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Minnesota Sentencing Guidelines Commission Chair Kelly Lyn Mitchell speaks during last week’s
meeting. Commission Executive Director Nate Reitz is at left. (Staff photo: Kevin Featherly)

Commission ranks crimes’ severity

 By: Kevin Featherly  June 12, 2019 0

There were a few closely contested votes June 6 when the Minnesota Sentencing Guidelines
Commission decided how to rank the severity of several new offenses.

But the commission’s new chair, Kelly Mitchell, doesn’t think anyone should read much into
that. Mitchell last week presided over just her second meeting after replacing former
Supreme Court Associate Justice Christopher Dietzen as chair.

“The offenses that we ranked today that had that kind of split to them are offenses that are
tricky,” Mitchell said after Thursday’s hearing. “So I really think that it doesn’t tell us
anything about how this commission will potentially function.”

The full 11-member cohort was not present at the hearing, possibly skewing vote totals.
Four members—designated crime-victim representative Abby Honold, 1st Judicial District
Judge Caroline Lennon, St. Paul Police Sgt. Salim Omari and Corrections Commissioner Paul
Schnell—all were absent.

Members on hand took up severity rankings for three modified sex-crime categories, the
state’s new felony wage-theft law and a previously unranked crime for counterfeiting
currency.

Sex crimes
The Legislature modified three sex-crime categories in the 2019 session, prompting the need
for the commission to rank their severity. Those included:

Criminal sexual conduct when the actor is a peace officer.

Child pornography and use of minors in a sexual performance (aggravated violations only)
Use of a surreptitious observation device when the victim is a minor and the device—
typically a camera—is used with sexual intent.

The first of those legislative changes amends the state’s third- and fourth-degree criminal
sexual conduct laws.

Minnesota Statutes Chapter 609.344 and 609.345 now include offenses involving peace
officers who engage in sexual penetration (a third-degree crime) or criminal sexual contact
(a fourth-degree crime), when the victim is physically or constructively restrained by the
officer.
Consent is not a defense under the statute.

Commission staff recommended that the third-degree crime be ranked as level C and the

fourth-degree crime be ranked at level E. On the grid, “C” is considered the more severe
offense.

The higher offense carries a presumptive prison term of 41 to 57 months even with the
lowest criminal history score of zero. The lesser offense includes a presumptive stayed
sentence unless the offender’s criminal history score is 3 or higher.

Washington County Attorney Pete Orput, a guidelines commissioner, said the change “makes
huge sense.” It matches other occupational sex-conduct crimes involving psychologists,
clergy, massage therapists and others, he said. He moved to adopt the recommendation.
The commission unanimously agreed.

Things got a little tougher after that. The newly modified child porn laws affect only
offenders convicted of a prior offense, registered predators or offenders whose victims are
13 years of age or younger. All three are considered aggravated factors.

Under the new statute, someone found in possession of child pornography involving a child
under age 13 faces a maximum of 10 years in prison. Given that, staff recommended ranking
the offense at severity level F. That was already true for prior and predatory offenders.

For dissemination of child porn involving a child under age 13, lawmakers raised the
statutory maximum to 15 years; staff recommended severity level D. That also was already
true for prior and predatory offenders.

For use of minors in a “sexual performance”—defined as “any play, dance or other exhibition
presented before an audience or for purposes of visual or mechanical reproduction”—a newly
modified law creates a 15-year maximum sentence for prior and predatory offenders, as well
as offenders whose victims are under age 13. Staff recommended they all be ranked at
severity level of D.

At the latter recommendation, Court of Appeals Judge Heidi Schellhas balked.

She noted that, for offenders convicted of using a minor in a sexual performance without any
aggravating factors present, the severity level is set at E. That carries a presumptive stay up
to a criminal history score of 2.

“I am very troubled by the fact that there would be a presumptive sentence, even with a
criminal history score of 2, of a stay—of probation,” Schellhas said. “I’m sorry. I think it is
depraved conduct. I can’t think of anything, aside from severe violent offenses, that more
implicates the public safety of children.”

