author: ANDERSON, PAUL H., Justice.

text:
    STATE of Minnesota, Respondent, v. William Arthur ANDERSON, Appellant.
    No. A05-1167.
    Supreme Court of Minnesota.
    June 14, 2007.

      G. Tony Atwal, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    John J. Muhar, Itasca County Attorney, Grand Rapids, MN, for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

The Itasca County District Court placed William Arthur Anderson on probation after he pleaded guilty to felony burglary in 1995. Five years later, the court discharged Anderson from probation and ordered that his felony conviction be deemed a misdemeanor under Minn.Stat. § 609.13, subd. 1 (2006). Anderson was later convicted of another felony and again placed on probation. Four months after sentencing, he signed a probation agree-, ment requiring him to permit warrantless, suspicionless searches of his person and property. Approximately six months later, Anderson’s probation officer received a tip that Anderson had guns at his residence and as a result, the probation officer conducted a warrantless search of Anderson’s residence and seized two guns. Anderson was subsequently charged with being a felon in possession of a firearm. Anderson pleaded not guilty and moved the district court to suppress the guns as products of an unconstitutional search. The district court denied the motion, and a jury found Anderson guilty as charged. The court then sentenced Anderson to 60 months in prison.

Anderson appealed to the court of appeals, arguing that the district court erred when it refused to suppress the guns. He also argued that the court erred in applying the firearm prohibition statute to him because under section 609.13, his 1995 conviction was not for a statutorily defined crime of violence. The court of appeals affirmed as to both issues, and we granted Anderson’s petition for further review. Because we conclude that the district court did not err in applying the firearm prohibition statute to Anderson and that the search of Anderson’s residence was reasonable under the totality of the circumstances, we affirm.

In 1995, appellant William Arthur Anderson pleaded guilty in Itasca County to second-degree burglary, a felony under MinmStat. § 609.582, subd. 2 (2006). The Itasca County District Court stayed imposition of Anderson’s sentence and placed him on supervised probation for five years. In 2001, the court discharged Anderson from probation and ordered his felony burglary offense be deemed a misdemeanor under Minn.Stat. § 609.13, subd. 1(2) (2006). Approximately three years later, Anderson pleaded guilty in Itasca County to fifth-degree controlled substance crime, a felony under Minn.Stat. § 152.025, subds. 2(1), 3(a) (2006). The court stayed adjudication of the crime and placed Anderson on supervised probation for five years. Approximately four months after Anderson’s sentencing hearing, he signed a probation agreement. One of the conditions listed on this agreement — general condition 6 — required him, “when ordered by [his] Agent, [to] submit to search of [his] person, residence, or any other property under [his] control.” Anderson now alleges that this search condition is invalid because it was not imposed by the district court at sentencing.

The facts surrounding the alleged unconstitutional search are as follows. On September 20, 2004, Investigator Greg Snyder of the Itasca County Sheriffs Department learned from the mother of Anderson’s girlfriend that Anderson had been arrested in Superior, Wisconsin and had posted bail. Snyder telephoned the Superior Police Department, which confirmed that Anderson had been arrested for domestic assault against his girlfriend. Snyder then telephoned Anderson’s probation officer, Anthony Athmann, and left a voicemail message regarding what he had learned. On the same morning, Athmann received a telephone call from a person who identified herself as the mother of Anderson’s girlfriend. The caller told Athmann that Anderson had assaulted her daughter in a Superior, Wisconsin hotel room. The caller also told Athmann that according to her daughter, Anderson kept guns under his bed and a large amount of methamphetamine in a secret room behind his clothes dryer.

After receiving this call, Athmann telephoned the Superior police department and confirmed that Anderson had been arrested for domestic assault. Athmann attempted to reach Anderson to discuss the alleged assault, but was unable to do so. Athmann then obtained permission from his supervisor to search Anderson’s residence. Later that day, Athmann, Snyder, and Deputy Mike Olson traveled to Anderson’s residence, where Anderson’s son allowed them to enter. The officers encountered Anderson on entering the residence, and Athmann told Anderson that he was there to conduct a search in keeping with general condition 6 of Anderson’s probation agreement. Anderson responded, “[T]hat’s fine. I’ve got nothing to hide.”

Athmann and Snyder searched Anderson’s bedroom and found one 20-gauge shotgun and one .22 caliber semiautomatic rifle under Anderson’s bed. Shortly thereafter, the state charged Anderson with one count of being a felon in possession of a firearm in violation of Minn.Stat. §§ 609.165, subd. lb, 609.11 (2006). Anderson pleaded not guilty and moved the district court to suppress the guns as fruits of a nonconsensual, warrant-less search conducted without probable cause, in violation of the Fourth Amendment. Based on the foregoing facts, the court denied Anderson’s motion to suppress the guns after concluding that, among other things, Anderson’s probation condition regarding searches was reasonable, and Anderson’s probation agent had reasonable grounds to search Anderson’s residence under federal Fourth Amendment jurisprudence.

The first witness to testify at Anderson’s trial was T.R., Anderson’s former girlfriend. T.R. said that she lived at Anderson’s residence from June to September 2004 and that Anderson’s son, T.A., and the son’s girlfriend also sometimes resided there that summer. T.R. said that in July, a man named Isaac S. gave Anderson a shotgun at Anderson’s residence. Anderson then gave T.R. the gun and asked her to put it under his bed. T.R. said that she placed the gun in a storage compartment under the bed, and when doing so, observed that a second gun was being stored there. She stated that she saw the same two guns in the compartment in August and in early September. She also stated that on September 19, she told her mother about the guns and the fact that Anderson had threatened her.

Probation officer Athmann testified that on September 20, T.R.’s mother telephoned him and indicated that Anderson had guns at his residence. Athmann said he then contacted Snyder, and later that day, he, Snyder, and Olson met to search the residence. Athmann stated that they encountered Anderson’s son and the son’s girlfriend a short distance from Anderson’s residence, and they accompanied the officers to the residence, where Anderson’s son allowed them to enter. Once inside, Athmann introduced himself to Anderson, who was seated in the living room. Ath-mann testified that he told Anderson he was there to search for firearms and asked where Anderson’s bedroom was located. Athmann said that Anderson pointed toward the bedroom. Athmann said that Anderson remained seated while he and Snyder proceeded to the bedroom, where he located a compartment under the bed containing one 20-gauge shotgun and one .22 caliber semiautomatic rifle. Athmann said that as Anderson was being arrested for probation violations, Anderson asked his son why he had placed the guns in Anderson’s bedroom.

The next witness was Deputy Olson. Olson’s account of the search was largely consistent with Athmann’s, but for the following details. Olson stated that after T.A. met the three officers and accompanied them to Anderson’s residence, T.A. knocked on the door. An unidentified man opened the door, and the officers stepped inside and saw Anderson in a hallway. Olson said that Athmann told Anderson the officers were there to search for a possible weapon, and the officers then asked Anderson to sit on the couch while they completed the search. Olson’s account was generally corroborated by the testimony of Snyder, except that Snyder remembered Anderson saying to T.A. as Anderson was being arrested, “I thought your mother got all your guns out of here.” Snyder also stated that no useable fingerprints were found on the two guns seized from Anderson’s residence, and both guns were originally purchased by persons who were apparently unacquainted with Anderson.

Anderson’s former wife T.D., who is also the mother of T.A., testified that she brought two guns to Anderson’s residence sometime in mid-September and gave them to T.A. for use in hunting. T.D. said that the guns she brought belonged to T.A., but she could neither describe nor identify the guns as the 20-gauge shotgun and .22 caliber semiautomatic rifle in evidence. T.A.’s girlfriend also testified that T.D. brought guns to Anderson’s residence for T.A., but the girlfriend was subsequently impeached by the playing of a recorded interview with Snyder, in which she stated that she was unaware of anyone bringing weapons into Anderson’s residence.

