Minnesota Sentencing Guidelines Commission

Minnesota Sentencing Guidelines Commission 309 Administration Building, 50 Sherburne Avenue, Saint Paul, Minnesota 55155 Voice: (651) 296-0144 Fax: (651) 297-5757 TTY: 1(800) 627-3529 Ask for (651) 296-0144 Website: http://mn.gov/sentencing-guidelines/ Email: sentencing.guidelines@state.mn.us COMMISSION MEETING WHEN: February 19, 2015 2:00 p.m. to 4:00 p.m. WHERE: Capitol Complex Minnesota Judicial Center, Room G-31 25 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, MN 55155 AGENDA 1. Call to Order 2. Approval of Agenda (Action Item) 3. Approval of Draft Meeting Minutes (Action Items) a. November 20, 2014; and b. December 18, 2014 4. New Employee Introduction Mike Jones 5. Presentation of Employee Achievement Awards 6. Reasons for Departure in the Guidelines (Possible Action Item) 7. Stays of Adjudication and Dispositional Departure (Possible Action Item) 8. Minnesota Sex Offender Program Bill Senate File 415, Art. 3 (Possible Action Item) 9. Executive Director s Report (Discussion Items) MSGC An Equal Opportunity Employer

MN Sentencing Guidelines Commission Meeting Agenda February 19, 2015 Page 2 10. Public Input Members of the public may speak for up to three minutes each as governed by the Chair. 11. Outgoing Commission-Member Recognition 12. Adjournment If you require special accommodations to attend this meeting, please contact the Minnesota Sentencing Guidelines Commission as soon as possible.

Minnesota Sentencing Guidelines Commission Approved Meeting Minutes February 19, 2015 The Minnesota Sentencing Guidelines Commission (MSGC) meeting was held on February 19, 2015 at the Minnesota Judicial Center; 25 Rev. Dr. Martin Luther King Jr. Blvd.; St. Paul, MN 55155; Room G-31. Commission members present were Chair Jeffrey Edblad, Jason Anderson, Sergeant Paul Ford, Cathryn Middlebrook, Commissioner of Corrections Tom Roy, Judge Heidi Schellhas, and Yamy Vang. MSGC staff members present were Executive Director Nate Reitz, and staff members Mike Jones, Kathleen Madland, Linda McBrayer, Anne Wall, and Jill Payne. Assistant Attorney General Jim Early was present. A member of the public, Bill Lemons from the Minnesota County Attorneys Association was also present. 1. Call to Order The Chair called the meeting to order at 2:00 p.m. 2. Approval of Agenda Motion made by Sgt. Ford and seconded by Ms. Vang to approve the agenda. 3. Approval of Meeting Minutes a. November 20, 2014 Motion made by Sgt. Ford and seconded by Judge Schellhas to approve the November 20, 2014, meeting minutes. b. December 18, 2014 Motion made by Mr. Anderson and seconded by Sgt. Ford to approve the December 18, 2014, meeting minutes.

4. New Employee Introduction Mike Jones The Chair called on Executive Director Reitz who introduced the newest member of the staff: Mike Jones is an Office and Administrative Specialist who began work with the agency in mid- January 2015. 5. Presentation of Employee Achievement Awards The Chair called on Executive Director Reitz who explained that the agency awarded two achievement awards based on employee achievement in the third quarter of fiscal year 2015. Executive Director Reitz presented Jill Payne and Linda McBrayer with a team achievement award for exemplary and outstanding project accomplishment for their work on the creation and rollout of the new Electronic Worksheet System. Ms. Payne and Ms. McBrayer were present to accept their award. Executive Director Reitz also presented an individual award to Kathleen Madland for exemplary and outstanding innovation for undertaking the task of redesigning and maintaining the Minnesota Sentencing Guidelines Commission website and other innovative ways of making information accessible to the public. Ms. Madland was present to accept her award. 6. Reasons for Departure in the Guidelines The Chair called on the Executive Director to explain the issue before the Commission. Executive Director Reitz directed the Commission to the relevant materials: Departure Reasons Listed in the Guidelines. He explained that the list of departure factors in the Guidelines is shorter and different than the factors most frequently articulated by sentencing courts. The Commission discussed whether it wished to amend its nonexclusive list of factors that may be used for departure and whether it objected to suggested staff changes to the departure checklist. Motion to amend the departure report checklist to address relevant caselaw and statutory recodifications made by Judge Schellhas and seconded by Commissioner of Corrections Roy. 7. Stays of Adjudication and Dispositional Departures The Chair called on the Executive Director to explain the issue before the Commission. Executive Director Reitz directed the Commission to the relevant materials: Stays of Approved MSGC Meeting Minutes 2 February 20, 2015

Adjudication and Aggravated Dispositional Departures. He explained that some practitioners are unaware that it is an aggravated dispositional departure to execute, immediately upon revocation of a stay of adjudication, an otherwise presumptively stayed sentence. It is a departure regardless of the number of previous attempts by the court to restructure the stay of adjudication before revocation. Guidelines staff contacted 10 judges in its last quarterly departure request cycle who were unaware that they had departed. Staff presented the Commission with possible Guidelines modifications to Section 2. Motion to approve the following modification language for public hearing consideration made by Commission of Corrections Roy and seconded by Sgt. Ford. * * * C. Presumptive Sentence 1. Finding the Presumptive Sentence. The presumptive sentence for a felony conviction is found in the appropriate cell on the applicable Grid located at the intersection of the criminal history score (horizontal axis) and the severity level (vertical axis). The conviction offense determines the severity level. * * * 2.C.10. Because a stay of adjudication is not a felony conviction, the Guidelines do not apply unless and until the stay is vacated and conviction is entered. * * * D. Departures from the Guidelines 1. Departures in General. The sentences ranges provided in the Grids are presumed to be appropriate for the crimes to which they apply. The court must pronounce a sentence of the applicable disposition and within the applicable range unless there exist identifiable, substantial, and compelling circumstances to support a departuresentence outside the appropriate range on the applicable Grid. * * * e. Revoked Stay of Adjudication. When a felony stay of adjudication is vacated and conviction is entered, the Guidelines must be applied. To the extent that the sentence pronounced immediately following a revocation of a stay of adjudication is contrary to the Guidelines presumptive sentence, that sentence is a departure. * * * Approved MSGC Meeting Minutes 3 February 20, 2015

