author: PAGE, Justice. HANSON, Justice, ANDERSON, PAUL H., Justice MEYER, Justice

text:
    STATE of Minnesota, Respondent, v. Tyree Leland JACKSON, Appellant.
    No. A05-66.
    Supreme Court of Minnesota.
    June 1, 2006.

      Hanson, J., concurred in the result with opinion in which Meyer and Paul H. Anderson, JJ., concurred.

      John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

PAGE, Justice.

A Hennepin County grand jury indicted appellant Tyree Leland Jackson for first-degree murder for the benefit of a gang, first-degree premeditated murder, second-degree murder for the benefit of a gang, and second-degree intentional murder for the death of Thomas Olson. Jackson initially pleaded guilty to second-degree murder for the benefit of a gang and was later permitted to withdraw his guilty plea. After a trial, a Hennepin County jury returned guilty verdicts for aiding and abetting first-degree premeditated murder, aiding and abetting second-degree intentional murder, and aiding and abetting second-degree intentional murder for the benefit of a gang. The jury returned a verdict of not guilty for aiding and abetting first-degree premeditated murder for the benefit of a gang. Jackson was sentenced to life imprisonment for first-degree premeditated murder.

On appeal, Jackson raises five issues: (1) whether the prosecutor engaged in misconduct by eliciting inadmissible and prejudicial gang expert testimony; (2) whether the prosecutor engaged in misconduct by vouching for the state’s witnesses and improperly injecting race into the closing argument; (3) whether the trial court erred when it submitted to the jury a special interrogatory regarding an aggravating factor for sentencing purposes; (4) whether he was denied his right to effective assistance of counsel; and (5) whether the cumulative effect of these alleged errors denied him a fair trial. We affirm.

On May 16, 2003, the victim, Thomas Olson, attended a party at 4725 Elliot Avenue in South Minneapolis with three of his friends, Roberto Aspholm, John Bobo, and Abdul Omari. The four drove to the party in two cars, with Bobo and Omari in Om-ari’s car, and Aspholm and Olson in Olson’s car. Arriving at approximately 10:30 p.m., they walked to the back porch of 4725 Elliot Avenue and entered the house.

Appellant Jackson and several of his friends attended the same party. The night of the party, Michael Earl McCaskel picked up Jackson, Alaiena Charlton, Alon-na Charlton, and Nakeisha Ferguson and drove them to the party in his Bronco. Witnesses testified that all of these individuals were associated with the Bloods gang. On the way to the party, McCaskel stopped to pick up Martise Bowie, who was also associated with the Bloods. At Bowie’s request, McCaskel made another stop at an alley near 38th Street and Chicago Avenue so Bowie could retrieve a gun. Alonna Charlton identified the gun as a “38 Western Silver” revolver.

Upon arriving at the party, Olson, Om-ari, Aspholm, and Bobo went downstairs to the basement where music was playing and people were dancing. Bobo recognized a few people at the party, including Stephens Wilburn, the Charlton sisters, and Ferguson, all of whom he believed were associated with the Bloods. Aspholm also observed that there were a number of gang members at the party. Omari, As-pholm, and Bobo testified that the three of them and Olson were not gang members.

After a few minutes in the basement, Omari, Olson, Bobo, and Aspholm went back upstairs. Once upstairs, they saw a fight break out. The Charlton sisters, members of a rival gang, and others were involved in the fight. Bobo, Olson, Omari, and Aspholm did not participate in the fight.

When the fight broke up, Bobo, Olson, Omari, and Aspholm attempted to leave the party. As they were doing so, Omari got into a confrontation with Jackson, which began when Jackson “grabbed [Om-ari’s] pockets” as though he were going to rob Omari. Bobo stepped between Omari and Jackson and told Jackson that Omari was not looking for trouble. Jackson responded, “F that,, this Blood gang” and then swung at Omari. At that point, several bystanders joined the ensuing fight. During this fight, Olson was knocked down and, according to Alaiena Charlton, at some point the focus of the fight appeared to center on an effort to beat up Olson. Bobo testified that he thought Olson was targeted because he “didn’t look like he fit in.”

Bobo, Omari, and Aspholm extricated themselves from the fight and left the house. On their way out, Bobo and Omari saw a man wearing a black hooded sweatshirt standing near the door holding a 9-millimeter gun. Not noticing the gun, As-pholm punched the person holding the gun, and the three ran out of the house.

Once outside, Omari, Bobo, and Aspholm ran to Bobo’s and Olson’s ears. When they got to the cars, they realized that Olson was not with them and returned to the house to look for him. They ran in the front door, through the house, and out the back door. In the backyard, Omari stopped to look for his cell phone, which he had lost. As Bobo and Aspholm left the house and ran towards the front yard, they saw Olson running away from the house with two people chasing him. When Bobo and Aspholm caught up to Olson, the two people chasing him ran off. Both Charlton sisters identified Jackson as one of the two people chasing Olson. Alonna Charlton testified that Olson was pleading with Jackson to be left alone.

Olson and Aspholm got into Olson’s car. As Olson drove away, heading south on Elliot Avenue, gunshots were fired at the car. Aspholm turned and saw a black male approximately six feet tall with a “light to medium complexion” wearing a black hooded sweatshirt shooting at the car. A single gunshot struck Olson in the head, and he slumped over the wheel. Olson died about five days later.

The police investigation of the shooting-revealed that at least five shots were fired from two different guns, one a Colt .32 semi-automatic pistol and the other either a .38 revolver, a .357 revolver, or a 9-millimeter semi-automatic. Police concluded that either the .38 revolver, the .357 revolver, or the 9-millimeter semi-automatic inflicted the fatal wound.

A grand jury indicted Jackson for first-degree premeditated murder for the benefit of a gang, first-degree premeditated murder, second-degree intentional murder for the benefit of a gang, and second-degree intentional murder. After the indictment, Jackson pleaded g-uilty to second-degree murder for the benefit of a gang, but was subsequently permitted to withdraw his guilty plea based on his claim that he was not guilty and had been induced to enter the plea out of fear of receiving a life sentence at trial.

At trial, the state called the Charlton sisters, Wilburn, McCaskel, Omari, Bobo, Aspholm, and several police officers who worked on the case to testify. The state also called Ramsey County Deputy Sheriff Paul Meskan, a member of the Minnesota Gang Strike Force, as an expert witness on gangs. Jackson did not testify and did not call any witnesses in his defense.

At trial, Bobo, Alaiena Charlton, and Alonna Charlton each identified Jackson as one of the two people who shot at Olson’s car, though their stories regarding the details of the shooting varied somewhat. The other person identified as a shooter was Bowie. The Charlton sisters’ testimony was part of a plea agreement with the state stemming from assault charges that arose out of their part in the first fight at the party. They both testified that they were near McCaskel’s Bronco when they saw Jackson, who was standing next to the Bronco, pull out a gun and shoot several times at Olson’s car as it drove past. After Jackson fired his gun, Alaiena Charlton heard a window break and then a car crash. Both Charlton sisters further testified that Bowie, who was also standing next to the Bronco, fired his gun at Olson’s ear after Jackson finished shooting. Though McCaskel too was near the Bronco at the time of the shooting, he testified that he did not see the shooters. However, McCaskel stated that Jackson later told him that Jackson had “-unloaded” on 01-sofi’s car.

After the shooting, Jackson, the Charl-ton sisters, McCaskel, and Bowie drove off in McCaskel’s Bronco. Soon after driving away, McCaskel stopped the Bronco, and Wilburn came up to the Bronco on foot. Bowie passed a gun from the Bronco to Wilburn, and Wilburn later dumped the gun in a trash can. Alonna Charlton identified the gun as the .38 revolver she had seen Bowie with earlier. Jackson had a second gun in the Bronco, which he did not give to Wilburn. Alaiena Charlton testified that McCaskel attempted to return to the party house after the shooting to pick up another person, but that Jackson opposed the idea, saying, “Don’t go back there and try to have me in jail. I just got done shooting.”

The Charlton sisters’ trial testimony implicating Jackson in the shooting contradicted their initial statements to police in which Alaiena Charlton stated that she did not know who the shooters were, and Alon-na Charlton identified people other than Jackson and Bowie as the shooters. At trial, the sisters testified that they lied initially because they were afraid of reprisals from gang members.

Bobo testified that he was standing near Omari’s car when he heard someone scream “Martise, no” and saw an individual running and firing a gun at Olson’s car. Bobo then saw a second person, whom he later identified as Jackson, step off the sidewalk approximately seven or eight feet from Olson’s car and shoot into the car. After the shooting, Bobo observed one of the shooters getting into a Bronco but did not see where, the other shooter went.

In his testimony, Meskan, the state’s gang expert, discussed the Bloods gang generally, describing their territory and identifying hand signs and colors. He testified that the primary purpose of the Bloods gang is “to conduct criminal activities” and described the types of crimes that Bloods members commit. In addition, Meskan testified about the roles of respect and intimidation in Bloods culture. He explained that Bloods members earn respect within the gang by. committing crimes.

Meskan testified that, in his opinion, Olson Was “murdered for the sake of the Bloods, [for] showing disrespect.” He stated that a person who is not a gang member and who “shows up some place where there is all gang members there” and appears unwilling to fight would be viewed as showing disrespect to the gang. In addition, Meskan testified that Jackson, the Charlton sisters, Wilburn, McCaskel, Ferguson, and Bowie were all associated with the Bloods gang. Jackson’s counsel did not object to any of this testimony.