She said she would not vote for staff’s recommendations if the base crime was left at
severity level E on the grid. Dietzen sided with Schellhas, as did Orput.

New member Tonja Honsey, “an incarceration survivor,” pushed back from the other
direction.

She said she preferred to wait to vote until results

of a legislatively required review of the entire sex-
offender grid are available, which the Legislature
has ordered. That could provide better data on the
risk of re-offense and the degree to which children
are at risk to the outlined aggravating factors.
New member Tonja Honsey, “an
“I think that we need to keep continuing to look at incarceration survivor,” speaks during
not incarcerating more people,” she said. last weeks meeting of the Minnesota
Sentencing Guidelines Commission.
(Staff photo: Kevin Featherly)
In the end, a majority of members—including
Honsey—voted 4-3 to accept staff
recommendations for those crimes.
The commission also ranked a new felony crime created in Chapter 609.746, involving use of
a “surreptitious observation device”—when the victim is a minor, the perpetrator is at least
36 months older than the victim and the intent of the spying is sexual. That offense was

added this year to the list of crimes that trigger mandatory predatory offender registration.

One question before the commission was whether to rank the crime on the standard grid or
the sex crimes grid; it opted for the latter. The other question was where to set the severity
ranking.

Commission staff recommended severity level G, which carries a presumptively stayed

sentence unless the offender has racked up a criminal history score of 4. After some debate,
the commission voted 4-2, with Mitchell abstaining, to go along with staff’s recommendation.

Easier questions
The commission had a comparatively easier time establishing severity rankings for the new
wage theft felony and a previously unranked crime of currency counterfeiting.

Staff recommended setting wage theft under $5,000 at severity level 2 on the standard
guidelines grid. The crime carries a presumptive stay of sentence all the way up to a criminal
history score of 5.

It opted for a severity level of 3 for wage theft of between $5,000 and $35,000—a level that
presumes a stay of sentence up to criminal history score 3. That’s identical to comparable
felony theft crimes.

Finally, staff recommended a severity level of 6 for felony wage theft over $35,000, putting
that crime on par with 2nd-degree assault and first-degree burglary. Its presumptive stay of
sentence ends after a criminal history score of 2. The commission accepted all those
recommendations with no debate.

There was a little argument on how to rank counterfeiting currency as a crime. Minnesota
Statutes 609.632 went into effect in 2006 and was then left unranked, possibly because the
crime was considered rare.

However, Nate Reitz, the commission’s executive director, said that 23 such cases were
sentenced in 2017. “This crime happens more than you’d think,” he said.

It carries a maximum of 20 years in prison for “uttering or possessing” forged currency

valued at more than $35,000. The same crime has a maximum 10-year sentence for having
$5,000 worth of fake currency and a 5-year maximum sentence for fake currency of more
than $1,000 but less than $5,000. Anything under that is a gross misdemeanor unless it is a
repeat offense.

Dietzen suggested the $35,000 crime should be ranked at severity level “5 or 6.” He also
suggested severity level 3 for the $5,000 to $35,000 crime and severity level 2 for the felony
under $5,000.

Schellhas said severity level 6 was more appropriate, given the ranking given to the wage-
theft crime earlier in the hearing. “I think that this is, frankly, more serious than that,” she
said. She agreed with Dietzen on the other rankings.

After a short debate, the commission unanimously sided with Schellhas and all three
rankings were adopted.

All Thursday’s votes represent only tentative approval.

The commission’s next hearing will be on July 18. That will be a public hearing during which
commissioners will take public input on its decisions.

It will meet again on July 25. At that hearing, it will formally vote on the severity rankings
discussed during the year’s first two meetings. If they are again approved, all go will into
effect on Aug. 1, for crimes committed on or after that date.
 ABOUT KEVIN FEATHERLY
Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former
freelance writer who has covered politics, law, business, technology and popular 
culture for publications and websites in the Twin Cities and nationally since the mid-
1990s.

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