2.D.106. The Guidelines do not apply to a stay of adjudication because it is not a conviction (see Section 1.A and Comment 2.C.10). If the initial sentence following felony conviction is commitment to the Commissioner of Corrections, and the Guidelines disposition is a presumptive stayed disposition, it is contrary to the Guidelines presumption. Accordingly, the sentence is an aggravated dispositional departure from the Guidelines, and revocation of a stay of adjudication will be noted as the reason for departure, unless the court offers another explanation. * * * A discussion ensued. 6 in favor; 1 opposed. 8. Minnesota Sex Offender Program Bill Senate File 514, Art. 3 The Chair called on the Executive Director to explain the issue before the Commission. Executive Director Reitz directed the Commission to the relevant materials: Minnesota Sex Offender Program; Indeterminate Sentencing for Certain Sex Offenders (Senate File 415, Art. 3). He explained that Senator Sheran requested the Commission review the indeterminate sentencing part of the bill to make it work without hurting the sentencing guidelines structure. Motion to respond to Senator Sheran s request with proposed language made by Judge Schellhas and seconded by Ms. Vang. In the course of the ensuing discussion, friendly amendments were made to the motion, resulting in the final motion containing the following language: On February 19, 2015, at your request, the Minnesota Sentencing Guidelines Commission reviewed the sentencing policy changes proposed within Article 3 of Senate File No. 415, 89th Minnesota Legislature, as introduced. The Commission continues to be concerned philosophically about the conflict between the Minnesota Sentencing Guidelines principles of uniformity, proportionality, and predictability on one hand, and the indeterminate sentencing aspects of Minn. Stat. 609.3455 on the other. The Commission is further concerned about the implications of Article 3 expanding that statute s indeterminate sentencing aspects. Notwithstanding this concern, the Commission acknowledges that Article 3 is drafted in a manner that incorporates Guidelines principles by including a fixed, Guidelines-based minimum term of imprisonment for repeat sex offenders subject to mandatory indeterminate sentences, and by permitting departure from those mandatory penalties if permitted by the Guidelines. It is the sense of the Commission that, despite the indeterminate nature of its Approved MSGC Meeting Minutes 4 February 20, 2015

proposed criminal sanctions, Article 3, if enacted, would not materially harm the continued successful application of Sentencing Guidelines within the State of Minnesota. 9. Executive Director s Report The Executive Director explained that the agency had been responding to a number of fiscal note requests from the legislature. He explained that a bill requiring the Commission to perform racial impact screenings had been introduced into the Senate as Senate File 769. There was also a parole board bill introduced in the Senate as Senate File 274. The director said that he would continue to monitor the progress of these bills and report back to the Commission. The Executive Director explained that Ellen Whelan-Wuest, a Justice Reinvestment Project Manager with the Council of State Governments, would be visiting Minnesota next month and would like to meet informally with a few members of the Commission if possible. It was also reported that new appointments to the Commission are still pending. 10. Public Input The Chair recognized that a member of the public had been present during the meeting. 11. Outgoing Commission-Member Recognition The Chair presented outgoing member Jason Anderson with a certificate of recognition for his contribution to the mission of promoting public safety and the public good by establishing rational, consistent, and equitable sentencing standards in the State of Minnesota through his selfless service as a probation officer member. 12. Adjournment Motion to adjourn made by Commissioner of Corrections Roy and seconded by Ms. Vang. The meeting adjourned at 4:00 p.m. Approved MSGC Meeting Minutes 5 February 20, 2015

Minnesota Sentencing Guidelines Commission 309 Administration Building, 50 Sherburne Avenue, Saint Paul, Minnesota 55155 Voice: (651) 296-0144 Fax: (651) 297-5757 TTY: 1(800) 627-3529 Ask for (651) 296-0144 Website: http://mn.gov/sentencing-guidelines/ Email: sentencing.guidelines@state.mn.us WHEN: March 19, 2015 2:00 p.m. to 4:00 p.m. COMMISSION MEETING WHERE: Capitol Complex Minnesota Judicial Center, Room G-31 25 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, MN 55155 AGENDA 1. Call to Order 2. Approval of Agenda (Action Item) 3. Approval of Draft Meeting Minutes from February 19, 2015 (Action Item) 4. Reasons for Departure in the Guidelines (Further Discussion and Possible Action Item) a. Review of Departure Report form and Potential Revisions to Guidelines 2.D. b. Defendant s Request for Execution as Departure 5. Racial Impact Screening and Senate File 769 (Possible Action Item) 6. Consecutive Supervised Release Update (Discussion Item) 7. Executive Director s Report (Discussion Items) 8. Public Input Members of the public may speak for up to three minutes each as governed by the Chair. 9. Adjournment If you require special accommodations to attend this meeting, please contact the Minnesota Sentencing Guidelines Commission as soon as possible. MSGC An Equal Opportunity Employer

Minnesota Sentencing Guidelines Commission 309 Administration Building, 50 Sherburne Avenue, Saint Paul, Minnesota 55155 Voice: (651) 296-0144 Fax: (651) 297-5757 TTY: 1(800) 627-3529 Ask for (651) 296-0144 Website: http://mn.gov/sentencing-guidelines/ Email: sentencing.guidelines@state.mn.us COMMISSION WORKSHOP AND MEETING WHEN: April 16, 2015 1:30 p.m. to 2:00 p.m. WORKSHOP AGENDA* WHERE: Capitol Complex Minnesota Judicial Center, Room 220 25 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, MN 55155 1. Feedback on Criminal History Enhancements Sourcebook Kelly Mitchell, Executive Director, Robina Institute of Criminal Law and Criminal Justice * No votes or official action will be taken. WHEN: April 16, 2015 2:00 p.m. to 4:00 p.m. MEETING AGENDA WHERE: Capitol Complex Minnesota Judicial Center, Room 220 25 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, MN 55155 1. Call to Order 2. Approval of Agenda (Action Item) 3. Approval of Draft Meeting Minutes from March 19, 2015 (Action Item) MSGC An Equal Opportunity Employer