On cross-examination, Jackson’s counsel questioned Meskan at length regarding the basis for his conclusion about Jackson’s gang membership, eliciting testimony about the ten criteria used' by the Minnesota Gang Strike Force to determine gang affiliation and that Jackson met three of the ten criteria, qualifying him as a gang member. On redirect, the state elicited additional details regarding the ten criteria.

As part of the verdict forms given to the jury, the district court included a special interrogatory regarding an aggravating factor to be used for sentencing purposes. The special interrogatory read, “Did the state prove beyond a reasonable doubt that the defendant or co-defendant posed a great danger to the safety of people other than Thomas Olson?” The interrogatory was included on the “verdict of guilty” forms for each crime charged. The jury answered the interrogatory in the affirmative for the three counts of which the jury found Jackson guilty. Jackson’s counsel did not object to the special interrogatory.

I.

We first address Jackson’s contention that the state committed misconduct when it introduced Meskan’s testimony about gang culture and Jackson’s gang membership because the testimony was inadmissible, prejudicial, cumulative, and unhelpful. Jackson also challenges the state’s introduction of Meskan’s opinion on the ultimate issue of whether Olson’s murder was committed for the benefit of a gang. Jackson further argues that Meskan’s testimony was improper because it was based on hearsay.

In response, the state argues that Jackson has waived any objection to Meskan’s testimony by failing to object to it at trial and that, even if not waived, the alleged error does not satisfy the plain error standard. The state contends that Meskan’s testimony was admissible because it was helpful to the jury in deciding an element of the crime charged- — whether Olson’s murder was for the benefit of a gang. The state further argues that Meskan’s testimony was necessary and was not unduly inflammatory.

At trial, Jackson did not object to the introduction of any of the now-complained-of testimony by Meskan. While failure to object to the admission of evidence generally constitutes a waiver of the right to appeal on that basis, this court has discretion to consider an error not objected to at trial if it is plain error affecting substantial rights. State v. Taylor, 650 N.W.2d 190, 205 (Minn.2002); State v. Griller, 583 N.W.2d 736, 740, 742 (Minn. 1998). We apply a three-prong test when making a plain error determination: “before an appellate court reviews an unob-jected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” Griller, 583 N.W.2d at 740. To satisfy the second prong, the error must be plain at the time of the appeal. State v. Ihle, 640 N.W.2d 910, 917 (Minn.2002). An error is “plain” if it is clear or obvious. Id. The third prong of the test is satisfied if “the error was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 744. Error is prejudicial if there is a “ ‘reasonable likelihood’ ” that the error “ ‘had a significant effect’ ” on the jury’s verdict. Id. (quoting State v. Glidden, 455 N.W.2d 744, 747 (Minn.1990)). If any prong of the test is not met, the claim fails. See id. at 740. If the three prongs of the plain error test are met, “the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.” Id. A court will correct the error “only if the fairness, integrity, or public reputation of the judicial proceeding is seriously affected.” State v. Morton, 701 N.W.2d 225, 234 (Minn.2005).

It is improper for a prosecutor to intentionally elicit inadmissible and highly prejudicial testimony. State v. Henderson, 620 N.W.2d 688, 702 (Minn.2001). Under Minn. R. Evid. 702, expert testimony is admissible if it will assist the jury in evaluating evidence or resolving factual issues. Further, Minn. R. Evid. 704 permits opinion testimony as to ultimate issues. Nonetheless, Minn. R. Evid. 403 provides that otherwise admissible evidence should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

We have addressed the issue of gang expert testimony in three recent cases. State v. Blanche, 696 N.W.2d 351 (Minn.2005); State v. DeShay, 669 N.W.2d 878 (Minn.2003); State v. Lopez-Rios, 669 N.W.2d 603 (Minn.2003). In these cases, we expressed concern that expert testimony regarding gang activity often is neither helpful nor necessary and can be highly prejudicial, due to the potential for experts to unduly influence the jury. Blanche, 696 N.W.2d at 374; DeShay, 669 N.W.2d at 886; Lopez-Rios, 669 N.W.2d at 612-13. Further, expert testimony regarding gang activity unrelated to the specific crime with which a defendant is charged “places the defendant in the position of defending allegedly criminal activities of others.” DeShay, 669 N.W.2d at 887. Thus, we have observed that the mere fact that criminal gang involvement is an element of the crime charged does not open the door to unlimited expert testimony about gangs. Id. at 886. To be admissible, gang expert testimony “must add precision or depth to the jury’s ability to reach conclusions about matters that are not within its experience.” Id. at 888. Despite our concerns, however, we have never categorically prohibited the use of gang expert testimony. See id. at 886.

To address some of our concerns with gang expert testimony, we recommended that firsthand-knowledge testimony be used to prove the “for the benefit of a gang” element when feasible. See id. In such situations, expert testimony that is largely duplicative of firsthand knowledge testimony should be avoided. See Lopez-Rios, 669 N.W.2d at 612. In addition, while Minn. R. Evid. 704 does permit opinion testimony as to ultimate issues, we have expressed our disapproval of the use of expert testimony to prove by opinion the gang membership of a defendant. Lopez-Rios, 669 N.W.2d at 612-13. Thus, expert testimony may be excluded when it “would merely tell the jury what result to reach.” Id. at 613. Further, as to hearsay, we have cautioned against the use of gang expert testimony that is based largely on hearsay. See DeShay, 669 N.W.2d at 886 (“[T]he state should not be permitted to launder inadmissible hearsay evidence, turning it into admissible evidence by the simple expedient of passing it through the conduit of purportedly ‘expert opinion.’ ”).

In Blanche; DeShay, and Lopez-Rios, we concluded that, while the admission of some portions of the gang expert testimony was error, the error in each case was harmless because it did not substantially influence the jury’s decision. Blanche, 696 N.W.2d at 374; DeShay, 669 N.W.2d at 888; Lopez-Rios, 669 N.W.2d at 613. In each case, multiple witnesses with firsthand knowledge testified that the defendant was a gang member and that the crime charged was related to gang activities, adequately establishing the gang connection even without the expert testimony. Blanche, 696 N.W.2d at 374; DeShay, 669 N.W.2d at 888; Lopez-Rios, 669 N.W.2d at 613.

Jackson was indicted for first-degree murder for the benefit of a gang, among other offenses. To prove that Olson’s murder was “for the benefit of a gang,” the state had to establish that the Bloods gang satisfies the statutory definition of a criminal gang and that Olson’s murder was committed “for the benefit of, at the direction of, in association with, or motivated by involvement with [the Bloods gang], with the intent to promote, further, or assist in criminal conduct by gang members.” Minn.Stat. § 609.229 (2004). Section 609.229 defines a “criminal gang” as

any ongoing organization, association, or group of three or more persons * * * that: (1) has, as one of its primary activities, the commission of one or more of the offenses listed in section 609.11, subdivision 9 [including, inter alia, murder, assault, burglary, kidnapping, manslaughter, robbery, and drive-by shooting]; (2) has a common name or common identifying sign or symbol; and (3) includes members who individually or collectively engage in or have engaged in a pattern of criminal activity.

Meskan, the state’s gang expert, testified about the Bloods gang generally, discussing the gang’s identifying hand signs and colors and the criminal activities in which Bloods gang members' are involved. Meskan also testified about the role of respect in Bloods culture. In addition, Meskan stated that Jackson was associated with the Bloods gang and that, in his opinion, Olson was “murdered for the sake of the Bloods, [for] showing disrespect.”

On cross-examination, Jackson’s counsel questioned Meskan regarding the basis for his conclusion about Jackson’s gang membership, eliciting testimony about the ten criteria used by the Minnesota Gang Strike Force to determine gang affiliation. Meskan’s testimony on cross-examination revealed that he based his conclusion about Jackson’s gang membership largely on statements made to police by Bobo and the Charlton sisters in which they identified Jackson as a Bloods member.

Meskan’s testimony about the general criminal activities of Bloods gang members was admissible because it' assisted the jury in deciding whether the commission of crimes is one of the primary activities of the Bloods gang, a prerequisite for proving that the Bloods gang meets the statutory definition of a “criminal gang.” Minn.Stat. § 609.229. This testimony was necessary to establish that Olson’s murder was “for the benefit of a gang.” See MinmStat. § 609.229. Mes-kan’s testimony on this point was not needlessly cumulative because only two other witnesses — the Charlton sisters— testified about the criminal activities of the Bloods, and both did so with little precision.

Meskan’s testimony about the role of respect in gang culture was also helpful to establish the “for the benefit of a gang” element and to explain the state’s theory of motive. Although motive is not a required element of first-degree murder, the state may prove that a crime was committed “for the benefit of a gang” by showing that the crime was “motivated by involvement with a criminal gang,” rendering evidence of motive critical to the state’s case. Minn.Stat. § 609.229, subd. 2. Because jurors are unlikely to be familiar with gang culture, Meskan’s testimony provided useful context for the state’s theory as to why Jackson would attack a person who was seeking to avoid a fight. In addition, Mes-kan’s testimony about gang culture and the Bloods gang was neither belabored nor excessive.

