concurrence">RUSSELL A. ANDERSON

(concurring specially).

I concur but write separately to emphasize that under the Sentencing Guidelines a district court lacks the authority to perform the kind of subjective analysis of an offender’s criminal history score the district court performed here. As the commentary to the guidelines indicates, in giving weight to foreign convictions, the sentencing court must exercise its discretion to some extent. Minnesota Sentencing Guidelines II.B.504 comment.

Here the sentencing court did not consider the nature and definition of the foreign offense or the sentence received to determine whether two points for the Texas offense was proper. In addition, neither the state nor Reece disputed the assignment of two criminal history points for the Texas offense. See Minn.R.Crim.P. 27.03, subd. 1(D) (allowing, among other things, a party to challenge the sentencing worksheet and request a hearing for purposes of establishing the correct criminal history score). The court appears to have acknowledged that the criminal history score was properly computed under the guidelines, and instead made an after-the-fact qualitative assessment of the prior offenses, resulting in an effective downward departure where there were admittedly no grounds for such a departure.

Where a court attempted to use the underlying circumstances of prior offenses included in the criminal history score to warrant an upward departure, we stated:

Generally the sentencing court cannot rely on a defendant’s criminal history as a ground for departure. The Sentencing Guidelines take one’s history into account in determining whether or not one has a criminal history score and, if so, what the score should be. Here defendant’s criminal history was already taken into account in determining his criminal history score and there is no justification for concluding that a qualitative analysis of the history justifies using it as a ground for departure.

State v. Magnan, 328 N.W.2d 147, 149-50 (Minn.1983); see also State v. Higginbotham, 348 N.W.2d 327 (Minn.1984). The same rule applies for the, in effect, downward departure exercised here.

Just as a court may not substitute its judgment for the judgment of the guidelines commission as to the designated severity level of a crime, so also a court may not substitute its judgment as to the weight to be given a properly computed criminal history score.

Citation profile

Relationships

How this case has been treated — in progress