AGENDA - MSGC Workshop and Meeting April 16, 2015 Page 2 4. Reasons for Departure in the Guidelines (Possible Action Item) a. Defendant s request for execution as departure b. Factors not to be used as reasons for departure c. Review of departure report form 5. Racial Impact Screening (Possible Action Item) 6. Ranges in the Shaded Areas of the Grids (Possible Action Item) 7. Executive Director s Report (Discussion Items) 8. Public Input Members of the public may speak for up to three minutes each as governed by the Chair. 9. Adjournment If you require special accommodations to attend this meeting, please contact the Minnesota Sentencing Guidelines Commission as soon as possible.

Minnesota Sentencing Guidelines Commission Approved Meeting Minutes March 19, 2015 The Minnesota Sentencing Guidelines Commission (MSGC) meeting was held on March 19, 2015 at the Minnesota Judicial Center; 25 Rev. Dr. Martin Luther King Jr. Blvd.; St. Paul, MN 55155; Room G- 31. Commission members present were Chair Jeffrey Edblad, Caroline Lennon, Jason Anderson, Justice Christopher Dietzen, Cathryn Middlebrook, Commissioner of Corrections Tom Roy, and Judge Heidi Schellhas. MSGC staff members present were Executive Director Nate Reitz, and staff members Mike Jones, Kathleen Madland, and Anne Wall. Assistant Attorney General Jim Early was present. 1. Call to Order The Chair called the meeting to order at 2:00 p.m. 2. Approval of Agenda Motion made by Justice Dietzen and seconded by Mr. Anderson to approve the agenda. 3. Approval of Meeting Minutes Motion made by Commissioner of Corrections Roy and seconded by Judge Lennon to approve the February 19, 2015, meeting minutes. 4. Reasons for Departure in the Guidelines The Commission further discussed the reasons for departure in the Guidelines. The Commission discussed Guidelines policy regarding whether a presumptive stayed sentence that is executed upon a defendant s peremptory demand for execution of sentence should be counted an aggravated dispositional departure. Commissioner Roy made a motion to adopt staff-provided language amending Guidelines 2.D. and comment 3.A.202. Following discussion, the motion was withdrawn pending staff redrafting of the language of the motion to conform to the will of the Commission as expressed during its discussion.

The Executive Director submitted to the Commission the current version of the Departure Report form. Commission discussed the form and the uses to which it is put, and members provided staff with suggestions for improvement to the form. Motion to accept the following addition to Guidelines 2.D.3 (regarding mitigating factors that may be used as reasons for departure) made by Commissioner of Corrections Roy and seconded by Judge Lennon. * * * (7) The offender is particularly amenable to probation. This factor may, but need not, be supported by the fact that the offender is particularly amenable to a relevant program of individualized treatment in a probationary setting. 2.D.303. The requirement that a defendant be particularly amenable to probation ensures that the defendant's amenability to probation distinguishes the defendant from most others and truly presents the substantial and compelling circumstances necessary to justify a departure. State v. Soto, 855 N.W.2d 303, 309 (Minn. 2014). While social or economic factors cannot justify a departure, such facts may be relevant to determining whether a defendant is particularly amenable to probation. Id at 312. In determining whether a defendant is particularly suitable to individualized treatment in a probationary setting, for example, a court is permitted to consider the defendant s age, prior record, remorse, cooperation, attitude before the court, and social support. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). The Commission also discussed the wording of factors that should not be used to depart (Guidelines 2.D.2). The discussion was tabled. 5. Racial Impact Screening and Senate File 769 The Chair called on the Executive Director to explain the issue before the Commission. Executive Director Reitz directed the Commission to the relevant materials: Senate File 769, and presented information regarding Racial Impact Statements. The Executive Director offered a new MSGC Racial Impact Policy for the Commission s review. In proposed Senate File 769, it is stated that MSGC screens any bill which may affect the racial composition of the criminal offender population. If a bill may affect the racial composition of the criminal offender population, MSGC will issue a racial impact statement. The Commission discussed the issue. The Executive Director welcomed guidance from the Commission on how to proceed with refining the policy. A Commission member added that they would prefer that Racial Impact Statements be made when there is potential for a bill to create either a positive or negative racial impact, not just a negative racial impact. The item was tabled. Approved MSGC Meeting Minutes 2 March 25, 2015

6. Consecutive Supervised Release Update The Chair called on the Executive Director to update the Commission on information regarding consecutive supervised release. Additional materials were made available regarding post- Schnagl cases. Due to the numerous pending cases involving related issues, the Commission believed that further discussion on this issue would be premature. The Chair suggested that the Executive Director provide the Commission with a status update in about 60 days. 7. Executive Director s Report The Executive Director explained that new appointments to the Commission may be made by the April meeting. Because of this, two tentative agendas will be made: one if there are new members of the Commission that have been appointed, and another (traditional) agenda if new members are not appointed. Commissioners who went to the Justice Reinvestment Conference briefly shared their experience with the other members. The Executive Director shared with the Commission that the Executive Director of the Robina Institute has requested time on next month's agenda for the Commission to review a draft of her book. It was decided that this could be part of a pre-meeting for those members interested in sharing their feedback. 8. Public Input No members of the public had been present during the meeting. 9. Adjournment Motion to adjourn made by Justice Dietzen and seconded by Mr. Anderson. The meeting adjourned at 4:03 p.m. Approved MSGC Meeting Minutes 3 March 25, 2015