Anderson’s friend D.E. testified that on approximately September 13, he visited T.R. at Anderson’s residence while Anderson was in jail on probation violations. D.E. said that he saw two guns that looked like rifles on a gun rack in Anderson’s bedroom. Knowing that Anderson was prohibited from possessing guns, D.E. asked T.R. why the guns were there, and T.R. responded that T.A. brought them for hunting. T.R. also told D.E. that she would “take care of [them].”

Anderson did not testify, but his counsel asserted in closing argument that Anderson did not knowingly possess the guns because someone had brought them into Anderson’s residence while Anderson was in jail in September for probation violations. The jury apparently rejected Anderson’s version of events because it found him guilty of being a felon in possession of a firearm. The district court then sentenced Anderson to 60 months in prison. Anderson appealed his conviction to the court of appeals, arguing that he was improperly convicted of being a felon in possession because on his completion of probation for the prior felony burglary conviction, that conviction was deemed a misdemeanor by operation of Minn.Stat. § 609.13, subd. 1(2). State v. Anderson, 720 N.W.2d 854, 859 (Minn.App.2006). He also argued that the district court erred when it refused to suppress the guns as fruits of an unconstitutional search, and that he was denied a fair trial because of prosecutorial misconduct. Id. at 861, 864. The court of appeals rejected all three arguments and affirmed Anderson’s conviction. Id. at 865.

On appeal, Anderson asks us to decide (1) whether a felony burglary conviction that is later deemed a misdemeanor under section 609.13 is a “crime of violence” for the purposes of the firearm prohibition statute; and (2) whether the Fourth Amendment of the U.S. Constitution or the Minnesota Constitution requires courts to suppress evidence seized during a warrantless search of a probationer’s residence, when the probationer’s signed probation agreement contains an administratively imposed condition allowing war-rantless, suspicionless searches.

I.

Minnesota Statutes § 609.165, subd. lb(a), provides that “[a]ny person who has been convicted of a crime of violence, as defined in section 624.712, subd. 5, and who ⅛ * * possesses * ⅜ ⅜ a firearm, commits a felony.” Under Minn.Stat. § 624.712, subd. 5 (2006), “ ‘[cjrime of violence’ means: felony convictions of ⅜ * * [section] 609.582, subdivision 1, 2, or 3 (burglary in the first through third degrees).” (Emphasis added.) Minnesota Statutes § 609.13, subd. 1(2), provides that a felony conviction “is deemed to be for a misdemeanor if the imposition of the prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence.” Anderson argues that because his prior felony burglary conviction was deemed to be a misdemeanor under section 609.13 when he was discharged from probation in 2001, he was not convicted of a “crime of violence” as defined in section 624.712, subd. 5. He then asserts that because he was not convicted of a “crime of violence,” he was improperly convicted of being a felon in possession under section 609.165, subd. lb(a). Anderson concedes that he is challenging the applicability of the firearm prohibition statute for the first time on appeal, but he asks us to review his claim in the interests of justice.

We do not ordinarily decide “issues that are raised for the first time on appeal, even constitutional questions of criminal procedure.” State v. Allen, 706 N.W.2d 40, 43 (Minn.2005). But we may consider such an issue if it implicates a plain error affecting substantial rights. Id. In rare circumstances, we may also consider such an issue when the interests of justice require and when doing so would not work an unfair surprise on a party. See id. Here, Anderson does not explain why we should bypass a plain error analysis and instead consider his claim in the interests of justice, other than to note “the important liberty interest at stake.” Accordingly, we conclude that Anderson’s claim is subject to review under the plain error doctrine.

Appellate review under the plain error doctrine requires Anderson to establish (1) error; (2) that is plain; and (3) that affects his substantial rights. See State v. Manthey, 711 N.W.2d 498, 504 (Minn.2006). If all three elements are met, we will determine whether it is necessary to address the error to ensure the fairness and integrity of the judicial proceedings. Id. Whether Anderson establishes the first element — error—depends in this case on the interpretation of sections 609.13 and 624.712. We review de novo the interpretation of criminal statutes. State v. Koenig, 666 N.W.2d 366, 372 (Minn.2003). “The object of statutory interpretation is to effectuate the intent of the legislature,” and “a statute’s words and phrases are to be given their plain and ordinary meaning.” Id.

Anderson argues that under section 609.13, the discharge from probation for his 1995 felony burglary conviction not only affected the status of that conviction going forward but also altered what happened in the past, such that on discharge, he was a person who has been convicted of a misdemeanor. Accordingly, he argues that as a matter of plain language, he cannot be a person who “has been convicted of a ‘crime of violence’ ” under section 609.165, subd. lb(a), because “crimes of violence” as defined by section 624.712, subd. 5, are necessarily felonies. The state argues that under the plain language of the foregoing sections as applied in State v. Moon, 463 N.W.2d 517 (Minn.1990), the fact that Anderson’s felony conviction was later deemed a misdemeanor under section 609.13 does not change the fact that Anderson has been convicted of a crime of violence and is therefore prohibited from possessing a firearm.

In Moon, we held that a felony theft conviction later deemed a misdemeanor under section 609.13 was a crime of violence under section 624.712, subd. 5, for the purposes of the firearm prohibition statute. 463 N.W.2d at 521. In support of our holding, we reasoned that

[sjection 609.13 does not preclude the legislature from imposing consequences * ⅜ * to protect the safety of the public, based on an offender’s commission of criminal acts which also constitute felonies. In enacting section 609.165, subdivision la, the legislature intended the nature of the [prior] offense rather than the subsequent treatment of the offender to be the basis for the imposition of the firearms restriction. * * * [Tjhe definitions of the offenses listed as crimes of violence in section 624.712, subdivision 5, relate to the elements of the offense for which the defendant was originally convicted rather than the disposition subsequently imposed by the trial judge.

Id. Notwithstanding this reasoning, Anderson argues that post-Moon amendments to section 624.712, subd. 5, reveal the legislature’s intent to exclude from “crimes of violence” all felonies later deemed misdemeanors under section 609.13.

Like the current version of section 624.712, subd. 5, the 1990 version of the statute that we construed in Moon included a long list of offenses identified as crimes of violence. But in the 1990 version, only three of the numerous listed offenses were modified by the words “felony” or “felonious.” See Moon, 463 N.W.2d at 520. We explained that an analysis under section 609.13 was not required when a person committed one of the numerous offenses not modified by the words “felony” or “felonious” because section 624.712, subdivision 5, would clearly apply to any level of conviction for that offense. See id. We also stated that the legislature’s use of the words “felony” or “felonious” to modify certain listed offenses “arguably would invoke the operation of section 609.13” for those offenses. Id. But we rejected this argument because we did not believe that the legislature intended to treat offenses modified by the terms “felony” or “felonious” differently from the unmodified offenses for the purposes of the firearm prohibition statute. Id. at 520-21.

In 2003, the legislature amended Minn. Stat. § 624.712, subd. 5, to state that “ ‘crime of violence’ means[ ] felony convictions of [all listed] offenses.” Act of Apr. 28, 2003, ch. 28, art. 3 § 7, 2003 Minn. Laws 265, 292-93 (emphasis added). Anderson argues, based on Moon’s “arguably would invoke” language, that as a result of the 2003 amendment, section 609.13 is “invoked” for every offense listed in section 624.712, subd. 5.

