How to Determine a Presumptive Sentences in Minnesota

Taking effect for offenses factually occurring after May 1, 1980, an offender who is convicted of a felony in the state of Minnesota faces what is called a “presumptive sentence,” as determined under the Minnesota Sentencing Guidelines. (Please note: for offenses occurring and the date of offense being on or before April 30, 1980, then the Minnesota Sentencing Guidelines should not be used to sentence the offender in that case as they are inapplicable by law.) In order to determine the proper and legally appropriate presumptive sentence for a particular felony offender, one must locate the correct block on the “Sentencing Guidelines Grids.” This is done by evaluating two factors: criminal history and offense severity. Each of these factors is considered to be the most important factors under Minnesota sentencing and releasing laws. Here we look at just the “offense severity” factor as it relates to a person’s ultimate presumptive sentence under Minnesota’s sentencing scheme, called the Minnesota Sentencing Guidelines.

(For more information on determining a person’s “criminal history” (as dictated by the Minnesota Sentencing Guidelines), go to How to Determine a Presumptive Sentence in Minnesota: Criminal History.)

Offense Severity

The severity level for each felony offense is governed by Minnesota Sentencing Guidelines, Section V: Offense Severity Reference Table. In determining the severity level of a particular offense, one must look to and determine the actual offense for which a person is convicted. A person who is convicted of more than one felony receives an “offense severity” level according to the most severe offense for which the person is convicted.

This was done because the Minnesota Sentencing Guidelines Commission knows there are serious legal and ethical problems for punishing a felony offender with criminal sanctions that are based upon mere allegation and do not require any meaningful standard or burden of proof in order to increase a person’s punishment – thus, effectively punishing a person for committing a criminal act that has never been proven in a court of law. To do this would be to allow judges to dole out sentences unequally and with de facto regard for such illegal things as race, gender, sexual orientation, religion, political persuasion, etc. Further, if this was the case, prosecutors and the criminal defense attorney would be less accountable for (and, thereby, less influential in) sentences resulting from plea negotiations. For these reasons, it follows that if the offense of conviction is the standard from which to determine severity, departures from the guidelines should not be permitted for elements of offender behavior not within the statutory definition of the offense of conviction – as, again, these “elements” remain unproven in their most basic sense. Thus, as the Commission put it, “if an offender is convicted of simple robbery, a departure from the guidelines to increase the severity of the sentence should not be permitted because the offender [was at some point alleged to have] possessed a firearm or used another dangerous weapon.”

Further, there are a number of unique circumstances that can result from a conviction of a number of particular offenses. Thus, for example, persons convicted under Minn. Stat. § 609.2241 (Knowing Transfer of Communicable Disease), Minn. Stat. § 609.229, subd. 3 (a) (Crime Committed for Benefit of a Gang), Minn. Stat. § 609.3453 (Criminal Sexual Predatory Conduct), or Minn. Stat. § 609.714 (Offense in Furtherance of Terrorism) the severity level is the same as that for the underlying crime with the highest severity level. The presumptive sentence for some of these offenses, however, is increased from that of the underlying offense as described by the Minnesota Sentencing Guidelines, Section II(G): Convictions for Attempts, Conspiracies, and Other Sentence Modifiers. So it is essential to have a well-qualified criminal defense attorney examine any particular charge or circumstance in order to obtain accurate information with which to rely upon when considering a particular legal opinion.

Additionally, there are very specific rules used for determining “offense severity” when a person is convicted of different or multiple offenses if either the theft and damage to property aggregation procedures are used for sentencing purposes or multiple offenses are an element of the offense for which the person is convicted. Here are the rules:

  • If offenses have been aggregated under Minn. Stat. § 609.52, subd. 3(5), or Minn. Stat. § 609.595, the offense date for which a person is convicted is the earliest date of offense.
  • If the offense for which a person is convicted includes multiple other offenses as an element of the criminal act (as, e.g., in subd. 1(h)(iii) of first degree criminal sexual conduct), then the date of the offense for which a person is convicted must be determined by the fact-finder. See State v. DeRosier, 719 N.W.2d 900 (Minn. 2006).

Please note: In the Comment to these Guidelines, the Commission believed that the date of the offense is important for a number of different reasons. For example, “…because the offender’s age at the time of the offense will determine whether or not the juvenile record is considered, the date of the offense might determine whether a custody status point should be given, and the date of offense determines the order of sentencing with multiple convictions.” Thus, one will further see that for felony offenders who are convicted of just one felony offense there are usually no problems at all in trying to determine the actual date that the particular criminal (felony) offense was committed by the offender.