Minnesota Sentencing Guidelines Commission Approved Meeting Minutes April 16, 2015 The Minnesota Sentencing Guidelines Commission (MSGC) meeting was held on April 16, 2015 in Room 220, Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, MN 55155. Commission members present were Chair Jeffrey Edblad, Vice-Chair Justice Christopher Dietzen, Sergeant Paul Ford, Judge Caroline Lennon, Cathryn Middlebrook, Commissioner of Corrections Tom Roy, and Judge Heidi Schellhas. MSGC staff members present were Executive Director Nate Reitz, and staff members Mike Jones, Anne Wall, and Jill Payne. Assistant Attorney General Jim Early was present. Members of the public present were Karen Chung, Carl Reynolds, and Ellen Whelan-Wuest, Council of State Governments Justice Center; Professor Richard Frase, Rhys Hester, and Kelly Mitchell, University of Minnesota Law School, Robina Institute of Criminal Law and Criminal Justice, and Lisa Netzer, MN Department of Corrections. Workshop A pre-meeting workshop, open to the public, was held before the meeting from 1:30-2:00 p.m. Professor Richard Frase, Rhys Hester, and Kelly Mitchell from the Robina Institute of Criminal Law and Criminal Justice, University of Minnesota Law School, presented portions of their forthcoming Criminal History Enhancements Sourcebook to the Commission for its feedback. No votes or official action were taken during the workshop. Meeting 1. Call to Order The Chair called the meeting to order at 2:01 p.m. 2. Approval of Agenda This was on the agenda as an action item. Motion made by Judge Lennon and seconded by Justice Dietzen to approve the agenda.

3. Approval of Meeting Minutes This was on the agenda as an action item. Motion made by Justice Dietzen and seconded by Commissioner Roy to approve the meeting minutes from March 19, 2015. 4. Reasons for Departure in the Guidelines These items were on the agenda as possible action items. The Chair called on the Executive Director to explain each item related to departures. a. Defendant s Request for Execution as Departure Executive Director Reitz directed the Commission to the relevant materials: Defendant s Request for Execution as Departure. The item was on the agenda on March 19, 2015 at which time the Commission directed staff to redraft draft modification language related to an offender s right to demand an executed sentence. Motion to approve modification language as presented for public hearing consideration made by Commission of Corrections Roy and seconded by Sgt. Ford. A discussion ensued. Motion amended to approve the following modification language for public hearing consideration made by Commission of Corrections Roy and seconded by Sgt. Ford. D. Departures from the Guidelines * * * x. Offender s Demand for Execution. A sentence that is executed pursuant to an offender s right to demand execution is not an aggravated dispositional departure. * * * 2.D.10x. An offender generally has the right to demand execution of sentence. State v. Rasinski, 472 N.W.2d 645, 651 (Minn. 1991); see also Minn. Stat. 609.135, subd. 7. Approved MSGC Meeting Minutes 2 April 16, 2015

The Commission does not regard the execution of a presumptively stayed sentence as a departure from the Guidelines if the record, or the Court s communication to the Commission, reflects that the sentence was executed upon the offender's peremptory demand. * * * 3.A.202. While the Commission has resolved not to develop guidelines for nonimprisonment sanctions at this time, the Commission believes it is important for the sentencing courts to consider proportionality when pronouncing a period of local confinement as a condition of probation. This is particularly important given Minn. Stat. 609.135, subd. 7, which states that when an offender may not demand execution of sentence. The period of local confinement should be proportional to the severity of the conviction offense and the criminal history score of the offender. Therefore, the period of local confinement should not exceed the term of imprisonment that would be served if the offender were to have received an executed prison sentence according to the presumptive Guidelines duration. * * * * b. Factors not to be used as reasons for departure Executive Director Reitz directed the Commission to the relevant materials: Impermissible Departure Reasons. The item was on the agenda on March 19, 2015 at which time the Commission tabled any action with respect to the list of factors not to be used for departure (Section 2.D.2). The Commission discussed whether the list of factors not to be used for departure should be modified. Motion to table the issue made by Commissioner Roy and seconded by Judge Schellhas. The Commission directed staff to redraft Section 2.D.2.b and contact the Commissioner of Human Rights regarding Section 2.D.2.a, for acceptable language in accordance with Minn. Stat. Ch. 363A. c. Review of departure report form Executive Director Reitz directed the Commission to the redrafted departure report form and explained that the form had been revised based on feedback received at the March Commission meeting. The Commission suggested further revisions to Approved MSGC Meeting Minutes 3 April 16, 2015

page 2 of the form to make it clearer which reasons were sanctioned and which were not. 5. Racial Impact Screening This was on the agenda as a possible action item. The Chair called on the Executive Director to explain the issue before the Commission. Executive Director Reitz directed the Commission to a letter to the Commission Chair dated April 9, 2015, explaining the agency s racial impact statement policy. Mr. Reitz explained that the purpose of a racial impact screening is to allow legislators to evaluate, and possibly ameliorate, racial disparities that would be exacerbated by policies within significant crime bills, and to appreciate when existing racial disparities would be alleviated by policies within significant crime bills, and described the agency s criteria for conducting racial impact screening. Resolved that the Commission supports its staff s continued practice of preparing racial impact statements for the legislature, as moved by Commissioner Roy and seconded by Justice Dietzen. 6. Ranges in the Shaded Areas of the Grids This was on the agenda as a possible action item. Executive Director Reitz directed the Commission to the relevant materials: Ranges in Shaded Areas of the Grids. Director Reitz explained that the issue was that the Guidelines are ambiguous as to whether upper and lower ranges apply only to presumptive commitments, or if they apply to both presumptive commitments and presumptive stayed sentences. Motion to table the issue made by Commissioner Roy and seconded by Judge Lennon. 7. Executive Director s Report The Executive Director explained that the Commission s May meeting would be dedicated to considering and ranking crime legislation and that the June meeting would focus on planning and new-member orientation. Approved MSGC Meeting Minutes 4 April 16, 2015

