State v. Maurstad

*152GILDEA, Justice

(dissenting).

I respectfully dissent. The issue in this case relates to the calculation of Maur-stad’s criminal history score. The district court included a custody status point based on Maurstad’s 1996 conviction for felony aiding second-degree burglary. For the 1996 crime, Maurstad received a stay of imposition of sentence and was “placed on supervised probation * * ⅜ for a period not to exceed the statutory maximum,” which was 10 years. In November 1999, pursuant to a recommendation by the agency supervising Maurstad’s probation, the district court discharged Maurstad from probation as well as from his stayed imposition of sentence. As a result, his felony conviction was deemed a misdemeanor by operation of Minn.Stat. § 609.13, subd. 1(2) (2006).

The instant case arises from criminal offenses Maurstad committed in 2003. Because Maurstad was discharged before these crimes were committed, he argues and the majority holds that the district court erred by including the custody status point. In my view, the Minnesota Sentencing Guidelines require that Maurstad’s criminal history score include the custody status point. Accordingly, I would reverse the court of appeals.

I.

We must first address whether Maur-stad is entitled to review of the district court’s decision to include the custody status point in the calculation of his criminal history score, and if so, we must decide the lens through which we will examine the issue. The majority concludes that Maur-stad did not waive review of the custody status point issue and that we should examine this issue under a plenary standard of review. I agree as to the first conclusion and disagree on the second.

As the majority notes, Maurstad pleaded guilty to the 2003 controlled substance crimes, and the district court ordered that a presentence investigation report be completed. The PSI noted Maurstad’s 1996 conviction and the fact that he was placed on probation for 0-10 years. The PSI did not indicate that Maurstad was discharged in 1999. But Maurstad submitted no objection to the PSI. Maurstad likewise made no objection at his sentencing to the PSI’s failure to indicate that he had been discharged.

The state argues that because Maurstad did not object to the custody status point, as required by Minn. R.Crim. P. 27.03, subd. 1, he waived the right to further review of the custody status point question. I agree with the majority that we should not find a waiver of this sentencing question in this case. Minnesota Rule of Criminal Procedure 27.03, subd. 9, provides that “[t]he court at any time may correct a sentence not authorized by law.” Maurstad’s argument is that his sentence is not authorized by law because the district court erroneously calculated his criminal history score. The language of our criminal rule appears to preclude a finding of waiver in this case. But the conclusion that the defendant did not waive his right to review does not dictate the lens through which the reviewing court should view the issue raised. In my view, the answer to this question is also found in our criminal rules.

Under Minn. R.Crim. P. 27.03, subd. 1(D), Maurstad was required to bring a motion for a sentencing hearing if he desired to challenge “any portion of the presentence investigation report.” The motion must “specifically set forth the reasons for the motion, including a designation of any portion of the presentence investigation report or sentencing guidelines worksheet challenged, and the *153grounds for the challenge.” Id. Maurstad brought no such motion. Under Minn. R.Crim. 27.03, subd. 1(F), Maurstad had the additional opportunity to raise any remaining issues during his sentencing. This portion of the rule is also mandatory, requiring that “any remaining factual or legal issues relating to the sentence shall be succinctly stated on the record.” Id. At the sentencing, the district court specifically asked defense counsel whether there was “a need for a hearing on the factual content of the PSI.” Maurstad raised no objection to what he now claims was the erroneous inclusion of the custody status point within his criminal history score. That is the time Maurstad should have raised the issue.9

Because our rules required Maurstad to raise his objection before the district court, and he failed to do so, Maurstad did not preserve the issue about which he now complains. Accordingly, under our rules, the only review to which Maurstad is entitled — before this court and before the postconviction court on post-trial motions — is review for plain error. Our rule provides: “Plain errors or defects affecting substantial rights may be considered by the court upon motions for new trial, post-trial motions, and on appeal although they were not brought to the attention of the trial court.” Minn. R.Crim. P. 31.02. The clear language of Rule 31.02 compels the conclusion that our review of Maurstad’s sentencing issue, which was not “brought to the attention of the trial court,” must be for plain error. Id.

As we have said many times, application of the plain error doctrine encourages defendants to object while in the district court so that any errors can be corrected before their full impact is realized. See, e.g., State v. Ramey, 721 N.W.2d 294, 298-99 (Minn.2006). We have applied the plain error doctrine to a full range of unobject-ed-to errors, from evidentiary issues to constitutional challenges. See, e.g., State v. Martin, 695 N.W.2d 578, 582-83 (Minn.2005) (applying plain error analysis to Confrontation Clause issue); State v. Jones, 678 N.W.2d 1, 17 (Minn.2004) (applying plain error analysis to evidentiary issue). We should likewise apply the doctrine in this case.