Further, while Meskan’s testimony about gang culture and the Bloods gang may have posed some risk of prejudice, it did not require exclusion under Minn. R. Evid. 403 because it had significant probative value. Most evidence introduced to prove the “for the benefit of a gang” element is likely to be improperly prejudicial to some degree by suggesting guilt based oh gang membership alone. But prohibiting all such evidence would frustrate the legislature’s purpose in enacting section 609.229 by rendering convictions under it nearly impossible "to obtain.

As to the hearsay issue, the state did not actually elicit any hearsay testimony from Meskan. Instead, the hearsay statements complained of by Jackson— statements Meskan testified that the Charlton sisters and Bobo had made to police — were elicited by Jackson’s own counsel on cross-examination. Nonetheless, as noted above, we have cautioned against the use of gang expert testimony that is based largely on hearsay, as was Meskan’s opinion regarding Jackson’s gang membership. See DeShay, 669 N.W.2d at 886. Our concern with laundering hearsay through expert testimony, however, is not implicated in this case because most of the hearsay statements on which Meskan based his opinion were introduced at trial in the form of firsthand witness testimony by the Charlton sisters and Bobo. Thus, Meskan’s testimony about statements that the Charlton sisters and Bobo made to police did not introduce evidence that would not otherwise have come to the jury’s attention.

While it may have been error to introduce certain other portions of Mes-kan’s testimony, particularly portions that were cumulative of firsthand witness testimony and Meskan’s opinion as to the ultimate issue in the case, reversal is not warranted because any such error did not affect Jackson’s substantial rights. As in Blanche; Lopez-Rios, and DeShay, there was ample firsthand-knowledge testimony in this case linking Jackson to the Bloods gang and identifying him as one of the shooters. Alaiena Charlton, Alonna Charl-ton, and McCaskel all testified that Jackson was associated with the Bloods at the time of the shooting. Three witnesses testified that they saw Jackson fire at Olson’s car, and a fourth witness testified that Jackson later admitted to being one of the shooters. In addition, two witnesses testified that Jackson was involved in an altercation with Olson and his friends during which Jackson identified himself with the Bloods gang. Witnesses also testified that Jackson fled the party with other Bloods members after the shooting and gave one of the guns used in the shooting to another gang member for disposal. Further, Alon-na Charlton testified that Jackson and Bowie were chasing Olson shortly before he was killed.

Meskan’s testimony, therefore, simply corroborated the testimony of numerous witnesses and likely was no more influential than much of the other evidence presented linking Jackson to the Bloods and to the shooting. Thus, while Meskan’s testimony may have brought the weight of expert opinion to bear on the gang issues, we conclude that it did not have a significant effect on the jury’s verdict. Thus, any error in the admission of Meskan’s testimony did not affect Jackson’s substantial rights, and Jackson’s claim fails.

II.

Jackson argues that the state committed misconduct in its closing argument by injecting irrelevant racial issues, inviting the jurors to compare their world to the “gang world,” and appealing to the passions and prejudices of the jury. Specifically, Jackson complains of the statement: “Olson in particular was targeted for many reasons. He did not look like the others at the party. He was white. He didn’t dress like them. He was a college student. He didn’t act like them.” In addition, Jackson points to the statement: “The gang world operates under a whole different set of rules.” Jackson also challenges the comments:

This jury must acknowledge and understand how gangs work in order to understand what happened that night to Tom Olson and why he was killed. It’s a safe bet to say that outside of the gang world when a person starts a fight and another person runs away or doesn’t fight back, that person is victorious and the fight ends. But here you have a victim that wanted to be peaceful, who refused to fight back, who wanted to get away. This is the gang world and the Bloods thrive on intimidation and fear. They demand respect.

Jackson asserts that these statements deprived him of a fair trial because they invited the jury to consider improper factors in reaching its verdict. In opposition, the state contends that the statements made in closing argument were proper because they explain the motive for Olson’s murder, a topic suitable for consideration by the jury, and did not unnecessarily inject issues of race.

Because Jackson did not object at trial to the portions of the prosecutor’s closing argument that he now claims constituted misconduct, we again apply the plain error standard of review. See Blanche, 696 N.W.2d at 375. When reviewing claims of prosecutorial misconduct arising out of closing arguments, “we consider the closing argument as a whole rather than focus on particular ‘phrases or remarks that may be taken out of context or given undue prominence.’ ” State v. Johnson, 616 N.W.2d 720, 728 (Minn.2000) (quoting State v. Walsh, 495 N.W.2d 602, 607 (Minn.1993)).

It is improper for a prosecutor to appeal to the passions and prejudices of the jury or otherwise seek to distract the jury from its proper role of deciding whether the state has met its burden of proof. Morton, 701 N.W.2d at 236; State v. Ashby, 567 N.W.2d 21, 27 (Minn.1997). “When credibility is a central issue, we pay special attention to statements that may inflame or prejudice the jury.” Morton, 701 N.W.2d at 236. In particular, we have repeatedly noted that “it is improper to inject race into a closing argument when race is not relevant.” State v. Cabrera, 700 N.W.2d 469, 474 (Minn.2005); see also State v. Clifton, 701 N.W.2d 793, 800 (Minn.2005); State v. Ray, 659 N.W.2d 736, 747 (Minn.2003). “In cases where race should be irrelevant, racial * * * considerations, in particular, can affect a juror’s impartiality and must be removed from courtroom proceedings to the fullest extent possible.” Ray, 659 N.W.2d at 747 (quoting State v. Varner, 643 N.W.2d 298, 304 (Minn.2002)); see also Cabrera, 700 N.W.2d at 475.

In State v. Ray, we discussed a prosecutor’s remarks during closing that invited jurors to compare the world of “three young black males in the hood” to the jurors’ world and to wealthier suburban neighborhoods. Ray, 659 N.W.2d at 746 (“This is not a dispute between a businessman or a businesswoman from Edina and another businessman or businesswoman from Minnetonka. This is a dispute * * * involving three young black males in the hood in North Minneapolis. This is not your environment, this is the Defendant’s environment.”). We noted that “[s]uch an invitation asks the jury to apply racial and socio-economic considerations that would deny a defendant a fair trial.” Id. at 747. We concluded that these comments constituted prosecutorial misconduct, but did not decide whether they alone would have warranted reversal because other independent grounds for reversal existed. See id. at 746 n. 3, 747.

In contrast, we have held that a prosecutor’s statement observing that a defendant is not from the same world as the jurors and distinguishing the defendant from “a businessman from Edina, Pope John Paul and Mother Teresa” was not misconduct. State v. Robinson, 604 N.W.2d 355, 363 (Minn.2000). In Robinson, we concluded that “these comments did little more than prepare the jury for evidence of an unfamiliar world involving drugs.” Id.

More recently, we addressed lengthy remarks made in the state’s closing argument that called on the jury to consider “how different your lives may be from the lives and lifestyles of many of the people who testified before you and from the victim.” Clifton, 701 N.W.2d at 799. In Clifton, we concluded that the prosecutor’s remarks were misconduct because they “were demeaning” and “came close to appealing to passion and prejudice.” Id. at 800. As in Ray, the improper statements in Clifton invited “ ‘jurors to view a defendant as coming from a different community than themselves.’ ” Id. (quoting Ray, 659 N.W.2d at 747). However, in Clifton we determined that a new trial was not warranted because, “unlike Ray, there was no explicit reference to race or use of race to disparage the defendant.” Clifton, 701 N.W.2d at 800.

Here, the statements challenged by Jackson did not constitute misconduct. The prosecutor’s remarks about the “gang world” simply served to introduce the state’s argument regarding the role respect played in the motive for Olson’s murder. As with the drug world in Robinson, the roles of respect and reprisal in gang culture may be unfamiliar to the average juror. The prosecutor’s comments were directed at explaining Jackson’s seemingly inexplicable response to Olson’s refusal to fight. A juror may not have understood why someone like Olson, who was attempting to flee a conflict with gang members, would nonetheless be shot and killed. Further, and importantly, the prosecutor in this case did not urge the jurors to compare their world to that of the defendant.

Moreover, as in Clifton, race was not used to disparage the defendant. The sole reference to race in the state’s closing argument was the comment that Olson was white. Olson’s race was listed as just one of the many reasons why he was targeted at the party, bolstering the state’s theory of motive. This statement was supported by the evidence admitted at trial. Bobo testified that people involved in the second fight at the party focused on Olson because “he was the person that was there that didn’t look like he fit in.” The state’s comments regarding Olson’s characteristics — including his race — merely served to explain this testimony. In addition, Alaie-na Charlton mentioned Olson’s race during her testimony, referring to him as the “white boy.” Further, Aspholm testified that the party was, for the most part, “an all-black party.” Given this context, it is unlikely that the state’s single comment about Olson’s race, accompanied by a list of other characteristics, inflamed the prejudices of the jury or distracted it from its proper role. Thus, we hold that the state’s reference to Olson’s race was not misconduct.

Jackson also argues that the state improperly vouched for its witnesses during closing argument. Jackson contends that the state’s comments about the Charlton sisters’ fear of reprisal for “snitching” constituted vouching. Jackson specifically points to the statements:

You must ask yourselves what had Alaiena Charlton and Alonna Charlton or even Michael McCaskel or Stephens Wilburn to gain by testifying here. They know what a snitch is. They know what happens to snitches. They know how blood [sic] gang members deal with snitches. * * * Make no mistake, members of the jury, what interest do they have in the outcome of this case? By testifying they have absolutely nothing to gain.