8. Public Input The Chair recognized members of the public. No one cared to speak. 9. Adjournment Motion to adjourn made by Justice Dietzen and seconded by Cathryn Middlebrook. The meeting adjourned at 3:33 p.m. Approved MSGC Meeting Minutes 5 April 16, 2015

Minnesota Sentencing Guidelines Commission 309 Administration Building, 50 Sherburne Avenue, Saint Paul, Minnesota 55155 Voice: (651) 296-0144 Fax: (651) 297-5757 TTY: 1(800) 627-3529 Ask for (651) 296-0144 Website: http://mn.gov/sentencing-guidelines/ Email: sentencing.guidelines@state.mn.us COMMISSION MEETING WHEN: May 21, 2015 2:00 p.m. to 4:00 p.m. WHERE: Capitol Complex Minnesota Judicial Center, Room G-31 25 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, MN 55155 AGENDA 1. Call to Order 2. Approval of Agenda (Action Item) 3. Approval of Draft Meeting Minutes from April 16, 2015 (Action Item) 4. Commemoration of the 35 th Anniversary of the Minnesota Sentencing Guidelines 5. New-Member Welcome and Introductions (if applicable) 6. Recognition of Outgoing Member(s) 7. Guidelines Modifications Relating to Crimes Created or Amended by the Legislature (Action Item) a. Amended Crimes b. Created Crimes 8. Factors Not to be Used as Reasons for Departure (Possible Action Item) 9. Public Input Members of the public may speak for up to three minutes each as governed by the Chair. MSGC An Equal Opportunity Employer

MN Sentencing Guidelines Commission Meeting Agenda May 21, 2015 Page 2 10. Possible Change in Meeting Day and Time (Possible Action Item) 11. Director s Report 12. Adjournment If you require special accommodations to attend this meeting, please contact the Minnesota Sentencing Guidelines Commission as soon as possible.

Minnesota Sentencing Guidelines Commission Approved Meeting Minutes May 21, 2015 The Minnesota Sentencing Guidelines Commission (MSGC) meeting was held on May 21, 2015 in Room G-31, Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, MN 55155. Commission members present were Chair Jeffrey Edblad, Vice-Chair Justice Christopher Dietzen, Sergeant Paul Ford, Judge Caroline Lennon, Cathryn Middlebrook, Commissioner of Corrections Tom Roy, Judge Heidi Schellhas, and Yamy Vang. MSGC staff members present were Executive Director Nate Reitz, and staff members Mike Jones, Kathleen Madland, Linda McBrayer, Anne Wall, and Jill Payne. Assistant Attorney General Jim Early was present. Members of the public present were Commissioner of Human Rights Kevin Lindsey; Scott Beutel, Legislative & Public Affairs Liaison, Department of Human Rights; and Bill Lemons, Minnesota County Attorneys Association. 1. Call to Order The Chair called the meeting to order at 2:00 p.m. 2. Approval of Agenda This was on the agenda as an action item. Motion made by Sgt. Ford and seconded by Justice Dietzen to take agenda items out of order to accommodate members of the public in attendance. 3. Approval of Meeting Minutes This was on the agenda as an action item. Motion made by Judge Lennon and seconded by Ms. Vang to approve the meeting minutes from April 16, 2015. 4. Commemoration of the 35 th Anniversary of the Minnesota Sentencing Guidelines The Chair stated that 35 years ago, on May 1, 1980, Minnesota became the first state in the nation to implement sentencing guidelines and asked Commission members, staff,

and members of the public present to join him in celebrating the Minnesota Sentencing Guidelines 35th birthday. 5. New-Member Welcome and Introductions (if applicable) The Chair indicated that there were no new members to recognize. 6. Recognition of Outgoing Member(s) The Chair indicated that there were no outgoing members present to recognize. 7. Guidelines Modifications Relating to Crimes Created or Amended by the Legislature This was on the agenda as an action item. The Chair called on the Executive Director Reitz who led the Commission through three documents in the meeting materials related to modifications to the Sentencing Guidelines. A. Modifications to the Sentencing Guidelines 2015 Legislative Bills Passed into Law; Creating or Amending Crime Laws 2015 Minn. Laws ch. 23, 1, expanded fourth-degree assault protections to employees supervising and working directly with mentally-ill and dangerous patients by amending Minn. Stat. 609.2231, subd. 3a. It was explained that the Commission must decide if the amended offense must be re-ranked, if there should be any amendments to the permissive consecutive offense list, or other amendments to the Guidelines based on the amendments to the law. Staff recommended, first, that the Severity Level 1 ranking in section 5 be maintained because the statutory maximum remained two years. Second, staff recommend that assault in the fourth degree remain on the list of offenses in section 6 which are eligible for permissive consecutive sentences. Third, staff recommended that the fourth-degree assault offense titles, as listed in Section 5.B., be updated to reflect statutory changes to fourth-degree assault enacted since 2004, by deleting Bodily Harm from the fourth-degree assault offense titles, and by adding, Prosecutor, Judge, Probation Officer in the offense title for Minn. Stat. 609.2231, subd. 3. Fourth, staff recommended that Appendix 1 be updated to reflect the MSOP-related mandatory minimum, as well as to clarify the general rule regarding executed consecutive sentencing for assaults committed by prison inmates, by revising the footnote in Section 5.B. pertaining to fourth-degree assault to read, * See section 2.C and Appendix 1 to determine the presumptive disposition for a felony assault Approved MSGC Meeting Minutes 2 May 21, 2015

