State of Minnesota v. Michael David Franklin , 2015 Minn. LEXIS 111 ( 2015 )

STATE OF MINNESOTA
IN SUPREME COURT
A13-1129
Court of Appeals Wright, J.
State of Minnesota,
Appellant,
vs. Filed: March 11, 2015
Office of Appellate Courts
Michael David Franklin,
Respondent.
________________________
Lori Swanson, Attorney General, Saint Paul, Minnesota; and
Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota, for appellant.
Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, Saint Paul, Minnesota, for respondent.
________________________
SYLLABUS
When determining whether an offender “has five or more prior felony
convictions” for the purposes of Minn. Stat. § 609.1095, subd. 4 (2014), any felony
conviction that has been deemed a misdemeanor by operation of Minn. Stat. § 609.13,
subd. 1 (2014), before an offender is sentenced on the current offense may not be
considered.
Affirmed.
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OPINION
WRIGHT, Justice.
We must determine whether a felony conviction that has been deemed a
misdemeanor pursuant to Minn. Stat. § 609.13, subd. 1 (2014), before an offender is
sentenced on the current offense, can be considered when determining whether the
offender “has five or more prior felony convictions” under the career-offender statute,
Minn. Stat. § 609.1095, subd. 4 (2014). Answering the question in the affirmative, the
district court sentenced respondent Michael David Franklin to 66 months in prison. The
court of appeals reversed and remanded for resentencing, concluding that one of
Franklin’s felony convictions did not meet the requirements of the career-offender statute
because it had been deemed a misdemeanor before Franklin was sentenced in 2013. State
v. Franklin, 847 N.W.2d 63, 68 (Minn. App. 2014). We subsequently granted the State’s
petition for review. We now conclude that under the plain language of section 609.1095,
subdivision 4, a felony conviction that has been deemed a misdemeanor by operation of
section 609.13, before an offender is sentenced for the current offense, may not be
considered when determining whether the offender “has five or more prior felony
convictions.” Accordingly, we affirm the decision of the court of appeals and remand to
the district court for resentencing.
I.
Following his sale of a controlled substance to a confidential informant on
September 30, 2012, Franklin was charged with fourth- and fifth-degree controlled
substance violations. Franklin pled guilty to the fourth-degree controlled substance
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offense pursuant to a plea agreement, and the fifth-degree charge was dismissed. The
plea agreement included a 120-month sentence cap, and the State informed Franklin that
it would seek an aggravated upward durational departure from the presumptive
sentencing guidelines range based on the State’s theory that Franklin was a “career
offender.”
Franklin has a lengthy criminal history. Prior to his 2013 sentencing, Franklin had
been convicted of the following five felonies: (1) possession of cocaine in 1990;
(2) possession of a controlled substance in 1992; (3) conspiracy to sell cocaine in 1998;
(4) theft in 2002; and (5) issuing a check without sufficient funds or without an account
in 2006. Of particular significance to this appeal, Franklin’s 1990 conviction for
possession of cocaine was deemed a misdemeanor at the end of Franklin’s probation in
1994 by operation of the misdemeanor-conversion statute, Minn. Stat. § 609.13.
On March 25, 2013, after finding that Franklin was a career offender under section
609.1095, subdivision 4, the district court imposed a sentence of 66 months, a double
upward departure from the 33-month presumptive sentence under the Minnesota
Sentencing Guidelines. Franklin appealed. The court of appeals reversed and remanded
for resentencing, concluding that because Franklin did not have five prior felony
convictions, he could not be sentenced as a career offender. Franklin, 847 N.W.2d at 68.
The State petitioned for further review. We granted the State’s petition to consider
whether a felony conviction that has been deemed a misdemeanor is a “prior felony
conviction[]” under the career-offender statute.
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II.
Whether a felony conviction that has been deemed a misdemeanor before the
defendant is sentenced on the current offense counts as a prior felony conviction under
section 609.1095, subdivision 4, presents a question of statutory interpretation, which we
review de novo. State v. Jones, 848 N.W.2d 528, 535 (Minn. 2014). When interpreting a
statute, our objective is to “effectuate the intent of the legislature, reading the statute as a
whole.” Rohmiller v. Hart, 811 N.W.2d 585, 589 (Minn. 2012) (citing Minn. Stat.
§ 645.16 (2014)). When the Legislature’s intent is clear from the unambiguous statutory
language, we apply the plain meaning of the statute. State v. Rick, 835 N.W.2d 478, 482
(Minn. 2013). If the statutory language is unclear or ambiguous, however, we look
beyond the specific language of the statute to determine the Legislature’s intent.
Rohmiller, 811 N.W.2d at 589; Minn. Stat. § 645.16. Therefore, the first question to
consider is whether the statute’s language is ambiguous. State v. Peck, 773 N.W.2d 768,
772 (Minn. 2009). A statute is ambiguous if its language is subject to more than one
reasonable interpretation. State v. Mauer, 741 N.W.2d 107, 111 (Minn. 2007).
The career-offender statute, section 609.1095, subdivision 4, allows district courts
to impose an upward durational departure from the presumptive sentence if a defendant
has five or more prior felony convictions. Subdivision 4 provides:
Whenever a person is convicted of a felony, and the judge is imposing an
executed sentence based on a Sentencing Guidelines presumptive
imprisonment sentence, the judge may impose an aggravated durational
departure from the presumptive sentence up to the statutory maximum
sentence if the factfinder determines that the offender has five or more prior
felony convictions and that the present offense is a felony that was
committed as part of a pattern of criminal conduct.
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Minn. Stat. § 609.1095, subd. 4 (emphasis added).
