Sentencing Guidelines staff tell probation officers to equate out‑of‑state convictions by conduct, not label, after Johnson ruling

Linda, a staff member with the Sentencing Guidelines Commission, told probation officers at an April lunch-and-learn that when evaluating out‑of‑state convictions they should focus on the conduct and how it would translate to Minnesota law, not on the foreign jurisdiction’s label.

"Get rid of the ... where it came from. Doesn't matter where it came from. What matters is what they did and if and how that would translate to an offense here in Minnesota," Linda said, advising attendees to treat out‑of‑state offenses as though they had occurred under Minnesota statutes for purposes of initial assessment.

The guidance comes in the wake of the Johnson appellate decision, which Linda said clarifies that the prosecutor, not probation or defense, bears the burden of proving that an out‑of‑state conviction belongs to the defendant and equates to a Minnesota offense before it should be included in criminal‑history scoring. "The state bears the burden," she said, repeating the point several times throughout the session.

Why it matters: judges and sentencing worksheets rely on accurate criminal histories to calculate presumptive sentences under Minnesota guidelines. If out‑of‑state convictions are added to worksheets without sufficient proof, they can produce erroneous scores and lead to disputes or departures at sentencing, participants said.

Practical guidance and examples

Linda gave concrete examples probation officers can use when communicating with prosecutors and courts. For drug offenses, she recommended documenting the type of drug and the conduct (sale versus possession) and suggested phrasing such as "appears to be" when equating an offense pending confirmation. Using a hypothetical Arizona cocaine sale, she said it "would probably be at minimum a third‑degree controlled substance offense" under Minnesota law, and urged staff to seek certified records and prosecutor verification rather than asserting a definitive equivalency.

She also reviewed classification thresholds tied to imposed sentence length: 0–90 days for misdemeanors, 91–365 days for gross misdemeanors, and 366 days or more for felonies, and emphasized that the office looks at imposed sentences rather than mere time served. Linda noted a narrow federal exception: if a federal conviction has no Minnesota equivalent, it generally receives one unit in the gross‑misdemeanor section, but nearly all other out‑of‑state offenses must be equated to a Minnesota counterpart.

On juvenile adjudications, Linda reminded attendees that an out‑of‑state juvenile offense must meet Minnesota juvenile criteria (for example, the out‑of‑state adjudication must involve an adjudicated delinquency and certain age thresholds) to be used in the juvenile history calculation.

Leave unproven out‑of‑state counts off worksheets

Repeatedly, Linda urged probation staff not to include out‑of‑state convictions on worksheets until prosecutors or the court confirm eligibility. "If you are not given any information ... don't include them. Leave them off," she said, recommending that probationers notify parties that those counts are excluded pending proof of equivalency.

Local practice problems and a recommended fix

Several participants described practical problems in some counties where prosecutors were not running or were omitting out‑of‑state priors. Tammy, a meeting participant, said she found prosecutors sometimes did not check records and that she now sends a draft email to local prosecutors immediately after identifying out‑of‑state records, inserting the out‑of‑state statute and case number to request certified documents. Tammy said that proactive outreach has increased responses and, in some instances, led prosecutors to request records from other states.

Participants also reported specific cases in which prosecutors removed prior felonies before sentencing, producing confusion on worksheets and potential undercounting of criminal history at sentencing. Linda said such removals underscore the Johnson ruling’s point that the prosecutor must be prepared to establish equivalency and identity if they want those priors credited.

Decay, expiration and documentation

Linda walked through how decay/expiration dates affect whether an out‑of‑state conviction counts (using a 15‑year lookback for certain calculations) and urged staff to contact other states’ DOC or probation offices to verify discharge or expiration dates when necessary. She urged use of worksheet comments to document what an out‑of‑state offense was equated to in Minnesota and to provide the statute, case number and any supporting notes so future users can follow the rationale.

Closing and next steps

The session closed with an offer to share the slide packet and Tammy’s email template in chat or via the Sentencing Guidelines office email. Devonte Rocher, who opened the session, and Linda announced a follow‑up lunch‑and‑learn topic on enhanced offenses the following month and said attendance confirmations were available for supervisors. The presenters reiterated that, under Johnson, prosecutors must carry the burden to prove out‑of‑state convictions before they are used in criminal‑history scoring.