Jackson also takes issue with the prosecutor’s statement in closing: “Members of the jury, do you think the police are so naive or so stupid that if they had evidence against McCaskel to charge him in a murder that they would let him walk? There’s no evidence that McCaskel was the shooter.” Jackson claims that this statement constituted vouching. Jackson argues that these comments, taken together, prejudiced his case by diverting the jury’s attention from its proper role.

A prosecutor may not personally endorse the credibility of a witness or impliedly guarantee a witness’s truthfulness. See State v. Patterson, 577 N.W.2d 494, 497-98 (Minn.1998); State v. Porter, 526 N.W.2d 359, 364 (Minn.1995). In closing argument, however, the state may argue that certain witnesses were or were not credible. Lopez-Rios, 669 N.W.2d at 614.

The prosecutor’s comments that the Charlton sisters had nothing to gain, and something to lose, by testifying against Jackson did not rise to the level of vouching and thus were not misconduct. These comments simply noted the sisters’ lack of bias by observing that their testimony was not self-serving. They also served to explain the inconsistencies between the Charlton sisters’ initial statements to police and their trial testimony, something that Jackson’s trial counsel emphasized in closing argument. Further, the prosecutor never implied that Jackson was responsible for the Charlton sisters’ fear or that Jackson himself had made any threats against them. Consequently, we hold that the prosecutor did not engage in impermissible vouching.

Jackson’s claim that it was misconduct for the state to comment that the police were not so stupid as to let McCask-el go free if they had evidence against him also fails. This statement was not vouching because it did not purport to guarantee the credibility of a witness. See Lopez-Rios, 669 N.W.2d at 614. Instead, the statement merely sought to refute defense counsel’s suggestion that McCaskel, rather than Jackson, may have been one of the shooters, a subject proper for consideration by the jury.

III.

In response to Blakely v. Washington, which was decided by the United States Supreme Court in June 2004, the district court in this case submitted a special interrogatory to the jury requesting that the jury determine whether a particular aggravating factor was present. See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (holding that an upward departure from a presumptive guidelines sentence may not be based on judicial findings of fact). The district court intended to use the aggravating factor in sentencing Jackson if he were sentenced pursuant to the Minnesota Sentencing Guidelines.

On appeal, Jackson argues that because Minn.Stat. § 244.10 (2004) and Minn. Sent. Guidelines II.D. require a judge to make the fact findings necessary for upward departures in sentencing, the district court cannot authorize a jury to make such findings. The state disagrees, arguing that, because Minnesota courts have inherent authority over matters of court procedure, it was proper for the district court to fashion a procedure to implement the Blakely decision.

Jackson failed to object to the use of the special interrogatory. Therefore, we review his claim under the plain error standard. See Blanche, 696 N.W.2d at 377. Because we conclude that Jackson cannot establish that the alleged error affected his substantial rights, we need not decide whether the trial court’s use of the special interrogatory constituted error that was plain.

The trial court’s use of the special interrogatory to have the jury find the aggravating factor did not affect Jackson’s substantial rights because, in the end, Jackson was not sentenced under the sentencing guidelines. The sentence for first-degree premeditated murder is not determined using the sentencing guidelines. Rather, Minn.Stat. § 609.185 (2004) provides a mandatory sentence of life imprisonment for first-degree murder. Therefore, the aggravating factor was not used to make an upward departure in Jackson’s sentence.

Nor is there any evidence that the special interrogatory distracted the jury from its role of analyzing the elements of the crimes charged. The district court judge properly instructed the jury on the elements of each of the crimes charged and the state’s burden of proof. The fact that the jury, during its deliberations, sought clarification of the difference between “premeditated” and “intentional” indicates that the jury was carrying out its duty to evaluate the elements of the crimes charged. Further, the jury did not find Jackson guilty on all counts, despite the fact that the aggravating factor was included on the verdict form for each count, suggesting that the jury was not unduly swayed by the presence of the interrogatory. Finally, the aggravating factor submitted to the jury — whether Jackson posed a great danger to the safety of people other than Olson — did not expose the jury to evidence that was not otherwise properly before it. Because the use of the special interrogatory did not affect Jackson’s substantial rights, we hold that Jackson is not entitled to a new trial on that ground.

IV.

Jackson also argues that he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel failed to object to repeated instances of prosecutorial misconduct and to the use of the special interrogatory. Jackson contends that an objectively reasonable attorney would have been familiar with DeShay; Lopez-Rios, and Ray and consequently would have objected to the inadmissible gang expert testimony and the prejudicial closing argument. Jackson further argues that it is reasonably probable that he would have been convicted only of second-degree murder or would have been acquitted altogether had his counsel made proper objections. In opposition, the state claims that Jackson’s counsel’s failure to object was a strategic decision and that Jackson has failed to meet his burden of proof on his ineffective-assistance-of-counsel claim.

In order to demonstrate ineffective assistance of counsel, an appellant must show that the representation “ ‘fell below an objective standard of reasonableness’ ” (performance prong) and that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’ ” (prejudice prong). State v. Martin, 695 N.W.2d 578, 587 (Minn.2005) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “A reasonable probability is ‘a probability sufficient to undermine confidence in the outcome.’ ” Id. (quoting State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986)). There is a “strong presumption that counsel’s performance was reasonable.” Id. “The appellant bears the burden of proof on an ineffective assistance of counsel claim.” State v. Miller, 666 N.W.2d 703, 716 (Minn.2003). A court may address the two prongs of the test in any order and may dispose of the claim on one prong without analyzing the other. See State v. Rhodes, 657 N.W.2d 823, 842 (Minn.2003).

Here, having already concluded that Jackson’s prosecutorial-misconduct claims fail because the alleged misconduct did not in fact constitute misconduct, or, to the extent that misconduct did occur, it did not result in prejudice to Jackson, we conclude that Jackson cannot satisfy the prejudice prong of Strickland. Therefore, his ineffective-assistance-of-counsel claims related to prosecutorial misconduct fail. Further, we have already determined that the use of the special interrogatory did not result in prejudice to Jackson. Consequently, his ineffective-assistance-of-counsel claim related to the use of the special interrogatory also fails on the prejudice prong.

V.

Finally, Jackson argues that the cumulative effect of the alleged errors deprived him of his due-process right to a fair trial by distracting the jury from its proper role. Jackson contends that absent the complained-of errors “the jury may have reached a different verdict.” An appellant is “entitled to a new trial if the errors, when taken cumulatively, had the effect of denying appellant a fair trial.” State v. Keeton, 589 N.W.2d 85, 91 (Minn. 1998). Having carefully reviewed the record, we are satisfied that, to the extent any errors occurred in this case, Jackson was not denied the right to a fair trial.

Affirmed.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

HANSON, Justice,

concurring.

Although I concur in the affirmance of Jackson’s conviction, I write separately because I would reach that result by different means.

As to the gang expert testimony, Jackson curiously did not argue that the district court erred in admitting the testimony, but only that the state committed prosecutorial misconduct by offering it. By limiting his argument in this way, Jackson has imposed on himself a higher threshold than plain error. In addition to showing that the evidence was plainly inadmissible and sufficiently prejudicial to affect his substantial rights, Jackson must also show that the state had no good-faith basis to argue for admissibility and elicited the testimony knowing that it was inadmissible. See State v. White, 295 Minn. 217, 223, 203 N.W.2d 852, 857 (1973). Because our prior decisions do not establish absolutely clear boundaries on gang expert testimony, I conclude that Jackson failed to meet this higher threshold.

If the court, nevertheless, wishes to directly address the admissibility of the gang expert testimony, I would restrict, even further than the majority, the scope of admissible testimony. In fact, I would conclude that virtually none of Officer Meskan’s testimony was admissible because, first, insufficient foundation was laid to qualify Officer Meskan as an expert; second, several of his opinions were based on incompetent, anecdotal evidence; and third, the effect of his testimony was to supply character evidence that is prohibited by Minn. R. Evid. 404(a) or other crimes evidence that does not meet the requirements of Minn. R. Evid. 404(b). The more difficult question is whether we should exercise our discretion to apply a plain error test. My review of the record suggests that Jackson’s counsel was pursuing a strategy to capitalize on the gang-expert testimony. Not only did he not object to a single question in the extended examination of Officer Meskan, he engaged the officer in a detailed cross-examination about the gang criteria, apparently believing that the officer’s analysis was weak and could be exploited for Jackson’s benefit. I would decline to apply the plain error test to a situation where, as here, counsel deliberately forgoes an objection and then affirmatively develops and expands the evidence on cross-examination.

Finally, because I question the wisdom of defense counsel’s strategy in dealing with gang testimony, I would focus the ineffective assistance of counsel claim somewhat differently. For me, the question is whether defense counsel’s strategy, to not object to gang expert testimony and then to attempt to capitalize on it on cross-examination, was a reasonable strategy or was one that Jackson acquiesced in. See, e.g., State v. Jorgensen, 660 N.W.2d 127, 132-33 (Minn.2003) (rejecting the claim that counsel’s concession of intent to kill, in order to defeat the charge of premeditation, because the defendant acquiesced in the concession). Because I cannot answer these questions from the trial record, I would preserve the issue for review by postconviction petition.

