Even though criminal history may go back several years, the Guidelines in effect when the current offense was committed must be used to determine the eligibility of and to assign the point or unit values for previous offenses. The only exception to this is when the offense severity level is determined by a monetary threshold. The weight assigned to the prior will be based on the severity level assigned when the monetary threshold was in effect.
The offense level (felony, misdemeanor etc.) is determined in part by the sentence imposed. See Minn. Stat. § 609.13. The definitions of offense levels is found in Minn. Stat. § 609.02 subd. 2-4a.
Eligible Prior Felony Offenses are offenses that received an imposed felony level sentence or a stay of imposition for a felony level offense prior to sentencing on the current offense(s).
Step #1 Use the Guidelines in effect when the current felony offense occurred.
Step #2 Find the Severity Level that is currently assigned to the prior felony offense.
Step #3 Use the appropriate weighting scale based on the type of current offense. There are two weighting scales: one for offenses that will be sentenced using the Sex Offender Grid and the other for offenses that will be sentenced using the Standard Grid.
Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines § 2.B.1.
Eligible Misdemeanor and Gross Misdemeanor Offenses are offenses that received an imposed misdemeanor or gross misdemeanor sentence or a stay of imposition for a misdemeanor or gross misdemeanor offense prior to sentencing on the current offense. The eligibility of misdemeanor and gross misdemeanor offenses for inclusion in criminal history will depend on the date the current offense is committed. If the current offense was on or after August 1, 2010 eligible priors include targeted misdemeanors, all non-traffic gross misdemeanors, and DWIs. For offenses committed prior to August 1, 2010, the offense must be on the Misdemeanor and Gross Misdemeanor Offense List. Eligible priors in the gross misdemeanor/misdemeanor section are generally assigned 1 unit; 4 units make 1 criminal history point.
Electronic Worksheet System Hint: Priors in the Misd./GM Section
In 2010, the Guidelines Commission eliminated the Misdemeanor and Gross Misdemeanor Offense List, and implemented a policy of allowing all gross misdemeanor and targeted misdemeanor offenses to be used in criminal history. If the date of offense is August 1, 2010 or later, make sure that any prior misdemeanors you are using are targeted misdemeanors as defined in Minn. Stat. § 299C.10, subd. 1(e).
Minn. Stat. § 609.13 provides that even if the offense level is higher, the conviction will be deemed to be for a gross misdemeanor or misdemeanor if the sentence given is within those limits. Guidelines section 2.B.3 provides that these reduced convictions must be included in the misdemeanor/gross misdemeanor section of the criminal history score. Because the conviction level can depend on the sentence imposed, it is important to indicate the offense level on the worksheet after each felony offense sentenced as a gross misdemeanor or misdemeanor and after each gross misdemeanor sentenced as a misdemeanor. To help the worksheet move smoothly through the review process, indicate the conviction level by including (GM) for gross misdemeanor and (M) for misdemeanor. For example, if a felony theft offense is sentenced as a gross misdemeanor, if (GM were indicated, MSGC staff would not need to place the worksheet on hold to check on the offense level.
Key Point: Although all felony level convictions sentenced to less than 1 year and 1 day are eligible to be used in the misdemeanor/gross misdemeanor section for 1 unit, this does not apply to gross misdemeanor offenses sentenced to a misdemeanor level duration. These offenses must be found on the Targeted Misdemeanor list in order to be assigned 1 unit
Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines § 2.B.3.
Eligible Prior Juvenile Offenses are felony-level offenses for which the juvenile was adjudicated delinquent prior to sentencing on the current offense. The juvenile adjudications must have been for offenses committed after the offender's fourteenth birthday and the offender must have been under the age of twenty-five when the offender committed the current felony.
Digging Deeper: Criteria for Additional Juvenile History Points
An offender may receive only one point for juvenile adjudications, but the point limit does not apply to juvenile adjudications for offenses for which the Sentencing Guidelines would presume imprisonment if the offense had been committed by an adult.
Click here for an example
Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines § 2.B.4.
An Eligible Non-Minnesota Offense is used in criminal history based on how it relates to Minnesota law and sentencing policies. Keep in mind, there is no special trick to equating a non-Minnesota offense to a Minnesota offense for criminal history. The final determination of how a non-Minnesota offense is used in criminal history is up to the court. This is especially important in situations where there is not sufficient information to equate the non-Minnesota offense to a Minnesota offense.
Helpful Tools: Accessing other States’ Statutes is the best way to gain information about an offense. The Legal Information Institute, housed at Cornell University Law School, provides links on its website to state statute resources across the country. For your convenience, here are direct links to the more common states: Illinois, Iowa, North Dakota, South Dakota, and Wisconsin. For federal offenses, the Office of the Law Revision Counsel provides a link to the United States Code. For finding the Minnesota statute, the Office of the Revisor of Statutes publishes statutes that can be searched by number or keyword.
