"The phrase 'before the current sentencing' means that in order for prior convictions to be used in computing [a] criminal history score, the felony sentence for the prior offense must have been stayed or imposed before the sentencing for the current offense." Minn. Sent. Guidelines cmt. II.B.101. Thus,
an offender's conviction of an offense committed subsequent to the current offense, but sentenced prior to the current sentencing, is properly included in the defendant's criminal-history score.
State v. Best, 370 N.W.2d 691, 696 (Minn. App. 1985).
In support of his assertion that his criminal-history score was miscalculated, Mondry relies on an order opinion of the Minnesota Supreme Court that, in the interests of justice, remanded with instructions to re-sentence without including a prior felony sentence in the criminal-history score. See Scott v. State, No. C1-99-2093 (Minn. Oct. 26, 2000) (order). The parties in Scott negotiated a plea agreement based on the parties' assumption that the offender would be sentenced in Ramsey County prior to being sentenced for an unrelated offense in Washington County. Id. When the sentencings did not occur in the order contemplated, the defendant received a longer sentence in the case from Ramsey County than anticipated based on his criminal-history score, which included the Washington County offense. Id. The Scott court's ruling honored the terms of the plea agreement, which, due to circumstances beyond the parties' control, were negated by operation of the sentencing guidelines. Id. Unlike the facts presented in Scott, Mondry's sentence did not contravene the negotiated plea agreement. Rather, Mondry's sentence was determined by proper application of the sentencing guidelines.
Mondry argues that remanding his sentence is consistent with the plain language of the sentencing guidelines, which provides that "[m]ultiple offenses are sentenced in the order in which they occurred." Minn. Sent. Guidelines II.B.1; see also Minn. Sent. Guidelines cmt. II.A.02 (providing that "the date of [the] offense determines the order of sentencing with multiple convictions"). Examination of the commentary to the sentencing guidelines, however, leads to a different conclusion.
The order in which offenses occur becomes relevant under the sentencing guidelines when the offenses are being sentenced on the same day before the same judge. Minn. Sent. Guidelines cmt. II.B.101. "When multiple current offenses are sentenced on the same day before the same judge, sentencing shall occur in the order in which the offenses occurred. The dates of the offenses shall be determined according to the procedures in II.A.02." Id. (emphasis added); see also State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981) (holding that, when sentencing a defendant on the same day for three convictions from separate courses of conduct, the district court properly considered the first two convictions in determining the criminal-history score for the third conviction).
But the sentences for the North Dakota offenses were not imposed by the same judge on the same day as the Minnesota offenses.
State v. Mondry, 682 N.W.2d 183, 184-85 (Minn. Ct. App. 2004)