Anderson’s effort to recast our holding in Moon in light of the amended definition of “crime of violence” is unavailing. Moon instructs courts to consider the elements of a prior offense rather than its subsequent disposition when deciding whether the offense is a crime of violence, 463 N.W.2d at 521, and Anderson fails to show that the 2003 amendments undermine the propriety of that instruction. More specifically, the relevant provision of section 609.165, subd. lb(a) — prohibiting firearm possession by “[a]ny person who has been convicted of a crime of violence” (emphasis added) — has not changed since we decided Moon. As the court of appeals stated, Anderson “ ‘has been convicted’ of felony second-degree burglary. His conviction was later deemed a misdemeanor, but that does not change his underlying conviction for the purposes of the [firearm prohibition] statute.” Anderson, 720 N.W.2d at 861 (quoting Minn.Stat. § 609.165, subd. lb).

Based on the foregoing analysis, we conclude that Anderson has not established that the district court committed error when it applied the firearm prohibition statute to him. Accordingly, no further inquiry is warranted under our plain error doctrine, and we proceed to Anderson’s search and seizure claim.

II.

We review de novo a district court’s ruling on constitutional questions involving searches and seizures. See State v. Wiegand, 645 N.W.2d 125, 129 (Minn.2002). We will not reverse the court’s factual findings unless the findings are clearly erroneous or contrary to law. Id. In this case, the court’s factual findings are not in dispute.

Anderson argues that a warrantless search of a probationer’s residence violates the Fourth Amendment unless it is predicated on reasonable suspicion and conducted under a valid search condition. He argues that in this case, his probation officer lacked reasonable suspicion to search his residence, and his probation condition was invalid because it was imposed in a manner that violated Minnesota law and the Sixth Amendment. Finally, he asks us to conclude that the Minnesota Constitution prohibits warrantless probation searches and prohibits probation conditions that allow such searches.

Before addressing Anderson’s arguments, it is helpful to briefly survey the landscape of federal and state law pertaining to probation searches. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. Warrantless residential searches and seizures are presumptively unreasonable under the Fourth Amendment. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). But the U.S. Supreme Court has held that a state’s probation system “presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause-requirements.” Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). One such special need is the state’s exercise of supervision to ensure that probationers observe the restrictions placed upon them. Id. at 874-75,107 S.Ct. 3164. Applying the foregoing principles, the Court held in Griffin that a warrant-less search of a probationer’s residence is reasonable when conducted under a state regulation, which regulation permits such searches when (1) the probation officer’s supervisor approves the search; and (2) the officer has reasonable grounds to believe the residence contains contraband. Id. at 871, 880,107 S.Ct. 3164.

Fourteen years after deciding Griffin, the Supreme Court again examined the reasonableness of a warrantless search of a probationer’s residence in United States v. Knights, 534 U.S. 112, 114, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). The Court began its analysis in Knights by adopting a totality of the circumstances approach for probation searches, in which

the reasonableness of a search is determined “by assessing, on the one hand, the degree to which [the search] intrudes upon an individual’s privacy and, on the other, the degree to which [the search] is needed for the promotion of legitimate governmental interests.”

Id. at 118-19, 122 S.Ct. 587 (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)). The Court noted that on the individual privacy side of the balance, a probationer’s status deprives him of “some freedoms enjoyed by law-abiding citizens.” Id. at 119, 122 S.Ct. 587. The Court also identified as “a salient circumstance” the fact that Knights had agreed to a probation condition, which “significantly diminished [his] reasonable expectation of privacy.” Id. at 118, 120, 122 S.Ct. 587. On the governmental interests side of the balance, the Court noted dual concerns: integrating the probationer back into the community and combating recidivism. Id. at 120-21, 122 S.Ct. 587. The Court held that in light of the facts and circumstances of Knights’ case, the balancing of private and governmental interests “require[d] no more than reasonable suspicion to conduct a search of [a] probationer’s house.” Id. at 121, 122 S.Ct. 587.

We have also recognized that as a result of the “special relationship” between probation officers and probationers, the reasonableness of “probation searches cannot be strictly governed by automatic reference to ordinary search and seizure law.” State v. Earnest, 293 N.W.2d 365, 368 (Minn.1980). In light of the demands created by that relationship — balanced against the probationer’s lowered expectations of privacy — we held in Earnest that a warrantless search of a probationer’s residence did not violate the Fourth Amendment when based on probable cause. Id. at 368-69. But we expressly declined to decide whether a warrantless probation search supported by less than probable cause would be reasonable. Id. at 369 n. 5.

Anderson asserts that under Knights, a probation search cannot comply with the Fourth Amendment unless it is supported by reasonable suspicion and conducted under a valid probation condition. We need not, and do not, reach the issue of whether absent a valid probation condition, a probation search based on reasonable suspicion violates the Fourth Amendment because we conclude that (1) the search was supported by reasonable suspicion; and (2) based on the record before us, we must presume that Anderson’s probation condition is valid. Accordingly, we are able to decide this case by balancing Anderson’s individual privacy rights against the state’s legitimate interests using Knights ’ totality of the circumstances approach.

Reasonable Suspicion

Reasonable suspicion requires “a sufficiently high probability that criminal conduct is occurring to make the intrusion on the [probationer’s] privacy interest reasonable.” Knights, 534 U.S. at 121, 122 S.Ct. 587. Reasonable suspicion is more than “an unarticulated hunch.” State v. Wasson, 615 N.W.2d 316, 320 (Minn.2000). It is “ ‘a particularized and objective basis for suspecting [a] person * * * of criminal activity.’ ” State v. Martinson, 581 N.W.2d 846, 850 (Minn.1998) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

Anderson argues that his probation officer did not have reasonable suspicion of criminal activity because (1) the officer could not be certain of the identity of the telephone caller who claimed to be T.R.’s mother; (2) the officer failed to contact T.R. to corroborate the caller’s statements; (3) the officer failed to make more than one attempt to reach Anderson to discuss the Superior, Wisconsin assault; and (4) the officer’s telephone call to the Superior police department yielded no information about whether Anderson had guns at his residence. The state argues that Athmann had reasonable suspicion based on the telephone call from T.R.’s mother even without the added credibility that her statements gained when the Superior police department confirmed that Anderson had been arrested.

We have not previously considered a challenge to the existence of reasonable suspicion in the context of a warrantless probation search. But in an unpublished opinion, the court of appeals concluded that reasonable grounds for such a search are established when a police officer relays to a probation officer that based on an informant’s tip, the probationer “had or might have guns.” State v. Grever, No. C0-97-864, 1997 WL 666098, at *1, 3 (Minn.App. Oct.28, 1997). In reaching this conclusion, the court of appeals quoted Griffin, in which the Supreme Court stated that it is “ ‘reasonable to permit information provided by a police officer, whether or not on the basis of firsthand knowledge, to support a probationer search.’ ” Grever, at *3 (quoting Griffin, 483 U.S. at 879-80, 107 S.Ct. 3164).

Here, Anderson’s probation officer had more than “an unarticulated hunch” that Anderson had guns at his residence. The telephone call from T.R.’s mother — whose identity the officer had no reason to doubt — indicated that her daughter, who lived with Anderson, had firsthand knowledge of the guns. Moreover, the caller’s statement that Anderson had been arrested in Superior, Wisconsin was corroborated when the probation officer telephoned the Superior police. As the district court noted in its findings of fact and conclusions of law, this corroboration gave added credibility to the caller’s statement regarding guns. Based on the foregoing facts, we conclude that there was a sufficiently high probability that Anderson possessed guns to make the intrusion on his privacy interest reasonable. We therefore conclude that the search of Anderson’s residence was supported by reasonable suspicion.

