A Felony Conviction Deemed To Be A Misdemeanor Under Minn.Stat. 609.13 Doesn’t Count Under Career Offender Statute

State v. Franklin, Minn.Ct.App., 5/27/2014.  This is a sentencing appeal under the “career offender” statute, Minn.Stat. 609.1095.  Mr. Franklin said that one of his prior felony convictions is deemed to be a misdemeanor and thus cannot count toward the “five or more prior felony convictions” required to label him a “career offender.”  He also said that his current offense was not committed as part of a pattern of criminal conduct.

Mr. Franklin pled guilty to a felony drug offense.  He then agreed that he had the requisite five prior felony convictions and that his current offense constituted a “pattern of criminal conduct.”  He then apparently talked to a lawyer – he represented himself in the trial court – and then challenged both of those concessions on appeal.

The state said, wait a minute, didn’t you just admit to both of those things?  Well, yes, but a defendant cannot waive a sentencing issue that resulted in an illegal sentence.  State v. Maurstad, 733 N.W.2d 141 (Minn. 2007), which says that a sentence based on an incorrect criminal history score is an illegal sentence review of which a defendant cannot waive.  A career offender sentence that is based on an incorrect determination that a defendant had the requisite number of prior felony convictions is also an illegal sentence.  Can’t waive it.

Minn.Stat. 609.13, subd 1(2) says that a felony conviction is deemed to be a misdemeanor if imposition of a prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence.  While it’s true that the court has recognized instances in which 609.13 doesn’t apply the court says that this isn’t one of them.  Consider, for instance, the civil rights restoration provision which imposes a prohibition from possessing, etc. firearms for ten years for a person who has been convicted of a “crime of violence.”  609.13 doesn’t apply because the legislature intended to impose this firearms restriction based on the kind of offense, not on the subsequent treatment of the offender.  State v. Moon, 463 N.W.2d 517 (Minn. 1990). 

Just exactly why “crime of violence” is any different from “pattern of criminal conduct” isn’t really addressed.  It seems that the legislature did, indeed, focus on the kind of offense – those that establish a “pattern” – which would make 609.13 inapplicable.  Moving along, the court glosses over this to pronounce that the legislature said an offender needed five prior felony convictions regardless of the behavior that produced any of them.  It is the classification of the conviction that matters.

Because one of Mr. Franklin’s prior convictions is deemed to be a misdemeanor under 609.13 he does not have the required five prior felony convictions.  The court sends the case back to the trial court for resentencing.  Having done so the court does not take up Mr. Franklin’s other claim about “pattern.”