On the scope of permissible gang expert testimony, I conclude that it is time for the court to provide greater supervision on this issue. We have been cautious in examining the first several cases under the “crime committed for the benefit of a gang” law, recognizing that the state may have difficulty proving the gang elements and waiting to see how the state may present its proof. But we have now reviewed enough cases to recognize the serious issues raised by this type of gang expert testimony and we need to both clarify the rules concerning its admissibility and consider mechanisms to mitigate against, any unfair prejudice to the defendant.

It may be true that, under the circumstances of a-given case, it will be difficult to prove that the underlying crime was committed for the benefit of a gang. But I do not find any basis to conclude that the legislature, when it enacted the gang legislation, intended to modify the conventional rules of evidence or otherwise relax the state’s burden of proof. And it must be remembered that any difficulty with the proof of the gang elements does not leave the state without legal recourse because gang involvement is not an independent crime but enhances the penalty for another underlying crime. MinmStat. § 609.229, subds. 3, 4 (2004). Thus, in cases where gang involvement cannot be proven by admissible evidence, the state can still proceed with the prosecution of the underlying crime. In the murder context, this is similar to the situation where the stqte has evidence to prove an intentional killing but not premeditation. The fact that admissible evidence of premeditation cannot be found does not justify the relaxation of the rules of evidence to allow inadmissible evidence.

Under Minn. R. Evid. 702, the threshold question, before getting to whether the testimony will “assist the trier of fact,” is whether the witness qualifies as an expert. The rule requires that the witness be “qualified as an expert by knowledge, skill, experience, training, or education.” I do not doubt that the organization of gang strike forces and the collection of anecdotal information about gangs contributes to the effectiveness of the investigation of gang-related crimes. But I doubt whether the experience gained and the information collected qualifies as “expertise” within the contemplation of Rule 702. My concern is whether the unscientific and unsystematic collection of anecdotal information about gangs can be construed to be “scientific, technical, or other specialized knowledge” that can then be applied as a standard to evaluate the activities of a specific defendant and his or her associates.

This deficiency in Officer Meskan’s testimony is comparable to the deficiency that we recognized in State v. Williams, where we held that “drug courier profiles” that contain an “informally compiled abstract of characteristics thought typical of persons carrying illicit drugs,” do not qualify as “scientific” information for purposes of expert testimony. 525 N.W.2d 538, 545, 547 (Minn.1994) (quoting United States v. Mendenhall, 446 U.S. 544, 547 n. 1, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). We said:

This is not to say that a reasonable and prudent police officer or DEA agent is not free to keep a mental checklist of possibly relevant factors bearing on their important role in intercepting drug couriers. It is simply to say that drug courier profiles are not “scientific” in any sense of the word, that agents may not mechanically rely on them in making investigative decisions affecting the constitutional privacy interests of citizens, and that reviewing courts also must not engage in a mechanistic deference to police testimony that the defendant’s conduct fit some profile.

Id. at 547. I would conclude that a law enforcement officer who specializes in gang investigations cannot thereby bootstrap himself into ' becoming a qualified expert witness on gangs and then be allowed to extrapolate from general and randomly obtained information to interpret the activities of a given defendant.

Further, even if Officer Meskan had qualified as an expert, the data on which he based his opinions was not independently admissible and was not shown to be of a type that could reasonably be relied upon by experts in the field. Although Officer Meskan stated that he has been involved in or reviewed hundreds of investigations of gang activities and interviewed numerous persons about gang activities, there is no way to determine whether the information he collected was accurate or whether it had general applicability to other situations.

Finally, the use of generalized testimony about the activities of gangs has the inevitable effect of being character evidence because it is offered to show not only the propensities of gangs but, by association, the propensities of a defendant who is said to be a gang member. Specifically, the discussion of the range of crimes committed by gangs represents both character evidence that is inadmissible under Rule 404(a) and other crime evidence that is admissible only if it meets the clear and convincing evidence requirement under Rule 404(b). In Williams, we recognized this same deficiency in drug courier profile evidence, quoting these observations by Professor Graham:

Normally proof of character involves witnesses who generalize on the basis of past acts of the defendant and this generalization is used to support an inference as to the conduct in issue. The drug courier profile involves a generalization based on the past acts of third persons. The jury is asked to infer from the fact that the defendant shares some of the characteristics of these third persons that he shares their guilt of drug smuggling.

525 N.W.2d at 547-48 (quoting 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure — Evidence § 5233, at n. 53.2 (Interim ed. 1992 and Supp. 1994)). We determined that the drug courier profile evidence was “clearly and plainly inadmissible.” Id. at 548.

These deficiencies in Officer Meskan’s testimony are most seriously present with respect to his opinions that (1) the purpose of the Bloods gang is to commit crimes; (2) the types of crimes the gang commits include murder, assault, kidnapping, robbery, and weapons offenses; (3) specific members of the Bloods gang have a history of committing these types of crimes; (4) gang members have a need to assert their power and to intimidate others so as to be shown “respect”; (5) guns are reasonably available to gang members, often carried by juvenile gang members; (6) gang members wear black hooded sweatshirts (hood-ies) to conceal their identity and discard them when they have gun residue on them; and (7) the refusal to fight against a gang member is seen as a sign of disrespect for which retaliation is warranted. Further, as acknowledged in the majority opinion, Meskan’s testimony that was cumulative of first-hand witness testimony and that opined on the ultimate issues of Jackson’s motives was inadmissible.

Although the state may view this evidence as being “necessary” to prove that the murder was for the benefit of a gang, such necessity does not make it admissible. Because the legislature expressed no intent to change the rules of evidence concerning proof of gang involvement, I would not conclude that the application of conventional rules of evidence could be seen as frustrating the legislature’s purpose in enacting the gang laws. I conclude that the legislature’s purpose was to discourage gang activities by increasing the punishment for a crime where it could be proven that the crime was committed for the benefit of a gang. Here, as in many cases, the state offered proof through witnesses with first-hand knowledge of Jackson’s involvement with the Bloods and the activities of the Bloods. As we said in State v. DeSh-ay, “[t]his first-hand knowledge testimony is how the state can and should go about proving the essential elements of this crime.” 669 N.W.2d 878, 886 (Minn.2003).

Finally, if the court does not narrow the scope of admissible gang expert testimony as outlined in this concurring opinion, then I suggest that the court, in the exercise of its supervisory powers, specify that, with the consent of the defendant, the charge of first-degree murder for the benefit of a gang be bifurcated for trial from the charge of first-degree premeditated murder, and the charge of second-degree murder for the benefit of a gang be bifurcated for trial from the charge of second-degree intentional murder, in order to prevent the unfair prejudice that the character and other crime aspects of gang evidence may have on the jury’s evaluation of the evidence concerning a defendant’s guilt for the underlying crimes.

ANDERSON, PAUL H., Justice

(concurring).

I join in the concurrence of Justice Hanson.

MEYER, Justice

(concurring).

I join in the concurrence of Justice Hanson. ■

      . While, as noted previously, we have discouraged the use of gang expert testimony and have repeatedly cautioned against improper closing arguments, we emphasize that defense counsel bears the responsibility of timely objecting to such alleged misconduct to give the trial court an opportunity to rectify the error, if any. We are concerned about the motive for defense counsel's failure to object in cases such as this. Defense counsel may not attempt to get two bites at the apple by failing to object at trial and then seeking a new trial based on plain error if the first trial does not produce the desired verdict. See State v. Ray, 659 N.W.2d 736, 747 n. 4 (Minn.2003).


source: Caselaw Access Project

author: MEYER, Justice.

license: Public Domain

text:
    In re the Marriage of Darlene GERBER, Respondent, v. John Truman GERBER, Respondent, and County of Anoka, intervenor, Appellant.
    No. A04-1538.
    Supreme Court of Minnesota.
    June 1, 2006.
    Robert M.A. Johnson, Anoka County Attorney, Bethany A. Fountain Lindberg, Assistant County Attorney, Anoka, MN, for appellant.
    Robert A. Howard, Hicken, Scott & Howard, P.A., Anoka, MN, for respondent John Gerber.
    Mike Hatch, Attorney General, Erika Schneller Sullivan, Patricia Sonnenberg, Assistant Attorneys General, St. Paul, MN, for amicus Minnesota Department of Human Services.
   OPINION

MEYER, Justice.

This case presents the narrow issue of whether the 10-year statute of limitations for an “action” brought on a judgment, Minn.Stat. § 541.04 (2004), applies to a county’s administrative attempt to satisfy a child support obligor’s arrearages through income withholding collection efforts. In 2004 respondent John Gerber (Gerber) filled a motion to prevent appellant Anoka County from continuing to withhold from his income to collect on a 1993 judgment for child support arrearag-es and to seek a refund for all payments made since September 13, 2003. The district court denied the motion because it said income withholding is an administrative remedy that is not affected by the statute of limitations. The court of appeals held that the statute of limitations does apply because administrative income withholding is a judicial remedy, and thus an action under the statute of limitations. Gerber v. Gerber, 694 N.W.2d 573 (Minn. App.2005). We reverse.

