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Sentencing Guidelines staff explain custody‑status scoring, Robinette retroactivity and waiver rules
Summary
At a virtual Sentencing Guidelines Commission ‘‘lunch and learn,’’ staff reviewed custody‑status scoring (policy 2B2), how the Robinette decision affects defendants pending sentencing, the custody‑status three‑month enhancement, waiver procedures, and how to record custody in the Electronic Worksheet System.
Davance Roche and Linda McBriar, staff with the Sentencing Guidelines Commission, led a virtual lunchtime training focused on policy 2B2 — the rules for applying custody status when calculating criminal‑history scores. McBriar told attendees the session’s materials and archived manuals are available at mn.gov/sentencing-guidelines and offered a CLE credit code for participants.
McBriar said the commission’s 2019 changes to criminal‑history decay periods and custody‑status types were intended to take effect prospectively on Aug. 1, 2019, but that an appeal changed how those changes apply in practice. "Long story short, the Supreme Court agreed with him," she said, describing the Robinette appeal and its effect: defendants who were pending sentencing on 08/01/2019 can take advantage of the lowered criminal‑history scoring even if the offense date precedes the policy change. Staff emphasized that previously sentenced cases would require individual appeals to seek the benefit.
The session reviewed guideline effective dates (Aug. 1–July 31) and which manual to use for particular offense dates; McBriar said probation agents working in the commission’s Electronic Worksheet System (EWS) will see embedded guidance, while other practitioners should use the appropriate archived manual.
McBriar defined the custody‑status categories practitioners must track — including probation, stay of adjudication, supervised/conditional release, release pending sentencing, confined, escape and extended jurisdiction juvenile (EJJ) — and explained how those statuses translate into scoring: certain low‑severity priors, EJJ entries and targeted misdemeanors can generate a half‑point, while most other custody statuses yield a full point. "It's called the custody status enhancement, meaning no custody, no enhancement," McBriar said, describing how custody interacts with the enhancement rule.
She warned that out‑of‑state priors that have been deemed ineligible for criminal‑history use cannot be used to add a custody status, and she pointed attendees to Appendix 4 (the statute‑derived list of "targeted misdemeanors") for which misdemeanors can carry custody. McBriar also flagged a staff‑level EWS rounding error that at one point caused half‑point values to be aggregated incorrectly and discussed related cases (State v. Eubanks and a pending Baganovich decision) that informed how the commission elected to treat those half points in the system.
Practitioners were advised to add explanatory comments to worksheets if custody is present but the related prior has not yet been sentenced (for example, when an offender is released pending sentencing) and to watch the EWS presumptive sentence screen for waiver and ineligibility indicators. McBriar summarized the commission’s 2019 waiver policy: a defendant may move the court to waive a custody point (a departure that is discretionary for the judge), but EWS will disable the waiver option when statutory ineligibility questions are answered.
On penalties, McBriar explained the custody‑status enhancement adds three months once to the presumptive sentence and to the lower/upper ranges when the total criminal‑history score is 7 or more and a custody value is present; she cautioned that the enhancement cannot exceed any statutory maximums. In a closing Q&A, an attendee asked which prior to choose when multiple priors qualify; McBriar advised marking every custody status that applies and letting EWS select the appropriate half‑ or full‑point treatment, with practitioners adding comments as needed.
The session ended with instructions for obtaining the PowerPoint and a reminder that the next training will be Jan. 15, 2026. The presenters encouraged attendees to consult posted trainings and tip sheets on the Sentencing Guidelines Commission website for further guidance.