committed by an State prison inmate serving an executed term of imprisonment or for assault on secure treatment facility personnel by persons committed to the Minnesota Sex Offender Program. ; and by revising the Appendix 1 entry for Minn. Stat. 609.221-609.2231 as follows: revising the Statute to 609.221, 609.222, 609.223, 609.2231 or 609.224 ; revising the Offense to Assault 1st through 5th Degree ; revising the Prerequisite or Conditions to Committed by State prison inmate while confined (609.2232) Must commit during Term of Imprisonment portion of executed sentence ; and revising the Minimum Duration to Grid Time, Consecutive. Motion to adopt the staff recommendations made by Commissioner Roy and seconded by Justice Dietzen. Two other bills which affect crimes were passed into law by the 2015 Legislature. Although these laws were amended, the crimes themselves were not amended. It was explained that staff brought the changes forward for the Commission s information, but no action was required. The laws were: 1) 2015 Minn. Laws ch. 21, art 1, 37, 66, 98-100, which amended murder in the first degree under Minn. Stat. 609.185; and 2) 2015 Minn. Laws ch. 4, 1, which amended reporting of maltreatment of minors under Minn. Stat. 626.556. B. Modifications to the Sentencing Guidelines 2015 Legislative Bills Presented to the Governor; Creating or Amending Crime Laws It was explained that the following were Legislative crime bills presented to the Governor but not yet signed into law. The bills must be reviewed and considered by the Commission for possible modifications to the Sentencing Guidelines provided the bills become laws. The following actions of the Commission were conditional on the Governor s signature of the bills, as presented. 1. Engaging in, Hiring, or Agreeing to Hire Minor to Engage in Prostitution (2015 Minn. Laws ch. 65, art. 6, 11-12) The prostitution statute was amended making the hiring of an adult prostitute a felony if the patron reasonably believes the prostitute to be a child under Minn. Stat. 609.324, subd. 1(c). Approved MSGC Meeting Minutes 3 May 21, 2015

Staff recommended: 1) maintaining the Severity Level 3 ranking in section 5 because the statutory maximum remains the same (5 years); and 2) that engaging or hiring a minor to engage in prostitution remain on the list of offenses in section 6 which are eligible for permissive consecutive sentences. Motion to adopt the staff recommendations, subject to the Governor s approval of the bill, made by Commissioner Roy and seconded by Ms. Vang. 2. Expanded Fifth-Degree Criminal Sexual Conduct (2015 Minn. Laws ch. 65, art. 6, 14, expanded) Fifth-degree criminal sexual conduct (CSC) under Minn. Stat. 609.3451, subd. 1, was amended to include intentionally touching the body or clothing with semen. Staff recommended: 1) maintaining the Severity Level F ranking in section 5 because the statutory maximum remains the same (7 years); and 2) that CSC 5 remain on the list of offenses in section 6 which are eligible for permissive consecutive sentences. Motion to adopt the staff recommendations, subject to the Governor s approval of the bill, made by Commissioner Roy and seconded by Justice Dietzen. 3. Felons Not to Possess Ammunition (2015 Minn. Laws ch. 65, art. 3, 16-20, 26, 33) A definition for ammunition under Minn. Stat. 609.02, subd. 17 was added. Persons who are not allowed to possess firearms are not allowed to possess ammunition, and felons previously convicted of a crime of violence who do so are subject to the 5-year mandatory minimum prison sentence under Minn. Stat. 609.11. Staff recommended that sections 5.A and 5.B be amended to add or Ammunition after Certain Persons Not to Have Firearms in the existing offense titles. Approved MSGC Meeting Minutes 4 May 21, 2015

Motion to adopt the staff recommendations, subject to the Governor s approval of the bill, made by Commissioner Roy and seconded by Ms. Vang. 4. Suppressors (2015 Minn. Laws ch. 65, art. 3, 19-20) The bill permits firearm suppressors (formerly known as silencers ) to be possessed if lawfully possessed under federal law. The bill also amends the title of the reckless discharge offense under Minn. Stat. 609.66 by striking silencers and inserting suppressors. The law clarifies that it is lawful to carry a firearm in the Capitol area provided there was an issuance of a permit to carry. Staff recommended that sections 5.A and 5.B be amended to change Silencer to Suppressor in the existing offense titles. Motion to adopt the staff recommendations, subject to the Governor s approval of the bill, made by Justice Dietzen and seconded by Sgt. Ford. 5. Expanded Financial Transaction Card Fraud (2015 Minn. Laws ch. 78, 60) Financial Transaction Card Fraud was amended to include trafficking of SNAP (Supplemental Nutrition Assistance Program) benefits. Staff recommended continuing to rank financial transaction card fraud at Severity Level 2 when the value was at $2,500 or less but more than $250; Severity Level 3 when the value was more than $2,500; and Severity Level 5 when the value was more than $35,000. Motion to adopt the staff recommendations, subject to the Governor s approval of the bill, made by Judge Lennon and seconded by Judge Schellhas. 6. Wrongful Employment at a Child Care Center (2015 Minn. Laws ch. 78, 59) A new felony was created for wrongful employment at a child care center under Minn. Stat. 609.816. It was explained that one of the responsibilities of the Approved MSGC Meeting Minutes 5 May 21, 2015

Commission was to assign severity-level rankings to new crimes and to consider whether they should be added to the list of offenses eligible for permissive consecutive sentences. The Commission bases its decisions, in part, on the level of harm caused by the offense and the culpability of the offender. Statutory maximums are also considered. Staff recommended adding 609.816, Wrongful Employment at a Child Care Center to the Theft Offense List in Section 7, and referencing the new offense in section 5.B at Severity Level 3 (statute number 609.816, offense title Wrongful Employment at a Child Care Center (Over $5,000) ) and Severity Level 2 (statute number 609.816, offense title Wrongful Employment at a Child Care Center ($5,000 or Less) ). Motion to adopt the staff recommendations, subject to the Governor s approval of the bill, made by Justice Dietzen and seconded by Ms. Vang. 7. New gross misdemeanor offenses (2015 Minn. Laws ch. 65, art. 3, 31, and 2015 Minn. Laws ch. 65, art. 6, 3 & 17) Two gross misdemeanor offenses were created and one offense was amended to include a new gross-misdemeanor level. Executive Director Reitz explained that staff brought these offenses to the Commission s attention because gross misdemeanors are used in the calculation of an offender s Criminal History Score. The new gross misdemeanors were: 1) purchasing firearm on behalf of ineligible person (2015 Minn. Laws ch. 65, art. 3, 31) under Minn. Stat. 624.7133; and 2) adulteration of bodily fluids (2015 Minn. Laws ch. 65, art. 6, 17) under Minn. Stat. 609.688. Reckless driving was enhanced to a gross misdemeanor when death or great bodily harm results (2015 Minn. Laws. Ch. 65, art. 6, 3). Staff recommended that the Commission discuss the amendments made to reckless driving to consider whether it wished to treat the crime like traffic gross misdemeanors or like gross misdemeanor DWIs and non-traffic gross misdemeanors. If the Commission wished that an offender receive a custody status point for being in a custody status for gross misdemeanor reckless driving, staff Approved MSGC Meeting Minutes 6 May 21, 2015