Respondents John Gerber and Darlene Gerber (n/k/a Darlene Nelson) were married and had five children. On November 5,1981, Nelson petitioned for dissolution of the marriage. The district court issued an order for temporary relief awarding Nelson temporary custody of the children and “$900 per month or 45% of [Gerber’s] net income for support of the minor children payable through Anoka County Social Services.” The order specified that “[s]upport shall be withheld from [Gerber’s] wages.” A substantially similar provision was included in the court’s February 12, 1982, final judgment of dissolution. The wage withholding clause said “[Gerber’s] employer shall withhold said child support from [Gerber’s] net income and * * * that said withholding [shall] be forwarded directly to Anoka County Social Services which agency shall then forward said support sums to [Nelson].”

On April 19, 1984, the district court amended the judgment to require, inter alia, a flat child support rate of $900 per month because of Nelson’s significantly increased income and consequent decreased need for support. The order restated the income withholding mechanism for satisfying Gerber’s child support obligations as provided in the February 12, 1982, judgment of dissolution. Nelson did not receive any child support payments after this April 19,1984, order.

On November 12,1987, the district court entered a $3,600 judgment against Gerber for child support arrearages that accrued between June 1, 1987, and September 30, 1987. On June 20, 1993, the last child of Gerber and Nelson was emancipated. On September 13, 1993, the court entered a default judgment against Gerber in the amount of $94,850 for past due child support from April 19, 1984, to May 31, 1993. Neither Nelson nor Anoka County took any action to renew the 1993 judgment when it expired on September 13, 2003.

In May of 2001 Anoka County was successful in locating a payor of funds to Gerber, and it initiated an administrative proceeding to withhold from his income. From May 1, 2001, through April 30, 2004, Gerber made 36 consecutive monthly payments on the judgment through income withholding. On May 4, 2004, Gerber made a motion for the court to order (1) that no further actions be taken to collect on the 1993 judgment, and (2) that he be reimbursed “for all payments made since September 13, 2003,” the date he said the judgment expired. Anoka County intervened in the action.

On May 31, 2004, a child support magistrate issued an order denying Gerber’s motion, determining that “[ajutomatic wage withholding is an administrative remedy, not a judicial remedy, that remains in place regardless of the date of the entry of the Judgment and Decree.” The court of appeals reversed, holding “wage withholding is a judicial remedy and not an administrative remedy” and thus is barred by the statute of limitations. Gerber, 694 N.W.2d at 576. The court reasoned that because the law at the time of the 1982 marital dissolution and child support judgment required a court order to authorize income withholding, it is a judicial remedy subject to the 10-year statute of limitations for an action brought on a judgment, Minn.Stat. § 541.04. Gerber, 694 N.W.2d at 576.

Minnesota Statutes § 541.04 provides, “[n]o action shall be maintained upon a judgment oi: decree of a court of the United States, or of any state or territory thereof, unless begun within 10 years after the entry of such judgment.” The issue is whether income withholding is an “action” within the meaning of section 541.04. This is a matter of statutory interpretation that we review de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).

We considered the meaning of an “action” under Minn.Stat. § '541.05 (1974) in Har-Mar, Inc. v. Thorsen & Thorshov, Inc., where a fee dispute arose between a developer and an architectural firm following the construction of a shopping center. 300 Minn. 149, 150, 218 N.W.2d 751, 753 (1974). The architectural firm demanded arbitration to resolve the dispute. Id. at 151, 218 N.W.2d at 753. The developer refused and commenced an action for declaratory and injunctive relief, arguing that the arbitration demand was barred .by Minn.Stat. § 541.05, which requires that an “action” on a contract or other obligation be brought within six years. 300 Minn, at 151-52, 218 N.W.2d at 754.

We recognized that an “action” was intended “both by statutory definition and at common law * * * to be confined to judicial proceedings.” Id. at ■ 153, 218 N.W.2d at 754. We distinguished an arbitration proceeding from a judicial proceeding because “[t]he statutory design of the [Uniform Arbitration Act] * * * is to encourage voluntary, speedy, inexpensive, private,- and final out-of-court arbitration of commercial contractual disputes by commercial experts.” 300 Minn, at 153, 218 N.W.2d at 754. We concluded section “541.05(1) was not intended to bar arbitration of [the architectural firm’s] fee dispute solely because such claim would be barred if asserted in an action in court.” 300 Minn, at 155, 218 N.W.2d at 755; see also Akerson v. Anderson, 202 Minn. 356, 357-58, 278 N.W. 577, 577 (1938) (holding the enforcement of a lien is not an “action” within the meaning of the former version of section 541.05(1)).

The statutes authorizing income withholding as a mechanism for enforcing child support arrearages establish that the remedy is not a judicial proceeding. Unlike other child support collection mechanisms, income withholding can be authorized by an administrative agency to recover child support arrearages with no prior judicial approval. Minn.Stat. § 518.5513, subd. 5(a)(5), (7) (2004); Minn.Stat. § 518.6195 (2004); see also Minn.Stat. § 518.6111, subd. 7(a), (b) (2004) (authorizing administrative income withholding even if the court ignores its obligation to address it in the initial child support order); Minn.Stat. § 518.5513, subd. 5(f) (2004) (characterizing income withholding as an “administrative action”). Also, like arbitration, the purpose of administrative income withholding is to provide an expedited, simple, efficient, and inexpensive way of resolving disputes over child support payments without resort to judicial process. Minn. Gen. R. Prac. 351.02; see also Minn.Stat. §§ 518.5513, 518.6111. Finally, income withholding is even less like a judicial proceeding than arbitration because, unlike arbitration, income withholding does not involve the determination of legal or factual claims by employing procedures similar to judicial proceedings.

Gerber asks this court to classify income withholding as a judicial remedy because in 1982, when the initial child support judgment was entered, a court order was needed to impose income withholding. Gerber points out that section 518.5513 contains no retroactivity clause. But section 518.5513 is not the statute that is directly applicable here because it only addresses administrative income withholding mechanisms for child support payments. Minn.Stat. § 518.5513. Instead, section 518.6195(a) is the relevant statute because it makes all of the collection methods available from section 518.5513, section 518.6111, and all others in chapters 518, 256, 257, and 518C, applicable to the collection of child support arrearages. Minn. Stat. § 518.6195(a). It is Gerber’s arrear-ages upon which the 1993 judgment is based, not the 1982 ordered payments. And section 518.6195(a) “applies retroactively to any support arrearage that accrued on or before [August 1, 1997].” Minn.Stat. § 518.6195(b). Even if the district court had failed to include income withholding in its 1982 judgment as a potential enforcement mechanism, income withholding to enforce the 1993 judgment would still be available to Anoka County without a court order under section 518.6195(a).

Gerber also points out that the legislature has created a simple administrative renewal process to avoid the expiration of child support judgments. See MinmStat. § 548.091, subd. 3b (2004) (providing that child support judgments may be renewed by serving and filing a notice to renew the judgment). He argues that this indicates a legislative intent that the statute of limitations on judgments should be applied to administrative income withholding. We disagree. This section shows nothing more than the legislature recognized that judicial remedies on child support judgments are subject to the statute of limitations, and that there must be an expedited process to avoid its application.

We hold that administrative income withholding initiated by a county to collect child support arrearages is not a judicial proceeding, it is not an “action” within the meaning of Minn.Stat. § 541.04, and thus is not subject to its 10-year limitation period. The decision of the court of appeals is reversed.

Reversed.

      . The 1993 judgment did not incorporate the 1987 judgment. But the 1987 judgment has since been satisfied in full. The 1987 judgment did not reflect the arrearages that accrued between April 19, 1984, and June 1, 1987.

      . Anoka County focuses primarily on federal child support statutes that make income withholding "administrative,” arguing that because states are required to pass similar statutes as a condition to receiving federal grant money, the federal mandate indicates the Minnesota legislature's intent that the statute of limitations not apply to income withholding. We need not resort to federal law because this issue can be resolved under Minnesota case law and statutes. See Minn.Stat. § 645.16 (2004) (only allowing inquiry into legislative intent where the words of the law are ambiguous).

      . Minnesota Statutes § 645.45 (2004) defines "action” as "any proceeding in any court of this state,'.’ but limits its application to statutes enacted after 1941. Because the statute of limitations at issue in Har-Mar existed well before 1941, we noted that the definitional statute was persuasive, not controlling. 300 Minn, at 152, 218 N.W.2d at 754. Similarly, it is not controlling here because section 541.04 existed well before 1941.

      .Other child support arrearages enforcement mechanisms require (1) a motion by the obli-gee to the court; (2) proof of nonpayment in a specified amount; and (3) a court order imposing the• remedy. See, e.g., Minn.Stat. § 518.551, subds. 12 (occupational license suspension), 13 (driver's license suspension), 14 (motor vehicle lien), 15 (2004) (recreational license, permit, and stamp suspension); Minn.Stat. § 548.091, subd. la(b) (2004) (reinstatement of interest on arrearages after court ordered that interest stop accruing); Minn.Stat. § 518.6111, subd. 6(a) (2004) (preauthorization of transfers from obligor's bank account into child support account); Minn.Stat. § 518.616 (2004) (requiring obli-gor to seek employment).