The majority attempts to sidestep the important standard-of-review question by discussing “the legislature’s stated public policy of achieving uniformity in sentencing.” Because an accurate criminal history score is essential to achieving sentencing uniformity, the majority concludes Maurstad did not waive his right to challenge his sentence based on a purportedly inaccurate criminal history score. And because Maurstad did not waive his right to challenge his sentence, the majority holds that he also did not forfeit his right to *154challenge his sentence. But the majority does not articulate how it can, consistent with our criminal rules, apply a plenary standard of review here. The majority instead chooses, “as a matter of policy,” not to apply Minn. R.Crim. P. 31.02. The majority, in essence, has written an exception into Rule 31.02, that plain error will not apply when the error alleged is one related to sentencing. In my view, we should not rewrite our court rules in specific cases, as the majority does here. We have a process for revision of court rules, and that process should be followed before rules are changed. I believe that our criminal rules, as currently written, require us to analyze Maurstad’s claim through the lens of plain error.

II.

I turn next to examine whether the district court committed plain error when it included the custody status point in Maur-stad’s criminal history score. Minnesota Sentencing Guidelines II.B.2.C. requires the assignment of a custody status point if Maurstad “committed the current offense within the period of the initial length of stay pronounced by the sentencing judge for a prior felony.”10 Here, the district court stayed imposition of Maurstad’s sentence “for a period not to exceed the statutory maximum.” The statutory maximum for Maurstad’s crime — aiding and abetting the commission of second-degree burglary — was (and is) ten years. See Minn.Stat. § 609.582, subd. 2 (2006). Thus, “the period of the initial length of stay” was not to go beyond February 2006, ten years from the date the sentence was stayed. Maur-stad committed the crimes at issue here before February 2006. Thus, the district court did not err, much less commit plain error, in giving Maurstad the custody status point.

In reaching a contrary conclusion, the majority finds that section II.B.2.C. is ambiguous as applied to this case. Specifically, the majority concludes that the district court’s 1996 sentencing order was ambiguous when it pronounced the length of its stay of sentence imposition. In my view, the distinction the majority creates in the sentencing order so that it may find an ambiguity — between “up to 10 years,” and “for 10 years” — is one of form over substance. Moreover, the majority does not explain how an ambiguity in a district court sentencing order can render the plain language of Minn. Sent. Guidelines II.B.2.C ambiguous. In my view, there is nothing ambiguous about the phrase “period of the initial length of stay.”

In any event, the majority utilizes the ambiguity it has created in the sentencing court’s order as a basis to reach for lenity. Because there is an ambiguity, the majority holds that the principle of lenity dictates that we should interpret the district court’s 1996 sentencing order in the light most favorable to the defendant. This lenient interpretation leads the majority to conclude that Maurstad should not have been given a custody status point. Lenity does not lead me to conclude that it was plain error to give Maurstad the custody status point.

We have said that we will not invoke principles of lenity when the statute at issue is not ambiguous. State v. Loge, 608 N.W.2d 152, 156 (Minn.2000) (“[Wjhere, as here, we have interpreted the statute and find no ambiguity, ‘the so-called rule of lenity * * *’ has no application.”) (internal *155quotations omitted). Because I find no ambiguity in Minnesota Sentencing Guidelines II.B.2.C, I would not resort to lenity in this case.

But even if I were to find an ambiguity, lenity would not lead me to conclude that the district court erred in this case. As the United States Supreme Court has said: “The rule of lenity applies only if, after seizing everything from which aid can be derived, ⅜ * ⅜ we can make no more than a guess as to what Congress intended.” Muscarello v. United States, 524 U.S. 125, 138, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (internal quotations omitted). We have also recognized that we should not apply lenity in knee-jerk fashion but should look also to “commission policy and official commission interpretation * * * in resolving ambiguities” in the guidelines. State v. McGee, 347 N.W.2d 802, 805-06 (Minn.1984). The majority ignores a provision in the legislation establishing the guidelines and tries to bypass relevant commentary to the guidelines in reaching toward lenity.11

The legislature directed that the “primary consideration” of the Guidelines Commission “shall be public safety.” MinmStat. § 244.09, subd. 5 (2006) (emphasis added). Just as important is what the commission said about the exact circumstance this case presents. With regard to the application of section II.B.2.C, the commission said:

the potential for a custody status point should remain for the entire period of the initial length of stay pronounced by the sentencing judge. An offender who is discharged early but subsequently is convicted of a new felony within the period of the initial length of stay should still receive the consequence of a custody status point.

Minn. Sent. Guidelines cmt. II.B.201.12

As we said in McGee, we must consider these expressions of intent, not exclusively notions of lenity, when we are construing an ambiguous provision in the guidelines. 347 N.W.2d at 805-06. These expressions confirm for me that it was not plain error to give Maurstad the custody status point.