Separately, the misdemeanor-conversion statute, section 609.13, subdivision 1(2),
states:
Notwithstanding a conviction is for a felony: . . . (2) the conviction is
deemed to be for a misdemeanor if the imposition of the prison sentence is
stayed, the defendant is placed on probation, and the defendant is thereafter
discharged without a prison sentence.
Minn. Stat. § 609.13, subd. 1(2) (emphasis added).
According to section 609.1095, subdivision 1(c), a “prior conviction” means “a
conviction that occurred before the offender committed the next felony resulting in a
conviction and before the offense for which the offender is being sentenced under this
section.” Minn. Stat. § 609.1095, subd. 1(c). Both parties agree that the statutory
definition for “prior conviction” provided in section 609.1095, subdivision 1(c), applies
to the “prior felony conviction” language of section 609.1095, subdivision 4. As such,
the only question before us is what point in time is relevant when determining the status
of a prior felony conviction—when the defendant is being sentenced for the present
offense or when the defendant was convicted of the prior felony.
The parties do not contest that when Franklin was sentenced for his current
offense in 2013, his 1990 conviction had been deemed a misdemeanor under section
609.13, subdivision 1. Rather, the point of contention between the parties is whether a
felony conviction that has been deemed a misdemeanor pursuant to section 609.13 is
treated as a felony conviction or as a misdemeanor conviction when applying the career-
offender statute, section 609.1095, subdivision 4. Franklin argues that the present-tense
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verb “has” in section 609.1095, subdivision 4, requires the district court to consider how
many felony convictions a defendant possesses when the sentencing occurs. According
to this interpretation, Franklin contends, he had only four prior felony convictions when
he was sentenced in 2013. The State counters that any felony conviction that occurred
before Franklin’s 2013 sentencing qualifies as a “prior felony conviction[]” under the
career-offender statute. The State’s argument does not take into account the status of the
felony conviction at the time of the sentencing.
To resolve the parties’ dispute we examine the meaning of the verb have. The
verb have can be used in two ways: as an auxiliary verb and as a principal verb. The
Chicago Manual of Style 5.101 (16th ed. 2010); see Rodney Huddleston & Geoffrey K.
Pullum, The Cambridge Grammar of the English Language 111 (2002). Auxiliary verbs
are used with principal verbs to form verb phrases that indicate mood, tense, or voice.
The Chicago Manual of Style 5.101. For example, the verb phrase “have written” uses
have as an auxiliary verb, followed by the past participle of the verb write. By contrast,
principal verbs express acts or states. Id. As a principal verb, one meaning of have is
“[t]o be in possession of.” The American Heritage Dictionary 806 (5th ed. 2011).
In section 609.1095, subdivision 4, the verb have is used as a principal verb in the
present third-person singular tense, “has.” See The Chicago Manual of Style 5.145. As
such, “has” in section 609.1095, subdivision 4, is equivalent to the word “possesses.”
See The American Heritage Dictionary 806. Section 609.1095, subdivision 4, therefore,
directs the fact-finder to determine whether the offender “has,” or possesses, five or more
prior felony convictions. The statute’s use of the present tense means that the relevant
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time of possession of prior felony convictions is the time at which the sentence on the
current offense is imposed. Here, that point in time is March 2013. Because in the
context of section 609.1095, subdivision 4, there is no other reasonable interpretation of
the phrase “has five or more prior felony convictions,” the statutory language in question
is plain and unambiguous.
Applying the plain language of section 609.1095 to the facts here, we conclude
that the district court erred when it determined that Franklin had five prior felony
convictions that satisfy the definition in section 609.1095, subdivision 1(c). The plain
language of section 609.1095, subdivision 4, requires the sentencing court to consider
what prior felony convictions a defendant “has” when the defendant is sentenced. When
Franklin was sentenced in 2013, his first felony conviction had been deemed a
misdemeanor under Minn. Stat. § 609.13, subd. 1. With regard to that conviction,
Franklin had a misdemeanor conviction—not a felony conviction—under the career-
offender statute. Because in 2013 Franklin did not have five prior felony convictions, the
district court erred by sentencing Franklin under the career-offender statute.1 When
1
The State’s reliance on State v. Anderson, 733 N.W.2d 128 (Minn. 2007), In re
Peace Officer License of Woollett, 540 N.W.2d 829 (Minn. 1995), and State v. Moon, 463
N.W.2d 517 (Minn. 1990), is unavailing because the statutory language at issue in each
of those cases is different from the statutory language at issue here. In Moon, for
example, we concluded that section 609.13 did not affect the operation of the firearm-
possession statute, Minn. Stat. § 609.165, subd. 1a (1990). 463 N.W.2d at 521. The
language of the firearm-possession statute differs in an important way from that of
section 609.1095, subdivision 4, the career-offender statute. Section 609.1095,
subdivision 4, uses the phrase “has five or more prior felony convictions.” By contrast,
section 609.165, subdivision 1a, uses the phrase “has been convicted of a crime of
violence.” If the career-offender statute used the language “has been convicted of,”
(Footnote continued on next page.)
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Franklin was sentenced for the instant offense, he was not a career offender under Minn.
Stat. § 609.1095, subd. 4. We, therefore, affirm the decision of the court of appeals and
remand to the district court for resentencing.
Affirmed.
(Footnote continued from previous page.)
Franklin would qualify as a career offender. It is undisputed that Franklin “has been
convicted of” five prior felony convictions. But at the time of sentencing, he no longer
“ha[d]” five prior felony convictions according to the plain language of section 609.1095,
subdivisions 1(c) and 4.
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