      . The court of appeals relied upon Holmberg v. Holmberg, 588 N.W.2d 720 (Minn.1999) in deciding that wage withholding was a judicial remedy. Holmberg involved the constitutionality of the entire "administrative child support process.” Id. at 721. In this case by contrast, we address only the collection of arrearages, not the process by which those arrearages have been adjudicated. Accordingly, the separation of powers concerns presented in Holmberg are not present here. See State v. Schwartz, 628 N.W.2d 134, 140 (Minn.2001) (distinguishing Holmberg and holding that administrative authority of commissioner of corrections "to control supervised and conditional release revocation [does not] usurp[] and interfere[] with functions of the judiciary”).


author: /s/Helen M. Meyer Associate Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Mark Jonathan PADGETT, a Minnesota Attorney, Registration No. 207962.
    No. A06-930.
    Supreme Court of Minnesota.
    June 2, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Mark Jonathan Padgett committed professional misconduct warranting public discipline, namely, making false timekeeping entries in violation of Minn. R. Prof. Conduct 8.4(c).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand and two years’ unsupervised probation.

The court has independently reviewed the file. While the court agrees that respondent should be placed on probation for the protection of the public, the court concludes that unsupervised probation alone is unlikely to adequately protect the public. The court further concludes that should respondent return to a practice requiring maintenance of time records or billing for legal services, respondent should be placed on supervised probation at that time.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Mark Jonathan Padgett is publicly reprimanded and is placed on unsupervised probation for a period of one year, subject to the following conditions:

a. Respondent is not currently engaged in the private practice of law such that it is necessary for him to maintain time records for billing purposes. If, at any time in the future, respondent engages in the practice of law with a private firm or governmental entity under circumstances such that maintenance of time records for internal or external billing purposes is required, respondent shall be supervised, for a period of two years from the date respondent joins the firm or entity, by another licensed attorney within the firm or governmental entity who shall be responsible for the accuracy of respondent’s billings and work records. Respondent shall notify the Director upon his return to such a practice and shall provide the Director with the name of the attorney within the firm or governmental entity who will serve as respondent’s supervisor. Respondent’s supervisor shall file written reports regarding respondent’s compliance with the terms of his probation with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.

b. If at any time in the future respondent engages in the practice of law as a sole practitioner, respondent shall be supervised, for a period of two years from the date he begins practice as a sole practitioner, by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of probation. Before engaging in practice as a sole practitioner, respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director shall seek to appoint a supervisor. Respondent shall: (1) maintain accurate time and billing records; (2) maintain an accurate calendar of appointments, hearings, conferences, and other events for which he will be claiming attorney fees; and (3) maintain accurate telephone logs detailing the date, time, and duration of telephone conferences. Respondent shall make these records available to his supervisor as requested and shall provide the supervisor with any additional information requested so that the supervisor may confirm the accuracy of respondent’s time records. Until a supervisor has signed a consent to supervise, the respondent shall provide his time and billing records, calendar, and phone log to the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director. Respondent’s supervisor shall file written reports regarding. respondent’s compliance with the terms of his probation with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.

c. Respondent shall cooperate fully with his supervisor and with the Director’s office in their efforts to monitor compliance with his probation. Respondent shall respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the provisions of this order.

d. Respondent shall abide by the Minnesota Rules of Professional Conduct.

e. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: ROSS, Judge.

text:
    STATE of Minnesota, Respondent, v. Brian Lee MALEY, Appellant.
    Nos. A05-782, A05-883.
    Court of Appeals of Minnesota.
    May 9, 2006.

      Mike Hatch, Attorney General, St. Paul, MN and Thomas S. Opheim, Norman County Attorney, Rebecca A. Trapp, Assistant Norman County Attorney, Ada, MN, for respondent.
    John M. Stuart, State Public Defender, F. Richard Gallo, Jr., Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by RANDALL, Presiding Judge; MINGE, Judge; and ROSS, Judge.
   OPINION

ROSS, Judge.

Brian Lee Maley appeals his 54-month prison sentence imposed after he pleaded guilty to a controlled-substance violation. Maley argues that the district court erroneously considered two out-of-state convictions in calculating his criminal-history score. Because the state’s burden to establish a sufficient factual basis for the challenged convictions was neither met nor excused, we reverse and remand for resen-tencing.

FACTS

Appellant Brian Lee Maley was in a hotel room in Ada when Norman County sheriffs deputies entered to execute an arrest warrant on a woman who was with Maley. Deputies searched the hotel room, uncovering drug paraphernalia, two bags containing a total of 29 grams of methamphetamine, and 50 grams of a liquid that tested positive for methamphetamine. The state charged Maley in a three-count complaint, alleging that he manufactured, possessed, and conspired to sell a controlled substance.

On October 6, 2004, Maley pleaded guilty to an amended charge of one count of second-degree controlled-substance possession, in violation of Minn.Stat. § 152.022, subd. 2(1) (2002). Maley’s counsel told the court that in exchange for the plea, the state would recommend that Maley “receive an executed guideline sentence at the low end of the [sentencing guidelines] box [and] would bear any risk as to his criminal-history score. And we believe it will be zero to two, but he bears that risk.” The district court ordered a pre-sentence investigation and scheduled the sentencing hearing for November 10, 2004.

A probation officer conducted the investigation. The resulting sentencing worksheet for Maley listed, without substantiating, four felony — level California convietions-two in 1995 and two in 1999— to apply to Maley’s criminal-history score and presumptive sentence, weighting each conviction at .5. At the November 2004 sentencing hearing, Maley’s counsel requested a continuance to “look into” a “mistake on the pre-sentence investigation,” without specifying the nature of the mistake. The state did not object.

At the continued hearing in December 2004, Maley’s counsel told the court that he had twice spoken with the probation officer to request authenticated support for the alleged California convictions:

I talked to [the probation officer] about what my objections were and indicated that we needed the actual records from these counties [in California, where appellant’s prior convictions occurred], rather than just [the probation officer’s] phone calls and her representations because I thought ... we needed something in writing [and] something to confirm what [Maley] actually was convicted of and sentenced to in these out-of-state jurisdictions to correctly determine what his criminal history would be.

The state’s attorney conceded that the probation officer “had not been able to request [the California records] as of yet.” The court continued the sentencing proceeding until January 19, 2005, declaring that if the state failed to produce certified copies of the convictions by then, “we’ll have to just presume it’s a zero criminal-history score.”

Before the January 2005 sentencing, the probation officer obtained uncertified documents concerning one of the 1995 convictions, increased that conviction’s weight to 1.5 points, and determined that the other alleged 1995 conviction should not be included in Maley’s , criminal-history score. Although the probation officer never produced documentary support for the 1999 convictions, she did not remove them from the sentencing worksheet. The state therefore proposed that Maley’s documented 1995 conviction and the undocumented, alleged 1999 convictions would together weigh 2.5. The district court sentenced Maley to 64 months’ imprisonment based on the criminal-history score of 2.5. Although the court did not state how it calculated the score, it appears to have followed the worksheet and assigned a weight of 1.5 to the documented 1995 conviction and .5 to each of the two challenged, undocumented 1999 convictions.

Maley moved to correct his sentence, arguing that the 1995 conviction should be reduced from 1.5 to .5 and that the court must disregard the undocumented 1999 convictions. The state conceded that the 1995 conviction should be weighted only at .5. On March 7, 2005, the district court ordered the sentence corrected to 54 months based on a criminal-history score of 1.5. The order again did not describe how the district court calculated Maley’s criminal-history score, but it appears that the district court assigned a weight of .5 to Maley’s documented 1995 conviction based on the state’s concession and again assigned .5 to each of the two undocumented 1999 convictions. This appeal follows, with Maley contesting the district court’s decision to include the undocumented 1999 convictions in determining his sentence.

ISSUE

Did the district court abuse its discretion by including Maley’s undocumented out-of-state convictions when calculating his criminal-history score?

ANALYSIS

The district court was obliged to address the effect of Maley’s alleged prior convictions in deciding Maley’s sentence for the present drug offense. Minnesota’s Sentencing Guidelines “provide uniform standards for the inclusion and weighting of criminal history information that are intended to increase the fairness and equity” in determining a defendant’s criminal-history score. State v. Reece, 625 N.W.2d 822, 824 (Minn.2001) (quotation omitted). The guidelines direct that out-of-state felony convictions be included in a defendant’s criminal-history score. Id.

But the district court may not use out-of-state convictions to calculate a defendant’s criminal-history score unless the state lays foundation for the court to do so. “The state ... has the burden at a sentencing hearing of establishing the facts necessary to justify consideration of out-of-state convictions in determining a defendant’s criminal history score.” State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983). The state must establish by a fair preponderance of the evidence that the prior conviction was valid, the defendant was the person involved, and the crime would constitute a felony in Minnesota. State v. Griffin, 336 N.W.2d 519, 525 (Minn.1983). The district court’s determination of a defendant’s criminal-history score will not be reversed absent an abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561 (Minn.App.2002), review denied (Minn. Aug. 20, 2002); Minn. Sent. Guidelines cmt. II.B.504 (“It was contemplated that the sentencing court, in its discretion, should make the final determination as to the weight accorded foreign convictions.”).