recommended changing section 2.B.2.a.(3)(iv) to gross misdemeanor driving while impaired, or refusal to submit to a chemical test, or reckless driving; or. If the Commission wished that gross misdemeanor reckless driving may contribute to an offender s criminal history score, staff recommended renumbering section 2.B.3.a.(5) as 2.B.3.a.(6), and inserting the following new section 2.B.3.a.(5): gross misdemeanor reckless driving;. Motion made by Sgt. Ford and seconded by Ms. Vang, subject to the Governor s approval of the bill, to treat reckless driving like gross misdemeanor DWIs and non-traffic gross misdemeanors. A discussion ensued. Motion carried, with Ms. Middlebrook opposed. 8. Other crime changes presented to the Governor not requiring the Commission s action. Staff discussed the reduction in the alcohol concentration level required to enhance DWI offenses in the third and second degree, and the creation of the affirmative defense of industrial hemp possession to a prosecution for marijuana possession. No action was recommended or taken regarding these topics. C. Technical Modifications to the Sentencing Guidelines 2015 Revisor s Instruction and Other Staff Recommendations The Executive Director outlined three suggested technical changes to the Guidelines. 1. Change to Headnote for Minn. Stat. 609.713 A Revisor of Statutes instruction in 2015 Minn. Laws ch. 21, art. 1, 109, subd. 10, changed the headnote for Minn. Stat. 609.713 from Terroristic Threats to Threats of Violence. Staff recommended changing terroristic threats to threats of violence wherever appearing in the Guidelines and Commentary. In sections 5.A and 5.B and Appendix 3, staff recommended changing the offense referenced by Minn. Stat. 609.713, subd. 1, to Threats of Violence (Terror/Evacuation) ; by subd. 2 to Threats of Violence (Bomb Threat) ; and by subd. 3(a) to Threats of Violence (Replica Firearm). Approved MSGC Meeting Minutes 7 May 21, 2015

Motion to adopt the staff recommendations made by Justice Dietzen and seconded by Ms. Middlebrook. 2. Criminal Damage to Property Absent a risk of bodily harm, felony criminal damage to property in the first degree is ranked at Severity Level 2. Criminal damage to property in the second degree involves the intentional causes to damage because of the property owner's or another's actual or perceived race, color, religion, sex, sexual orientation, disability. Because the descriptive titles in section 5 are incomplete, they may cause confusion. In sections 5.A and 5.B, staff recommended changing the offense referenced by Minn. Stat. 609.595, subd. 1(1) to Damage to Property 1st Degree (Risk Bodily Harm) ; by subd. 1(2), (3), & (4) to Damage to Property 1st Degree (Common Carrier/$1,000/$500 and subsequent) ; and by subd. 1a(a) to Damage to Property 2nd Degree (Motivated by Bias). Motion to adopt the staff recommendations made by Sgt. Ford and seconded by Judge Schellhas. 3. Expunged Records A comment in Guidelines section 2.B related to access to expunged records should be updated to delete references to expired statutory language. Staff recommended deleting the language in comment 2.B.03 up to, and including, Effective January 1, 2015, ; beginning the comment with the following: Minn. Stat. 609A.03, subd. 7a(b), provides, in part that: ; and deleting the semicolon and adding a period at the end of the comment. Motion to adopt the staff recommendations made by Ms. Vang and seconded by Justice Dietzen. Approved MSGC Meeting Minutes 8 May 21, 2015

8. Possible Change in Meeting Day and Time This was on the agenda as a possible action item. Members discussed changing the monthly meeting date from the third Thursday of the month. Motion to hold the Commission meetings on the fourth Wednesday of the month beginning July 22, 2015, made by Judge Schellhas and seconded by Justice Dietzen. It was noted that the fourth Wednesday of the month falls the day before major holidays in November and December. The Chair said that rescheduling the November and December meetings could be discussed in September. 9. Factors Not to be Used as Reasons for Departure This was on the agenda as a possible action item. The item was previously on the agenda April 16, 2015, at which time the Commission requested staff to redraft Section 2.D.2.b and contact the Commissioner of Human Rights regarding Section 2.D.2.a, for acceptable language in accordance with Minn. Stat. Ch. 363A. Director Reitz gave a presentation on impermissible reasons for departure and the Commission discussed the issue. Motion made by Commissioner Roy and seconded by Justice Dietzen to table further discussing on impermissible reasons for departure and to direct the Commission s Counsel to conduct legal research on impermissible reasons for departure and the staff to consult other states to determine which reasons for departure are impermissible. 10. Public Input The Chair recognized members of the public including Commissioner of Human Rights Kevin Lindsey who wished to thank the Commission and staff for making time for the discussion about impermissible reasons for departure and for seeking his advice. Approved MSGC Meeting Minutes 9 May 21, 2015

