strobel raises three alternative arguments on appeal. He argues that this court must reverse and remand his case for resentencing on his first-degree conviction because the district court (1) erred by continuing the sentencing hearing to allow the state to file the 2012 plea-hearing...