Maley argues that the state failed to establish by a fair preponderance of the evidence the facts necessary to apply the 1999 convictions listed on his sentencing worksheet and that the district court therefore abused its discretion by applying those convictions to increase his criminal-history score. The state acknowledges that it did not provide the court with certified copies of the alleged 1999 convictions, but it argues that the district court properly considered those convictions because (1) the supreme court has rejected a requirement that the state present certified copies of out-of-state convictions, (2) Maley did not dispute that he committed the offenses, (3) Maley failed .to identify adequately which convictions were in dispute and the nature of the dispute, and (4) Maley waived his right to challenge his criminal-history score by expressly assuming the risk of that score during his plea agreement.

The state accurately identifies the general precedent that the absence of a certified record of an out-of-state conviction does not require exclusion of that conviction per se. But this alone cannot support the district court’s application of Maley’s California convictions. Although the supreme court has rejected the “absolute requirement” that the state present certified copies of prior convictions, it adopted Minnesota Rule of Evidence 1005 as the “appropriate standard” to document a conviction. Griffin, 336 N.W.2d at 525. The rule provides:

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If' a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

Minn. R. Evid. 1005. Other evidence of the contents of official records may include oral testimony. Minn. R. Evid. 1005 1977 comm, cmt.; see State v. Jackson, 358 N.W.2d 681, 683 (Minn.App.1984) (holding a probation officer’s statement to the court detailing his search for defendant’s foreign felony record to be sufficient under Rule 1005 to support a prior conviction). Griffin does not relieve the state of its burden to prove out-of-state convictions by a preponderance of the evidence; rather, it permits the district court to rely on persuasive evidence that sufficiently substitutes for the official, certified record of conviction.

This turns us to the implicit question of whether the state proved by a fair preponderance of the evidence that Maley committed the 1999 crimes in California. “Fan" preponderance of the evidence means that it must be established by a greater weight of the evidence. It must be of a greater or more convincing effect and ... lead you to believe that it is more likely that the claim ... is true than ... not true.” State v. Wahlberg, 296 N.W.2d 408, 418 (Minn.1980). Our review of the sentencing record convinces us that the state failed to introduce evidence sufficient to meet this standard. The state’s situation here does not compare favorably with its situation in Griffin, when in lieu of a certified record of conviction it presented “considerable documentation” that proved the defendant “had been convicted” of the out-of-state offense. 336 N.W.2d at 525. It also compares unfavorably with the state’s position in Jackson, when it provided the district court with the in-court “advice and testimony” of the probation officer, who detailed for the court the various documents from federal and state probation and law-enforcement agencies verifying the defendant’s arrest, guilty plea, sentence, and his identifying personal information. 358 N.W.2d at 683. The transcripts of proceedings here as they developed in October, November, and December 2004, and January 2005, as well as the documents discussed in them, present no evidence admissible under rule 1005 supporting the existence of the two challenged California convictions. We must therefore reverse the sentence to the extent it relies on these convictions, unless the state’s various waiver arguments convince us otherwise. For the reasons that follow, they do not.

We see no support for the state’s contention that Maley accepted the fact of the convictions and disputed only their impact on the court’s sentencing computation. It is true that a sentencing court acts within its discretion when it includes uncertified, but clearly conceded, out-of-state convictions in computing a defendant’s criminal-history score. See State v. Dixon, 415 N.W.2d 414, 419 (Minn.App. 1987), review denied (Minn. Jan. 20, 1988) (affirming sentence after noting that appellant “does not dispute the fact of conviction, but only the failure to provide better documentation of the conviction”); see also Griffin, 336 N.W.2d at 525 (observing that “the defendant’s attorney on appeal apparently does not really dispute the fact that defendant has a prior conviction”). By contrast here, the transcripts show that Maley consistently requested documents necessary to prove the existence of the convictions, or, as his counsel stated at the December 2004 hearing, “something in writing [and] something to confirm what [Maley] actually was convicted of and sentenced to in these out of state jurisdictions.” Maley’s counsel had previously contended that there “is a mistake” in the investigation that the court must address, and, noting Maley’s challenge to the existence of the convictions, the court indicated — without objection — that it would “presume it’s a zero criminal-history score” unless the state could provide adequate proof of the convictions. By challenging the existence of the California convictions, Maley demonstrated no Dixon concession.

We also are not persuaded by the state’s assertion that because Maley failed to more specifically describe his objections, the state could not know precisely which of the convictions he was challenging. The record reflects that the parties and the district court referred universally to “the convictions” in discussing Maley’s challenge to his criminal history. In context, the term “the convictions” plainly includes all four convictions alleged on the sentencing worksheet. The district court recognized that Maley’s challenge, if unmet, would result in a “zero criminal history score.” This supports our conclusion that Maley’s challenge was sufficiently understandable to so inform the state. And even if Maley’s challenge was unclear, the district court’s challenge was not; it obligated the state to respond with certified records (or, implicitly, rule 1005 evidence) proving the existence of all the convictions — thereby resolving any doubt about the scope of Maley’s challenge.

Finally, we also disagree with the state’s contention that Maley’s agreement to “bear any risk” of his criminal history constituted an express waiver of his right to challenge the admission of the convictions and the corresponding criminal-history score on his sentencing worksheet. “It is generally possible to forfeit constitutional or statutory rights with a knowing, intelligent, and voluntary waiver.” Ballweber v. State, 457 N.W.2d 215, 217 (Minn.App.1990); see also United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) (stating that “waiver is the intentional relinquishment or abandonment of a known right” (quotation omitted)). But “[whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.” Olano, 507 U.S. at 733, 113 S.Ct. at 1777. At the pre-sentencing hearing, Maley’s counsel stated: “[Maley will] bear any risk as to his criminal-history score. And we believe it will be zero to two, but he bears that risk.” Arguing that this statement constitutes a waiver, the state asks that we accept as a matter of law that the statement reflects Maley’s express intent to relinquish a known — and waivable — right and his willingness to be sentenced based on whatever criminal history score (factually supported or not) the state might later assert. Neither the record nor controlling case law permits such a conclusion.

First, the statement was made by Ma-ley’s attorney and adopted by Maley through general reference only. Cf. Minn. R.Crim. P. 26.01 (authorizing a defendant to waive a right to a jury trial “provided the defendant does so personally in writing or orally upon the record in open court”). During a colloquy with Maley, neither the court, nor Maley’s attorney, nor even the state’s attorney attempted to establish that Maley understood that the vague reference to “bear[ing] any risk as to his criminal history score” constituted Maley’s knowing and intelligent agreement to accept whatever unsubstantiated out-of-state conviction the state might later claim.

Nor does it appear from the record that the state understood defense counsel’s statement to constitute a waiver of Maley’s challenge to his criminal history. The state did not raise the waiver argument before the district court. Instead, the record reflects that after the October hearing, the state acknowledged the existence and validity of Maley’s objections to the sentencing worksheet and was attempting— albeit ineffectively — to satisfy those objections by documenting all of the out-of-state convictions. .At the November hearing, the state had no objection when Maley asked for a continuance on the ground that Maley had noticed “a mistake on the pre-sentence investigation” and requested the opportunity to “look into that and to address that with the court.” The state also did not object at the December hearing when the court accepted Maley’s documentation challenge and announced that it would presume a “zero” criminal-history score. Finally, even at the January 2005 sentencing, the state did not assert that the original “bear-any-risk” language constituted Maley’s absolute waiver to challenge any out-of-state convictions. The state’s argument to the district court was silent as to waiver and consisted only of the following:

And probation has attempted to request — has made the request for the documents. These are the only documents they have received. It was anticipated that there may be up to two criminal history points at the time of the plea offer in the plea in this matter. I assert to the court that the sentencing worksheets are correct. And I guess I’d just leave it up to the court’s discretion to decide which — to determine the sentencing in this matter.

We cannot conclude on this record that the statement of Maley’s counsel constituted a knowing, intelligent, and voluntary waiver of Maley’s right to challenge his criminal-history score.

Second, even were we to conclude that the statement accurately reflected Maley’s knowing intent to relinquish his right to challenge the sentence, it would have no legal effect because a defendant’s right to appeal an illegal sentence cannot be waived. See Ballweber, 457 N.W.2d at 218 (stating that the “unconditional nature of the statutory right [to appeal any sentence pursuant to Minn.Stat. § 244.11, subd. 1] and the importance of judicial determination of sentences under the Minnesota sentencing scheme precludes us from holding that a defendant in Minnesota may waive the right to appeal from a sentence”); see also State v. Maurstad, 706 N.W.2d 545, 549 (Minn.App.2005) (“Because a criminal defendant cannot waive the right to appeal a sentence, we conclude that the postconviction court erred by finding that appellant had waived his right to appeal his criminal history score, a factor in calculating his sentence, because he did not object to the score at trial.”). This absolute right to appeal an illegal sentence further indicates that the state’s burden to properly substantiate pri- or convictions does not change based on the perception — erroneous or not — that a defendant will not challenge his criminal-history score.

The alleged convictions are insufficiently documented to augment Maley’s sentence. Maley’s conduct during the sentencing process did not relax the state’s burden to prove his conviction, and, in any event, Maley’s right to challenge his sentence could not be waived. We therefore conclude that the state failed to meet its burden of proof regarding the alleged 1999 California convictions.

DECISION

The district court abused its discretion by including the challenged and undocumented 1999 convictions when calculating Maley’s criminal-history score. It therefore miscalculated Maley’s sentence. We reverse and remand for resentencing consistent with this opinion.

Reversed and remanded.