Caution: Just because the non-MN offense says "Theft of Property"or "Controlled Substance," there are certain thresholds found in statute that have to be met before the offense can be assigned a value in criminal history. See our example theft offense for more information. For controlled substance offenses, both the drug and the amount will need to be known to find the Minnesota equivalent. This handout, MN Controlled Substance Thresholds, will assist you when you have that information in determining which degree of drugs the non-Minnesota prior should be equated to.
After determining a Minnesota equivalent offense, the prior offense may be eligible to be used criminal history under the policies outlined in Minn. Sentencing Guidelines § 2.B. For example, offenses equating to a felony in definition will be used in criminal history in accordance to the policies in § 2.B.1 and statutory equivalents to gross misdemeanors and misdemeanors will be used in criminal history in accordance to the policies in § 2.B.3. To determine if the offense should be used for a custody status, see the policies in § 2.B.2.
Remember that a non-Minnesota offense may be counted as a felony in criminal history only if it would be defined as a felony in Minnesota and the offender received an imposed sentence of at least 1 year and 1 day or the equivalent of a stay of imposition. If the prior offense meets the definition of a Minnesota felony but the offender received a sentence of less than 1 year and 1 day, Guidelines policies state that the offense can be used in the misdemeanor/gross misdemeanor section for 1 unit.
Unless the prior juvenile felony offense directly matches Minnesota’s policies regarding age, type of offense, and adjudication of delinquency as stated in § 2.B.4, the factfinder will have to make a determination as to whether or not the prior offense will be used in criminal history.
Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines § 2.B.5.
A Custody Status Point is assigned when the offender is on supervised or unsupervised custody following a guilty plea (including Minn. Stat. § 152.18), guilty verdict, or conviction when the current offense is committed for an adult-level offense listed below.
Note: If the current offense is a sex offense and the offender was under supervision for a sex offense, two custody status points may apply.
Note: For offenses committed before August 1, 2010, misdemeanors were not eligible for a custody status point. Beginning August 1, 2010, only misdemeanors defined as targeted misdemeanors under Minn. Stat. § 299C.10 subd. 1(e) are eligible for a custody status point.
CUSTODY STATUS TYPE
WHEN TO USE
|Probation||Supervision for a non-executed sentence after receiving a stay of imposition or stay of execution.|
|Within Original Probation Period||Discharged from probation; however, committed the offense within the initial period of probation pronounced by the court. Do NOT assign a point if probation is revoked and the offender serves an executed sentence.|
|Confined||Confinement in a jail or workhouse following a guilty plea (including Minn. Stat. § 152.18, subd. 1), guilty verdict, or conviction; or confined in prison.|
|Release Pending Sentencing||Released awaiting sentencing following a guilty plea, a guilty verdict, or conviction.|
|Parole/Supervised Release||Supervision after release from an executed prison sentence.|
|Conditional Release||Supervision period that follows supervised release. Conditional release applies to specific offenses including certain sex offenses and felony DWI. See the Conditional Release Reference Table for a complete list.|
|EJJ Status||Supervision for a stayed adult sentence with a juvenile disposition. Prior EJJ
offenses are included in the felony section of criminal history; do NOT assign a point if the prior offense is included in the juvenile prior history section.
|Escape||The offense occurs after escaping from an executed sentence. For example, an offender escapes from a MN Correctional facility and steals a car.|
An offender may be assigned a custody status point of Confined, even if that confinement is in a jail or workhouse before sentencing so long as it is after a guilty plea, guilty verdict, or conviction.
Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines § 2.B.2.
"Hernandize" is the unofficial term for the process described in Minn. Sentencing Guidelines § 2.B.1.e of counting criminal history when multiple offenses are sentenced on the same day before the same court. For example, an offender is sentenced on the same day before the same court for two counts of theft. Count 1, having received a sentence before count 2, will now be incorporated or "Hernandized" into the criminal history score used when sentencing count 2. Because of the application of the Hernandize method, an offense does not have to be a true prior in order to be included in criminal history.
There are two circumstances in which the conviciton and sentence for the earlier offense will not be used to increase the criminal history score of the later offense:
Enhanced Felony Offenses are offenses that are felonies solely because the offender has previous convictions for similar misdemeanor or gross misdemeanor offenses.
How to Calculate in Criminal History:
For most enhanced offenses, such as Domestic Assault, the prior misdemeanor and/or gross misdemeanor offenses used to enhance are only removed from the felony they are enhancing. This means that for future offenses they can be used in criminal history along with the felony that was enhanced. The exception to this rule is felony DWI. Remember to always remove the three misdemeanor or gross misdemeanor DWI offenses used to enhance the DWI to a felony. Once those three are used to enhance, they are removed permanently from criminal history on any future felony DWI; they are eligible to be used on any other felony.Electronic Worksheet System Hint: Note Offenses Used to Enhance
It is helpful to list the prior misdemeanor or gross misdemeanor offenses used to enhance the current felony in the “Comments” section of the worksheet. This way the worksheet reviewer will know which offenses were used to enhance the felony, and agents looking at the worksheet in the future will know which offenses may or may not be eligible for use in criminal history.
Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines § 2.B.6.