Moreover, (1) for an individual who is sentenced according to Minn. Stat. § 609.52, subd. 3a (for which a violation involves a monetary value over $1,000, or a monetary value between $500 and $1,000), and (2) the person has been previously convicted within the prior 60 months (or 5 years) for another criminal offense under this section, and (3) in the act of committing the offense creates a reasonably foreseeable risk of bodily harm to another, then the resulting severity level ranking is elevated by one severity level from that listed on the Offense Severity Reference Table.

This can obviously get confusing for many people. Even attorneys who are inexperienced in criminal law or lawyers who have not dealt with the Minnesota Sentencing Guidelines can get the offense severity level wrong when dealing with some of these unique or complex situations. Thus, the need for an experienced criminal defense attorney becomes ever more important for people convicted of committing one or more felonies in the state of Minnesota.

Now, when looking at felony offenses generally (other than specified sex offenses), one can see how they are laid out into eleven levels of severity: the lowest severity level being “Severity Level I,” and the highest severity level being “Severity Level XI.”

Specified sex offenses are listed on a separate grid into 8 different severity levels. These specified sex offenses are labeled “A” through “H.” Murder in the First Degree and those sex offenses listed under Minn. Stat. § 609.3455, subd. 2 are purposefully excluded from the Minnesota Sentencing Guidelines because, according to the Minnesota law, these offenses included mandatory life sentences for any offender convicted of such an offense.

The severity level for each felony offense is governed by Section V of the Minnesota Sentencing Guidelines (see the Offense Severity Reference Table). Each offense as it is listed within each severity level is deemed to be categorically equal to the severity levels of all other offenses within that same severity level. (Notably, this is a policy decision made by the drafters of the guidelines and may not always reflect the sentiments of the public at large within the state.)

There are also two criminal theft offenses involving a motor vehicle that are ranked individually on the Offense Severity Reference Table. For Theft of a Motor Vehicle, ranked at severity level IV, the offender must be convicted under the general theft statute, Minn. Stat. § 609.52, subd. 2 (1), and the offense must involve theft of a motor vehicle in order for severity level IV to be the appropriate severity level ranking. The Commission intended that any conviction involving the permanent theft of a motor vehicle be ranked at severity level IV, regardless of the value of the motor vehicle. Also, according to the official Comment to the Guideline, “[i]f an offender is convicted of Motor Vehicle Use Without Consent under Minn. Stat. § 609.52, subd. 2 (17), the appropriate severity level is III, regardless of whether the sentencing provision that is cited is Minn. Stat. § 609.52, subd. 3 (3) (d) (v).”

In some cases, there are unranked or undesignated offenses, and the reader will notice that this is because some felonious criminal offenses in Minnesota are listed as unranked offenses in the Offense Severity Reference Table. When unranked offenses are being sentenced, the sentencing judges must exercise discretion by assigning an appropriate severity level for that offense and specify on the record the reasons a particular level was assigned. If an offense is undesignated because it is inadvertently omitted from the Offense Severity Reference Table, the offense shall be considered unranked and the above procedures must also be followed by the sentencing judge.

As the Minnesota Sentencing Guidelines Commission has noted, “[o]ffenses are generally left unranked because prosecutions for these offenses are rarely initiated, because the offense covers a wide range of underlying conduct, or because the offense is new and the severity of a typical offense cannot yet be determined.” Furthermore, judges who are sentencing an offender to an unranked offense may exercise discretion in determining and assigning an appropriate severity level by considering the following factors: (1) the gravity of the specific conduct underlying the unranked offense; (2) the severity level assigned to any ranked offense whose elements are similar to those of the unranked offense; (3) the conduct of and severity level assigned to other offenders for the same unranked offense; and (4) the severity level assigned to other offenders engaged in similar conduct. This is not an exhaustive list, and judges are generally free to consider all of these factors, some of these factors, or none of the factors – as well as any other factors the judge believes are appropriate and not otherwise prohibited by law.

Interestingly enough, one specific offense, incest, was left unranked because, since 1975, the great majority of incest cases are prosecuted under the criminal sexual conduct statutes. If an offender is convicted of incest and the offense would have been a violation of one of the criminal sexual conduct statutes, then the Commission has stated that “the severity level of the applicable criminal sexual conduct statute should be used.” Thus, for example, if a father is convicted of incest for the sexual penetration of his ten year old daughter, the appropriate severity level would be the same as criminal sexual conduct in the first degree. On the other hand, when incest consists of behavior not included in the criminal sexual conduct statutes (for example, consenting sexual penetration involving individuals over 18 years of age), the Commission has stated that “sentencing judges should exercise their discretion to assign an appropriate severity level” as is consistent with the Guidelines.

Generally, however, if a significant number of future felony offense convictions are gained under one or more of the unranked offenses, the Commission will take measures to reexamine the ranking (or lack of ranking) of such offenses, then assign an appropriate severity level for a typical offense.