The result reached by the district court’s inclusion of the custody status point serves the legislature’:'? “primary consideration” of public safety. MinmStat. § 244.09, subd. 5. It is consistent with considerations of public safety for a felon with multiple convictions to be held accountable for his recidivist behavior through the use of a custody status point. See State v. McFee, 721 N.W.2d 607, 618 (Minn.2006) (“Using prior felonious behavior * * * to increase a recidivist’s sentence ⅜ * * promotes] public safety.” (internal quotations omitted)).

Not only does application of the custody status point serve the goal of public safety, but it is also what the commission plainly *156intended here as expressed in comment II.B.201. The majority attempts to dodge the effect of comment II.B.201. Specifically, the majority uses its concept of lenity to construe the sentencing court’s order as a decision to place Maurstad on probation for an “indeterminate” period of time. Because the probationary period was “indeterminate,” the majority concludes that the discharge in November 1999 was not an “early discharge.” Thus, the commentary in section II.B.201 is apparently not relevant to the majority. But when the record is construed in connection with the relevant statute, the commentary cannot be so easily dismissed.

The relevant statute, Minn.Stat. § 609.135, subd. 2(a) (2006), provides that for most felony convictions “the stay shall be for not more than four years or the maximum period for which the sentence of imprisonment might have been imposed, whichever is longer.” By operation of this same statute, Maurstad would have been discharged automatically six months after the expiration of the stay period pronounced by the court in February 1996, “unless the stay ha[d] been revoked or extended * ⅜ * or the defendant ha[d] already been discharged.” Minn.Stat. § 609.135, subd. 2(f). The agency supervising Maurstad asked the court, in October 1999, to discharge Maurstad. This request was necessary because without it Maurstad’s probation would have continued by operation of law. Thus, Maurstad was discharged early from probation.

The majority acknowledges that the question of whether Maurstad is “an offender who has been discharged early from probation and still within the initial length of a probationary term * * * presents a close call.” The answer to this question, however, is the foundation upon which the majority rests its conclusion that the district court erred here. The majority’s concession that the dispositive question presents a “close call,” by definition, means that the district court did not commit plain error. See State v. Strommen, 648 N.W.2d 681, 688 (Minn.2002) (“An error is ‘plain’ if it was ‘clear’ or ‘obvious.’ ”).

I would hold that the district court did not commit plain error and therefore reverse the court of appeals, and uphold the sentence as imposed.

ANDERSON, Barry G., Justice (dissenting).

I join in the dissent of Justice Gildea.

. Apparently, Maurstad’s attorney was unaware of Maurstad’s 1996 conviction and 1999 discharge. Maurstad, however, was certainly aware of these events. He pleaded guilty to the crimes in 1996 and his supervising probation agency specifically moved the court for an order relieving Maurstad of the obligation of supervised probation in October 1999. Maurstad’s case is thus different from the situation we confronted in State v. Osborne where we concluded that application of the plain error doctrine was not appropriate. 715 N.W.2d 436, 445-46 (Minn.2006). In Osborne we found that the defendant was not aware of the issue that was the subject of appellate review. Id. at 443-44. Moreover, in Osborne, the applicable criminal rule specifically required that the defendant affirmatively act to waive the right at issue in that case — the right to a jury trial — either in writing or orally on the record. Id. at 442-43; see also Minn. R.Crim. P. 26.01, subd. 1(2). By contrast, in this case, the rule requires that the defendant take affirmative action to preserve the right. See Minn. R.Crim. P. 27.03, subd. 1. Thus, I find the majority’s reliance on Osborne misplaced.

. This provision, which was not effective until 2001, applies to the crimes Maurstad committed in 2003. See Minn. Sent. Guidelines III.F ("Modifications to the Minnesota Sen-terming Guidelines and associated commentary will be applied to offenders whose date of offense is on or after the specified modification effective date.”).

. With respect to lenity, it seems to me that what the 1996 sentencing court did in this case comports with notions of lenity. Maur-stad received the benefit of a stay of imposition of sentence. The sentencing court, in the exercise of its discretion, then gave Maurstad the longest possible stay period within which to pay the $9,676 restitution he was ordered to pay to his victim. It is plainly more lenient to give a defendant up to 10 years to pay restitution than to shorten the time period during which the defendant must make his victim whole or face greater sanctions.

. While this commentaiy may not be binding on this court, Asfaha v. State, 665 N.W.2d 523, 526 (Minn.2003), it helps determine the intent of the drafters, which is relevant if one were to conclude, as the majority does, that section II.B.2.C. is ambiguous. This commentary confirms that the drafters intended a custody status point to be given in Maurstad’s situation.