Validity of Anderson’s Probation Condition

Anderson argues that his probation condition is invalid because it is (1) an “intermediate sanction” that must be pronounced by a court at sentencing in order to comply with state law under State v. Henderson, 527 N.W.2d 827, 829 (Minn.1995); and (2) a term of his sentence that must be imposed in his presence under the Sixth Amendment. The state contends that these arguments are procedurally barred because Anderson raises them for the first time on appeal.

We agree that Anderson’s argument is procedurally barred. Anderson argued in the district court that the “search in question was unlawful ‘under the laws of this state’ and ‘for constitutional reasons.’ ” But this argument was too broad to put either the state or the district court on notice that Anderson was challenging the validity of his probation condition. Consequently, the state was unable to present responsive arguments or evidence, a relevant factual record was not developed, and the district court did not issue findings or conclusions on point.

As previously stated, we may consider an issue raised for the first time on appeal if the party asserting the issue proves plain error affecting substantial rights. Allen, 706 N.W.2d at 43. We conclude that under the facts of this case, Anderson has not proved that the district court committed plain error when it failed to consider whether his probation condition was validly imposed in an entirely separate proceeding. Anderson’s only evidence that his probation condition was not validly imposed is a sentencing transcript from that separate proceeding — and Anderson did not introduce the transcript in the district court below.

In rare cases, we deem it appropriate to forgo plain error review and consider — in the interests of justice — an issue raised for the first time on appeal. See Allen, 706 N.W.2d at 43. Because the record before us is silent on the circumstances surrounding the imposition of Anderson’s probation condition, we conclude that this is not such a case. We therefore further conclude that the validity of Anderson’s probation condition under Henderson or the Sixth Amendment is not properly before us and not subject to challenge in this appeal. Consequently, we must presume that the condition was validly imposed when we conduct our totality of the circumstances analysis under Knights.

Totality of the Circumstances Analysis

Our presumption that Anderson’s probation condition was validly imposed and that he therefore was “unambiguously informed of it” supports a conclusion that the condition “significantly diminished [Anderson’s] reasonable expectation of privacy.” See Knights, 534 U.S. at 119-20, 122 S.Ct. 587. More generally, Anderson’s reasonable expectation of privacy was diminished merely by virtue of his status as a probationer. See id. at 119, 122 S.Ct. 587 (“Inherent in the very nature of probation is that probationers ‘do not enjoy the absolute liberty to which every citizen is entitled.’ ” (quoting Griffin, 483 U.S. at 874, 107 S.Ct. 3164)). On the governmental interests side of the Knights balancing test, we recognize the state’s legitimate interest in ensuring that Anderson abides by the terms of his probation — one of which prohibits him from possessing a firearm. See id. at 120-21, 122 S.Ct. 587. We also acknowledge the state’s interest in protecting potential victims from illegal conduct Anderson might commit. See id. at 121, 122 S.Ct. 587. Balancing Anderson’s expectations of privacy against the government’s interests under the circumstances of this case, we conclude that the Fourth Amendment required no more than reasonable suspicion to conduct a search of Anderson’s residence. See Knights, 534 U.S. at 121, 122 S.Ct. 587.

III.

The Minnesota Constitution, like the Fourth Amendment, guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Minn. Const, art. I, § 10. Anderson asks us to interpret this guarantee to prohibit warrantless probation searches and to prohibit probation conditions that allow warrantless searches.

Looking to the state constitution as an independent basis for individual rights is a task we approach “with restraint and some delicacy,” especially when the right at stake is guaranteed by identical or substantially similar language in the federal constitution. See Kahn v. Griffin, 701 N.W.2d 815, 828 (Minn.2005). But even when the language is identical, as it is with regard to searches and seizures, we will independently apply the state constitution

when we conclude that the United States Supreme Court has made a sharp or radical departure from its previous decisions or approach to the law and when we discern no persuasive reason to follow such a departure. We will also apply the state constitution if we determine that the Supreme Court has retrenched on Bill of Rights issues, or if we determine that federal precedent does not adequately protect our citizens’ basic rights and liberties.

Id. (internal citations omitted).

The Supreme Court’s decision in Knights does not appear to be a sharp or radical departure from its previous decisions or a retrenchment on its Fourth Amendment jurisprudence with respect to probation searches. Moreover, we are not convinced that federal precedent inadequately protects our citizens’ basic rights and liberties. Accordingly, we decline Anderson’s invitation to deem the search of his residence unreasonable under the Minnesota Constitution.

For all of the foregoing reasons, we hold that the district court did not err when it refused to suppress the guns that were seized in the search of Anderson’s residence.

Affirmed.

      . Before he was sentenced, Anderson moved the court for a new trial based on evidence that T.R. gave false testimony at his trial. The court denied the motion, which is not at issue in this appeal.

      . The probation condition required Knights to submit his residence to a search "at anytime [sic], with or without a search warrant, warrant of arrest or reasonable cause.” 534 U.S. at 114, 122 S.Ct. 587.

      . Anderson also argues that even if the condition had been properly imposed, it is facially invalid under the Minnesota Constitution. For the reasons set forth in the final section of this opinion, we decline Anderson’s invitation to apply the Minnesota Constitution in the context of this case.

      . Under Minn. R.Crim. P. 28.02, subd. 8, the record on appeal consists of "the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any.” "It is well settled that an appellate court may not base its decision on matters outside the record on appeal, and that matters not produced and received in evidence below may not be considered.” Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn.1977). Appellate courts will make an occasional exception to this rule by permitting gaps in the record " 'to be [filled] by documentary evidence of a conclusive nature’ ” in order to sustain verdicts and judgments. Id. (quoting Mattfeld v. Nester, 226 Minn. 106, 123, 32 N.W.2d 291, 303 (1948)). But the production of such evidence is never allowed in an appellate court for the purpose of reversing a judgment. Plowman, 261 N.W.2d at 584.

      . Before Anderson's probation officer searched Anderson's residence, he learned that Anderson had been arrested for domestic assault in Wisconsin. Given this information, it was reasonable for the government to take action to ensure that Anderson did not have easy access to guns.


source: Caselaw Access Project

author:
ANDERSON, PAUL H., Justice.
      GILDEA, Justice

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Daniel Leslie MAURSTAD, Respondent.
    No. A04-1000.
    Supreme Court of Minnesota.
    June 14, 2007.

      Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant Polk County Attorney, Crookston, MN, for Appellant.
    Daniel Leslie Maurstad, St. Paul, MN, pro se.
   OPINION

ANDERSON, PAUL H., Justice.

Daniel Maurstad received a 129-month sentence after pleading guilty to three offenses under a plea agreement. When Maurstad negotiated the plea agreement, both he and the state assumed he would have a two-point criminal history score, which would yield a 110-month presumptive sentence. But the presentence investigation identified a prior felony conviction and corresponding probationary sentence that the parties had not taken into account. The district court then assigned two additional criminal history points — one point for the prior felony conviction and one point for custody status. After sentencing, Maurstad petitioned for postconviction relief on the ground that he should not have been assigned the custody status point. He asked to be resentenced with a three-point criminal history score, which would reduce his sentence by a minimum of two months. The court denied relief, finding that Maurstad had waived or forfeited review by failing to object at sentencing.