11. Executive Director s Report The Executive Director explained that a delegation of authority was signed by the Chair entrusting powers and duties to the Executive Director to execute contracts and sign purchasing documents on behalf of the agency. The document will be filed with the Secretary of State s Office. 12. Adjournment Before adjournment, the Chair recognized Commissioner Roy who wished to add to a future meeting agenda, an informed discussion of the Commission s fourth principle in sec. 1.A.4, related to state and local correctional resources being finite. Motion to adjourn made by Justice Dietzen and seconded by Yamy Vang. The meeting adjourned at 3:56 p.m. Approved MSGC Meeting Minutes 10 May 21, 2015

Minnesota Sentencing Guidelines Commission 309 Administration Building, 50 Sherburne Avenue, Saint Paul, Minnesota 55155 Voice: (651) 296-0144 Fax: (651) 297-5757 TTY: 1(800) 627-3529 Ask for (651) 296-0144 Website: http://mn.gov/sentencing-guidelines/ Email: sentencing.guidelines@state.mn.us COMMISSION WORKSHOP AND MEETING WHEN: June 18, 2015 Noon to 4:00 p.m. WHERE: Capitol Complex Minnesota Judicial Center, Room G-31 25 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, MN 55155 AGENDA 1. Welcome and Introductions Justice Chris Dietzen, MSGC Chair, and Nate Reitz, MSGC Director 2. Business Meeting a. Approval of May 21, 2015, Meeting Minutes (Action Item) b. Recognition of Outgoing Chair c. Election of Chair Pro Tem for the July 15, 2015, Public Hearing d. Public Comments Members of the public may speak for up to three minutes each as governed by the Chair. 3. History and Goals of the Guidelines Prof. Richard Frase, University of Minnesota Law School 4. Applying the Guidelines Linda McBrayer, MSGC Staff 5. Break MSGC An Equal Opportunity Employer

AGENDA - MSGC Workshop and Meeting June 18, 2015 Page 2 6. Sentencing Practices Kathleen Madland, Anne Wall and Jill Payne, MSGC Staff 7. Sentencing Practices and Prison Populations Grant Duwe, Ph.D., Minnesota DOC Research Director 8. Break 9. Commission s Role in Sentencing Policy Nate Reitz, MSGC Director 10. Facilitated Discussion and Planning Nate Reitz, MSGC Director 1. Do you see a problem? 2. If so, what do you see as the solution? 3. What do you want to be on the agenda in the next year? 4. What would you like to see in the January 2016 Report to the Legislature? Next Meeting Dates: DATE/TIME LOCATION TENTATIVE TOPIC Wed. July 15, 2:00pm State Office Building, Room 200 Public hearing; no quorum required, attend if possible. Wed. July 22, 2:00pm MN Judicial Center, Room 225 Follow-up meeting to approve or reject modifications. Quorum required.

Minnesota Sentencing Guidelines Commission Approved Meeting Minutes June 18, 2015 The Minnesota Sentencing Guidelines Commission (MSGC) meeting was held on June 18, 2015 in Room G-31, Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, MN 55155. Commission members present were Chair Justice Christopher Dietzen, Angela Champagne-From, Jeffrey Edblad, Sergeant Paul Ford, Judge Caroline Lennon, Cathryn Middlebrook, Commissioner of Corrections Tom Roy, Judge Heidi Schellhas, Yamy Vang, and Senior Judge Mark Wernick. MSGC staff members present were Executive Director Nate Reitz, and staff members Mike Jones, Linda McBrayer, Anne Wall, and Jill Payne. Assistant Attorney General Jim Early was present. Members of the public present were Andrea and Mark Flolo; Professor Richard Frase, University of Minnesota Law School; Grant Duwe, Kathleen Lonergan and Lisa Netzer, MN Department of Corrections; Mike Valleau, Committee Administrator, MN House of Representatives; Emily Lefholz, Committee Administrator, MN Senate; and Robert Small, MN County Attorneys Association. 1. Welcome and Introductions The Chair called the meeting to order at 12:00 p.m. The Chair welcomed members and members introduced themselves. The Chair called on the Executive Director to introduce the meeting agenda. Director Nate Reitz explained that the meeting would be a workshop format and that the staff was looking for guidance from the Commission in what it would like on its agendas for the next year. The Commission took a 20 minute break for lunch. 2. Business Meeting a. Approval of Agenda Motion made by Mr. Edblad and seconded by Ms. Vang to approve the meeting agenda. b. Approval of May 21, 2015, Meeting Minutes This was on the agenda as an action item.

Motion made by Commissioner Roy and seconded by Judge Schellhas to approve the meeting minutes from May 21, 2015. c. Recognition of Outgoing Chair The Chair recognized the outgoing Chair, Jeff Edblad, for his membership on the Minnesota Sentencing Guidelines Commission since 2003, and serving as Chair since 2007. The Chair said that Jeff will continue his service as the County Attorney Member of the Sentencing Guidelines Commission, and wished to honor his service as the longest-serving Chair in the history of Minnesota Sentencing Guidelines. The Chair presented Mr. Edblad with a plaque. d. Election of Chair Pro Tem for the July 15, 2015, Public Hearing This was on the agenda as an action item. Motion made by Commissioner Roy and seconded by Ms. Middlebrook to elect Mr. Edblad the Chair Pro Tem for the July 15, 2015, public hearing. e. Public Comments Andrea Flolo, spoke to the Commission about the burglary crime in which she and her family were the victims. Ms. Flolo wrote to the Commission in an email dated April 8, 2015, as well. Members received in their meeting materials copies of the email and the sentencing worksheets of the offender, Tobias Coleman. Ms. Flolo spoke to the Commission about how the crime affected her and her family and asked the Commission to examine the Guidelines for burglary offenses. 3. History and Goals of the Guidelines The Chair introduced guest speaker Professor Richard Frase from the University of Minnesota Law School who spoke about the history and original goals of the Minnesota Sentencing Guidelines. 4. Applying the Guidelines The Chair introduced staff member Linda McBrayer who gave a presentation on how the Guidelines are applied including severity-level ranking, criminal history score, the Approved MSGC Meeting Minutes 2 June 18, 2015