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State v. Prater4/4/2003
Affirmed.
The issues of this case arise from the unusual interplay between two cases in which Charles Prater was the defendant. The facts leading to his conviction in either case do not weigh very heavily in the determination of this appeal.
In 1997 Prater was convicted by a jury of aggravated arson and assault on a law enforcement officer. His presentence investigation (PSI) report showed a criminal history score of B. Prater objected, arguing that he was uncounseled on three of his five previous person misdemeanor convictions; hence, they were not eligible for aggregation to a person felony. The State then stipulated to a criminal history score of C and Prater was granted a downward departure sentence of 36 months.
Prater appealed and a panel of this court, citing lack of evidence, reversed his aggravated arson conviction and remanded to the district court with orders to enter a new conviction for attempted aggravated arson. State v. Prater, No. 81,710 unpublished opinion filed November 19, 1999.
The mandate was issued on February 16, 2000, and was received by the clerk of the court in Dickinson County on February 18, 2000. No action was taken to resentence Prater until he was involved in another incident with the police later that year.
On December 18, 2000, Prater entered a plea of nolo contendere and was found guilty of two counts of aggravated assault on a law enforcement officer, one count of reckless driving, and one count of misdemeanor DUI.
Prater's PSI report was filed on February 20, 2001, assigning a criminal history score of A. His 1997 convictions were included in his criminal history score.
Prater immediately moved to withdraw his nolo contendere plea in the 2000 offenses. He also moved for dispositional and durational departures. At a hearing on both motions, Prater's attorney explained to the court that Prater had not been notified of the decision of the Court of Appeals regarding his 1997 convictions and did not realize the convictions for the 1997 offenses would be used against him in his criminal history score. The judge dismissed his argument and ruled that even if Prater had not known the status of his previous appeal, that fact would not be enough to merit the withdrawal of his plea.
On February 28, 2001, the State filed a motion to enter a new judgment of conviction and resentencing for Prater's 1997 offenses.
Prater's sentencing for the 2000 offenses was held on March 14, 2001. The court rejected Prater's request for durational and dispositional departures and sentenced him to 43 months in prison. Prater argued that several of his older misdemeanor convictions should not have been included in his PSI report because the State had stipulated to excluding them at the original sentencing for his 1997 offenses. The argument was rejected by the court. Three of Prater's five previous person misdemeanors were converted into a person felony, elevating his criminal history score. The judge ordered the revision of Prater's PSI report to reflect the Court of Appeals' reversal of his aggravated arson conviction. Although the district court had not entered a new conviction against Prater for the 1997 attempted aggravated arson, it was inserted into his PSI report and used to compute his criminal history score of A. Prater appealed his conviction and sentence for the 2000 offenses to this court.
The district court entered a new judgment against Prater for attempted aggravated arson for the 1997 offense on May 17, 2001. Prater's PSI report included a criminal history score of A.
Prater objected to his assigned criminal history score and argued successfull
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