The Minnesota Court of Appeals reversed and remanded for resentencing. The court of appeals concluded that Maur-stad did not waive his right to appeal, that he was not required to show plain error in order to obtain appellate review, and that the district court erred by assigning the custody status point. The state petitioned for review of the following issues: (1) whether a defendant can waive or forfeit review of a criminal history score calculation; and (2) whether a custody status point may be assigned for offenses a defendant committed after discharge from an indeterminate probationary term. We affirm the court of appeals.

In July 2003, respondent Daniel Maur-stad was charged in Polk County with one count of first-degree controlled substance crime (manufacturing methamphetamine) and one count of conspiracy to manufacture methamphetamine. Ten weeks later, the state amended its complaint, adding two counts of first-degree controlled substance crime (possessing methamphetamine and possessing with intent to sell methamphetamine) and one count of failure to affix the appropriate tax stamps, labels, or other required indicia to methamphetamine. Three weeks after amending its first complaint, the state filed a separate complaint against Maurstad, alleging one count of second-degree controlled substance crime (selling methamphetamine). Six weeks later, the state again amended its first complaint, adding two assault counts.

One day before Maurstad was to go on trial for the seven counts listed in the amended complaint, his counsel moved the district court for a continuance and to permit his withdrawal as counsel. At a hearing on the motions, defense counsel stated that he and Maurstad had not been able to communicate effectively and to plan a defense. Counsel also stated that the state’s “numerous amendments” to its complaint had complicated efforts to prepare for trial and that he had not yet had a chance to talk with Maurstad about the recently-added assault charges. The court denied both motions, noting that the trial had already been postponed two or three times.

The following day, Maurstad entered three guilty pleas under a plea agreement resolving all pending charges. He pleaded guilty to one first-degree controlled substance crime, the second-degree controlled substance crime, and one misdemeanor assault. The state agreed to dismiss the remaining five counts against Maurstad. At the plea hearing, the state said Maur-stad would

be sentenced according to the Minnesota sentencing guidelines. We believe this will result in a presumptive commitment to prison for 110 months. All sentences will be imposed concurrent to one another.

(Emphasis added.) After the state recited several other terms of the plea agreement, the court asked defense counsel if the state’s understanding of the plea agreement was defense counsel’s understanding as well. Defense counsel replied that it was. At the end of the hearing, the court ordered a presentence investigation (PSI) report and set a sentencing date.

A corrections agent prepared and filed Maurstad’s PSI report. The report listed two prior convictions relevant to the determination of Maurstad’s criminal history score: a 1996 Marshall County conviction for third-degree burglary, and a 1996 Pennington County conviction for aiding burglary in the second degree. The agent assigned Maurstad four criminal history points — one point each for the Marshall County and Pennington County convictions, one point for “custody status,” and one point under Hernandez for Maurstad’s second-degree controlled substance offense. The agent assigned the custody status point after concluding that the second-degree controlled substance offense occurred within the original term of probation that Maurstad received for the Pennington County conviction.

Neither the state nor defense counsel was aware of the Pennington County conviction before Maurstad’s PSI report was completed. Therefore, when the parties negotiated the plea agreement, they had anticipated that Maurstad would have two criminal history points, not four. With four criminal history points, the presumptive duration of Maurstad’s governing sentence increased from the 110 months contemplated in the plea agreement to 134 months.

Defense counsel did not raise any objection to the PSI report or sentencing worksheets before the sentencing hearing. At the beginning of the hearing, the district court asked defense counsel if there was a need for a hearing on the factual content of the PSI report. Counsel responded that he did not anticipate Maurstad’s criminal history score would be as high as it was. But counsel stated,

I do believe that our plea agreement * * * contemplated that there were no representations made as to what the criminal history points might ultimately be. So, I really don’t know that ethically [Maurstad] can contest any of those points, just note that it wasn’t anticipated that it would be that high.

After the state asked the district court to impose the presumptive guideline sentences concurrent to one another, the court asked whether defense counsel wished to comment. Defense counsel stated,

[Ajgain I’d like to note for the Court that we originally believed [Maurstad] was looking at a presumptive commit for 110 months on Controlled Substance Crime in the First Degree. I know that we had a plea agreement and, because of that, I really don’t have the ability to argue for something against the bargain that was struck. So, I guess I really can’t contest the imposition of the guideline sentence here.

Shortly thereafter, the state indicated that it would not object to the court imposing a sentence at the low end of the guidelines range — 129 months rather than 134 — for the first-degree controlled substance offense, which was the offense that governed the sentence.

Based on a four-point criminal history score, the district court imposed a 129-month sentence. Maurstad appealed this sentence to the court of appeals. He later moved to stay his appeal so he could pursue postconviction relief, and the court of appeals granted this motion. Maurstad then petitioned for postconviction relief, asking to be resentenced with the correct criminal history score. Maurstad argued that he should not have received a custody status point because he was not under “any form” of criminal justice system custody at the time he committed the current offenses.

The record shows that Maurstad was sentenced by the Pennington County court in February 1996. At the sentencing hearing, the court noted that aiding and abetting burglary in the second degree carried a maximum statutory penalty of 10 years in prison, a $20,000 fíne, or both. The court then stated, “it is hereby ordered that the imposition of the sentence is stayed and you [Maurstad] will be placed on supervised probation * * * for a period not to exceed the statutory maximum.” Forty-five months later, in November 1999, the same court issued an order discharging Maurstad from probation for this conviction. Maurstad argued to the post-conviction court that the Pennington County court had placed him on probation for a period not to exceed the statutory maximum of 10 years, which is different from placing him on probation for 10 years. He asserted that when he was discharged from probation in 1999, his probationary term and the “initial length of stay” imposed for the Pennington County conviction were over.

The state responded by asserting that Maurstad waived his right to challenge his criminal history score by “specifically agreeing] with the information set forth in the presentence investigation report and the sentencing guidelines worksheets.” The state further asserted that at a minimum, Maurstad forfeited postconviction review by failing to voice any objection to the PSI report or sentencing worksheets at or before sentencing, and therefore had to prove plain error — a standard Maurstad had not tried to meet.

The postconviction court denied Maur-stad’s petition for relief after declining to review his criminal history score calculation. The court found that because Maur-stad did not object to the PSI report or sentencing worksheets at the time of sentencing, he waived or, at a minimum, forfeited his right to request postconviction relief on the basis of his criminal history score calculation.

Maurstad appealed to the court of appeals, arguing that the district court erred when it assigned him a custody status point as a consequence of his Pennington County conviction. The state responded that the court of appeals should refuse to consider Maurstad’s criminal history score claim on the same procedural grounds the state raised before the postconviction court. As to the merits of Maurstad’s claim, the state argued that the sentencing guidelines are unambiguous and require assignment of a criminal history score custody status point because Maurstad committed the offenses for which he was sentenced within the 10-year probationary term imposed for the Pennington County conviction.

The court of appeals held that Maurstad had not waived his right to appeal the criminal history score calculation because a court may correct an “illegal sentence” at any time, and a defendant cannot waive the right to appeal an illegal sentence. State v. Maurstad, 706 N.W.2d 545, 549 (Minn.App.2005). The court also declined to apply plain-error analysis to “unobject-ed-to errors in sentencing” — i.e., Maur-stad’s criminal history score calculation— on the ground that a defendant has an “unwaivable statutory right” to appeal his sentence. Id. Finally, the court concluded that Maurstad was not under any form of custody when he committed the current offenses, and therefore, held that the district court erred when it assigned a custody status point. Id. at 549-50.

The state petitioned for review of the court of appeals’ rulings on (1) whether a defendant can waive or forfeit review of a criminal history score calculation; and (2) whether a custody status point may be assigned when a court sentences a defendant upon conviction for an offense committed after discharge from an indeterminate probationary term.

I.

The state argues that Maurstad waived review of any issues relating to sentencing when he “specifically asked the district court to impose” the recommended sentences in the PSI report and .sentencing guidelines worksheets. The state argues in the alternative that Maurstad forfeited review of sentencing issues by failing to object to the report or worksheets at or before sentencing, and therefore must prove plain error in order to obtain review. Maurstad asserts that the state’s arguments are altogether inapplicable because a sentence based on an erroneous criminal score is an illegal sentence, and a defendant cannot waive or forfeit review of an illegal sentence. We first address the state’s waiver argument.

When a defendant has initially filed a direct appeal and then moved for a stay to pursue postconviction relief, we review the postconviction court’s decisions using the standard we would apply in a direct appeal. Santiago v. State, 644 N.W.2d 425, 439 (Minn.2002). Whether a defendant can waive or forfeit review of a criminal history score depends on how the rules of criminal procedure and certain related statutes are interpreted and is thus a question of law, which we review de novo. See State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).

The court of appeals concluded that a criminal defendant has an unwaivable statutory right to appeal a sentence and therefore cannot waive the right to appeal a criminal history score because this score is a key factor in calculating the defendant’s sentence. Maurstad, 706 N.W.2d at 549. We do not read our case law to support the court of appeals’ broad construction of a defendant’s right to appeal sentencing issues. See, e.g., State v. Henderson, 706 N.W.2d 758, 760 (Minn.2005) (recognizing that under certain circumstances, a defendant’s failure to object to sentencing issues at the time of sentencing will foreclose appellate review of those issues). What we have held is that a defendant may not waive sentencing issues in some contexts— for example, when a particular kind of sentencing error results in an illegal sentence. See, e.g., State v. Goff, 418 N.W.2d 169, 172 (Minn.1988); see also Minn. R.Crim. P. 27.03, subd. 9 (“The court at any time may correct a sentence not authorized by law.”). Thus, in Goff, we held that a defendant may challenge a criminal history score for the first time after sentencing, when the score includes a prior conviction obtained in violation of the defendant’s right to counsel. 418 N.W.2d at 172.

The court of appeals resolved the waiver issue in this case by focusing on the nature of Maurstad’s right to appeal his sentence. But we believe that the appropriate focus is on a different interest at stake — that is, the legislature’s stated public policy of achieving uniformity in sentencing. In State v. Misquadace, we acknowledged the legislature’s unequivocal statement that “[s ]entencing pursuant to the sentencing guidelines is not a right that accrues to a person convicted of a felony; it is a procedure based on state public policy to maintain uniformity, proportionality, rationality, and predictability in sentencing.” 644 N.W.2d 65, 69 (Minn.2002) (quoting Act of May 6, 1997, eh. 96, § 1, 1997 Minn. Laws 694, 695) (codified at Minn.Stat. § 244.09, subd. 5 (2006)).

In order to effectuate the foregoing policy, sentences must be based on correct criminal history scores, as these scores are the mechanism district courts use to ensure that defendants with similar criminal histories receive approximately equal sanctions for the same offense. See Minn. Sent. Guidelines I (providing that one purpose of the guidelines is to “ensure that sanctions * * ⅝ are proportional to the severity of the offense of conviction and the extent of the offender’s criminal history ” (emphasis added)). We also note that imposition of the presumptive sentence under the Minnesota Sentencing Guidelines is mandatory absent additional findings. State v. Shattuck, 704 N.W.2d 131, 141 (Minn.2005); see also State v. Pince, 358 N.W.2d 435, 438 (Minn.App.1984) (requiring a sentence reduction when a miscalculated criminal history score leads to an unauthorized departure from the presumptive sentence), rev. denied (Minn. Mar. 6, 1985).

Based on the foregoing analysis, we conclude that because a sentence based on an incorrect criminal history score is an illegal sentence — and therefore, under Minn. R.Crim. P. 27.03, subd. 9, correctable “at any time” — -a defendant may not waive review of his criminal history score calculation. Accordingly, we hold that the postconviction court erred when it declined to consider Maurstad’s criminal history score claim on the basis of waiver.

II.

The state argues that even if Maurstad could not ivaive review of his criminal history score calculation by asking the district court to impose the recommended sentences in the PSI report and sentencing worksheets, he could and did forfeit the alleged calculation error by failing to object before or at the time of sentencing as “required” by Minn. R.Crim. P. 27.03, subd. 1(D), (F). The state further argues that under Minn. R.Crim. P. 31.02, we should apply plain error review to all unobjected-to errors, including criminal history score errors. Finally, the state asserts several policy-based reasons why we should require timely objections to preserve sentencing issues, including the incentive that such a requirement would provide for defendants to take district court proceedings more seriously and to make them as error-free as possible.

We agree with the state that criminal defendants should object to any errors in their criminal history score calculations at the time of sentencing, following the process set forth in Minn. R.Crim. P. 27.03, subd. 1(D), (F). We also agree that certain policies would be served by requiring timely objections to such errors. But these points of agreement do not alter our conclusion that the receipt of a mandatory presumptive sentence — which is necessarily predicated on a correct criminal history score under the Minnesota Sentencing Guidelines — is not a defendant’s right to waive, or, logically, forfeit. As we stated in State v. Osborne, 715 N.W.2d 436, 443 (Minn.2006), “forfeiture is nothing more than ⅜ ⅜ ⅜ waiver by silence,” and we see little logic in allowing a defendant to waive by silence a criminal history score calculation that he cannot waive by affirmative act.

Moreover, we cannot agree with the dissent that Minn. R.Crim. P. 31.02 qualifies the authority of courts to correct an illegal sentence at any time. The dissent acknowledges that a defendant cannot waive review of his criminal history score calculation because this calculation implicates our authority to correct an illegal sentence “at any time” under Rule 27.03, subd. 9. But the dissent nonetheless asserts that Maur-stad could and did forfeit — i.e., waive by silence — such review, and therefore, “the only review to which [he] is entitled” under Rule 31.02 is review for plain error. We disagree with the dissent’s application of Rule 31.02 in this case as a matter of policy. Specifically, we cannot now anticipate a case in which, after concluding that a defendant received an illegal sentence, we would decline to correct it because the error that led the district court to impose the sentence was not plain.

For the foregoing reasons, we conclude that a defendant cannot forfeit review of his criminal history score calculation, and accordingly, the plain error doctrine is inapplicable in this case. We therefore hold that the postconviction court erred when it declined to consider Maurstad’s criminal history score claim on the basis of forfeiture.

III.

We next address whether the district court erred in assigning Maurstad a custody status point under Minn. Sent. Guidelines II.B.2.C. Construction of the sentencing guidelines is a question of law that we review de novo. State v. Zeimet, 696 N.W.2d 791, 793 (Minn.2005). The goal of statutory construction is to effectuate legislative intent. Id. If the statutory language is plain and unambiguous, we do not engage in any further construction and instead look to the plain meaning of the statutory language. State v. Wukawitz, 662 N.W.2d 517, 525 (Minn.2003). But when the language of a criminal law is ambiguous, we construe it narrowly according to the rule of lenity. Zeimet, 696 N.W.2d at 794.

By the time Maurstad committed the current offenses, the Minnesota Sentencing Guidelines assigned a custody status point to offenders who “committed the current offense within the period of the initial length of stay pronounced by the sentencing judge for a prior felony.” Minn. Sent. Guidelines II.B.2.C (emphasis added). Given this language, the parties are asking us to determine what “initial length of stay” the Pennington County District Court “pronounced” for the purposes of section II.B.2.C. We must make this determination in light of (1) the court’s sentencing pronouncement that, “it is hereby ordered that the imposition of sentence is stayed and you will be placed on supervised probation * ⅜ * for a period not to exceed the statutory maximum [of ten years]” (emphasis added); and (2) the fact that approximately 45 months after pronouncing this sentence and 34 months before Maurstad committed the current offenses, the same court discharged Maur-stad from probation for this conviction.

The state argues that section II.B.2.C of the sentencing guidelines is unambiguous, that Maurstad’s “initial length of stay” was 10 years, and that Maurstad’s discharge from probation after 45 months should have no bearing on his criminal history score calculation in relation to custody status. Despite the state’s initial contention that the applicable guidelines are unambiguous, we conclude that the state’s arguments center not on the unambiguous nature of the guidelines’ language, but rather on the intent behind that language. For example, the state surmises that the Sentencing Guidelines Commission’s purpose in amending section II.B.2 was to promote uniformity among Minnesota district courts in determining custody status, given widely varying practices for “early discharges” from probation. We agree with the state’s tacit recognition that the intent of the Sentencing Guidelines Commission as to section II.B.2.C is relevant here, because we conclude that the language of this section is ambiguous in light of the words the Pennington County District Court used in “pronouncing” Maurstad’s length of stay. See, e.g., State v. Colvin, 645 N.W.2d 449, 452 (Minn.2002) (stating that when the language of a criminal statute is ambiguous, legislative intent controls). Specifically, it is not clear how the phrase “initial length of stay” is to be applied in a case where a sentencing court places the defendant on probation for an indeterminate period.

In a 2002 report to the state legislature, the Sentencing Guidelines Commission summarized its amendment to section II. B.2.c by stating that

[a]n additional custody status point was given to some offenders. Offenders who are initially given probation for a period of years, but are subsequently discharged early from probation (before the time period initially pronounced by the court has run out), will receive a custody status point if the offender commits a new offense during the pronounced original period of probation.

Minn. Sent. Guidelines Comm’n, Report to the Legislature 3 (2002) (emphasis added). The report identifies the focus of section II.B.2.C as the offender who has been “discharged early from probation.” This focus is further evidenced by the language of section II.B.2.C stating that “[t]his policy does not apply if the probationary sentence for the prior offense is revoked, and the offender serves an executed sentence.” Minn. Sent. Guidelines II.B.2.C (emphasis added). We therefore conclude that the phrase “initial length of stay” refers to the initial length of a defendant’s probationary term pronounced by the sentencing judge. Thus the question is — is Maurstad an offender who has been discharged early from probation and still within the initial length of a probationary term ordered for a prior conviction? We acknowledge that this question presents a close call, but we ultimately conclude that the answer is no. See Colvin, 645 N.W.2d at 452 (stating that when we interpret penal statutes, “all reasonable doubt concerning legislative intent should be resolved in favor of the defendant”).

We conclude that if the Pennington County District Court had placed Maur-stad on probation for 10 years, he could have been “discharged early from probation” on any date before 10 years had passed and therefore still be within the “initial length of stay” when he committed the current offenses. But that is not what happened here. The Pennington County court instead placed Maurstad on probation “for a period not to exceed the statutory maximum [ten years].” (Emphasis added.) Under this sentencing order, the initial length of Maurstad’s probationary term was as short as zero years and as long as 10 years; thus, when Maurstad was discharged 45 months after sentencing, he was simply discharged from probation, not “discharged early from probation.” We therefore conclude that Maurstad’s current offenses were not committed within the probationary term pronounced by the court for the Pennington County conviction, and he should not have received a custody status point.

The state argues that placing indeterminate probationary terms outside the ambit of Minn. Sent. Guidelines II.B.2.C will render that section a nullity. Specifically, the state asserts that the purpose of the 2001 amendment to section II.B.2 was to eliminate disparate treatment of defendants based on how early they were discharged from probation for prior offenses, and treating determinate and indeterminate probationary terms differently necessarily frustrates this purpose. While the state’s argument has some merit, we find it unpersuasive because it ignores the possibility that determinate and indeterminate probationary terms may differ from one another in ways as fundamental as a defendant’s understanding of the exact terms of his sentence. It also assumes that specific word choices at sentencing do not or should not matter; but they do matter, especially when a person’s liberty is at stake. An order requiring an offender to abide by certain conditions for a period “of 10 years” or face an executed sentence is arguably more onerous than an order to do the same for a period of “up to 10 years,” even though the offender may be discharged in fewer than 10 years under either order. See Minn.Stat. § 609.135, subd. 2(f) (2006) (providing that “[t]he defendant shall be discharged six months after the term of the stay expires, unless * * * the defendant has already been discharged”); State v. Rodriguez, No. A04-2192, 2005 WL 1669493, at *2 (Minn.App. July 19, 2005) (discussing the custody status of an offender whose sentence was stayed “for 40 years” and who was discharged from probation after approximately six years), rev. denied (Minn. Sept. 28, 2005).

We also acknowledge that the state has a colorable argument that any differences that may exist between determinate and indeterminate probationary terms cannot justify the impact that our interpretation of section II.B.2.C will have on offenders. Specifically, offenders with otherwise identical criminal histories who commit new offenses will be treated differently depending on whether they were previously discharged from determinate probationary terms or indeterminate probationary terms. We nonetheless conclude that absent a clear statement from the Sentencing Guidelines Commission that a probationary term of “up to” a specified number of years is the equivalent of a probationary term “of’ a specified number of years, offenders in Maurstad’s position should not receive a custody status point. Again, we base this conclusion on our belief that in a proceeding as fundamental to a person’s liberty as sentencing, the sentencing court’s word choices do matter.

Finally, we recognize that our conclusion may require probation officers to spend some additional time completing PSI reports and sentencing worksheets, to the extent that probation officers must now determine whether a particular defendant’s probationary term was determinate or indeterminate. But in light of the numerous appeals defendants have already brought on the basis of improperly calculated criminal history scores, the efficiency that the judicial system would realize from more thorough and accurate PSI reports may offset any additional burden on probation officers. Moreover, the responsibility of probation officers and district courts to ensure the accuracy of every defendant’s criminal history score is fundamental to achieving the state’s policy of uniform sentencing under the sentencing guidelines. We believe that this responsibility outweighs any administrative concerns advanced by the state.

For the foregoing reasons, we affirm the court of appeals holding that the district court erred in assigning Maurstad a custody status point under Minn. Sent. Guidelines II.B.2.C, and we remand to the district court for resentencing using a three-point criminal history score.

Affirmed and remanded to the district court for resentencing.

GILDEA and ANDERSON, G. BARRY, JJ., dissent.

GILDEA, Justice

(dissenting).

I respectfully dissent. The issue in this case relates to the calculation of Maur-stad’s criminal history score. The district court included a custody status point based on Maurstad’s 1996 conviction for felony aiding second-degree burglary. For the 1996 crime, Maurstad received a stay of imposition of sentence and was “placed on supervised probation * * ⅜ for a period not to exceed the statutory maximum,” which was 10 years. In November 1999, pursuant to a recommendation by the agency supervising Maurstad’s probation, the district court discharged Maurstad from probation as well as from his stayed imposition of sentence. As a result, his felony conviction was deemed a misdemeanor by operation of Minn.Stat. § 609.13, subd. 1(2) (2006).

The instant case arises from criminal offenses Maurstad committed in 2003. Because Maurstad was discharged before these crimes were committed, he argues and the majority holds that the district court erred by including the custody status point. In my view, the Minnesota Sentencing Guidelines require that Maurstad’s criminal history score include the custody status point. Accordingly, I would reverse the court of appeals.

I.

We must first address whether Maur-stad is entitled to review of the district court’s decision to include the custody status point in the calculation of his criminal history score, and if so, we must decide the lens through which we will examine the issue. The majority concludes that Maur-stad did not waive review of the custody status point issue and that we should examine this issue under a plenary standard of review. I agree as to the first conclusion and disagree on the second.

As the majority notes, Maurstad pleaded guilty to the 2003 controlled substance crimes, and the district court ordered that a presentence investigation report be completed. The PSI noted Maurstad’s 1996 conviction and the fact that he was placed on probation for 0-10 years. The PSI did not indicate that Maurstad was discharged in 1999. But Maurstad submitted no objection to the PSI. Maurstad likewise made no objection at his sentencing to the PSI’s failure to indicate that he had been discharged.

The state argues that because Maurstad did not object to the custody status point, as required by Minn. R.Crim. P. 27.03, subd. 1, he waived the right to further review of the custody status point question. I agree with the majority that we should not find a waiver of this sentencing question in this case. Minnesota Rule of Criminal Procedure 27.03, subd. 9, provides that “[t]he court at any time may correct a sentence not authorized by law.” Maurstad’s argument is that his sentence is not authorized by law because the district court erroneously calculated his criminal history score. The language of our criminal rule appears to preclude a finding of waiver in this case. But the conclusion that the defendant did not waive his right to review does not dictate the lens through which the reviewing court should view the issue raised. In my view, the answer to this question is also found in our criminal rules.

Under Minn. R.Crim. P. 27.03, subd. 1(D), Maurstad was required to bring a motion for a sentencing hearing if he desired to challenge “any portion of the presentence investigation report.” The motion must “specifically set forth the reasons for the motion, including a designation of any portion of the presentence investigation report or sentencing guidelines worksheet challenged, and the grounds for the challenge.” Id. Maurstad brought no such motion. Under Minn. R.Crim. 27.03, subd. 1(F), Maurstad had the additional opportunity to raise any remaining issues during his sentencing. This portion of the rule is also mandatory, requiring that “any remaining factual or legal issues relating to the sentence shall be succinctly stated on the record.” Id. At the sentencing, the district court specifically asked defense counsel whether there was “a need for a hearing on the factual content of the PSI.” Maurstad raised no objection to what he now claims was the erroneous inclusion of the custody status point within his criminal history score. That is the time Maurstad should have raised the issue.

Because our rules required Maurstad to raise his objection before the district court, and he failed to do so, Maurstad did not preserve the issue about which he now complains. Accordingly, under our rules, the only review to which Maurstad is entitled — before this court and before the postconviction court on post-trial motions — is review for plain error. Our rule provides: “Plain errors or defects affecting substantial rights may be considered by the court upon motions for new trial, post-trial motions, and on appeal although they were not brought to the attention of the trial court.” Minn. R.Crim. P. 31.02. The clear language of Rule 31.02 compels the conclusion that our review of Maurstad’s sentencing issue, which was not “brought to the attention of the trial court,” must be for plain error. Id.

As we have said many times, application of the plain error doctrine encourages defendants to object while in the district court so that any errors can be corrected before their full impact is realized. See, e.g., State v. Ramey, 721 N.W.2d 294, 298-99 (Minn.2006). We have applied the plain error doctrine to a full range of unobject-ed-to errors, from evidentiary issues to constitutional challenges. See, e.g., State v. Martin, 695 N.W.2d 578, 582-83 (Minn.2005) (applying plain error analysis to Confrontation Clause issue); State v. Jones, 678 N.W.2d 1, 17 (Minn.2004) (applying plain error analysis to evidentiary issue). We should likewise apply the doctrine in this case.

The majority attempts to sidestep the important standard-of-review question by discussing “the legislature’s stated public policy of achieving uniformity in sentencing.” Because an accurate criminal history score is essential to achieving sentencing uniformity, the majority concludes Maurstad did not waive his right to challenge his sentence based on a purportedly inaccurate criminal history score. And because Maurstad did not waive his right to challenge his sentence, the majority holds that he also did not forfeit his right to challenge his sentence. But the majority does not articulate how it can, consistent with our criminal rules, apply a plenary standard of review here. The majority instead chooses, “as a matter of policy,” not to apply Minn. R.Crim. P. 31.02. The majority, in essence, has written an exception into Rule 31.02, that plain error will not apply when the error alleged is one related to sentencing. In my view, we should not rewrite our court rules in specific cases, as the majority does here. We have a process for revision of court rules, and that process should be followed before rules are changed. I believe that our criminal rules, as currently written, require us to analyze Maurstad’s claim through the lens of plain error.

II.

I turn next to examine whether the district court committed plain error when it included the custody status point in Maur-stad’s criminal history score. Minnesota Sentencing Guidelines II.B.2.C. requires the assignment of a custody status point if Maurstad “committed the current offense within the period of the initial length of stay pronounced by the sentencing judge for a prior felony.” Here, the district court stayed imposition of Maurstad’s sentence “for a period not to exceed the statutory maximum.” The statutory maximum for Maurstad’s crime — aiding and abetting the commission of second-degree burglary — was (and is) ten years. See Minn.Stat. § 609.582, subd. 2 (2006). Thus, “the period of the initial length of stay” was not to go beyond February 2006, ten years from the date the sentence was stayed. Maur-stad committed the crimes at issue here before February 2006. Thus, the district court did not err, much less commit plain error, in giving Maurstad the custody status point.

In reaching a contrary conclusion, the majority finds that section II.B.2.C. is ambiguous as applied to this case. Specifically, the majority concludes that the district court’s 1996 sentencing order was ambiguous when it pronounced the length of its stay of sentence imposition. In my view, the distinction the majority creates in the sentencing order so that it may find an ambiguity — between “up to 10 years,” and “for 10 years” — is one of form over substance. Moreover, the majority does not explain how an ambiguity in a district court sentencing order can render the plain language of Minn. Sent. Guidelines II.B.2.C ambiguous. In my view, there is nothing ambiguous about the phrase “period of the initial length of stay.”

In any event, the majority utilizes the ambiguity it has created in the sentencing court’s order as a basis to reach for lenity. Because there is an ambiguity, the majority holds that the principle of lenity dictates that we should interpret the district court’s 1996 sentencing order in the light most favorable to the defendant. This lenient interpretation leads the majority to conclude that Maurstad should not have been given a custody status point. Lenity does not lead me to conclude that it was plain error to give Maurstad the custody status point.

We have said that we will not invoke principles of lenity when the statute at issue is not ambiguous. State v. Loge, 608 N.W.2d 152, 156 (Minn.2000) (“[Wjhere, as here, we have interpreted the statute and find no ambiguity, ‘the so-called rule of lenity * * *’ has no application.”) (internal quotations omitted). Because I find no ambiguity in Minnesota Sentencing Guidelines II.B.2.C, I would not resort to lenity in this case.

But even if I were to find an ambiguity, lenity would not lead me to conclude that the district court erred in this case. As the United States Supreme Court has said: “The rule of lenity applies only if, after seizing everything from which aid can be derived, ⅜ * ⅜ we can make no more than a guess as to what Congress intended.” Muscarello v. United States, 524 U.S. 125, 138, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (internal quotations omitted). We have also recognized that we should not apply lenity in knee-jerk fashion but should look also to “commission policy and official commission interpretation * * * in resolving ambiguities” in the guidelines. State v. McGee, 347 N.W.2d 802, 805-06 (Minn.1984). The majority ignores a provision in the legislation establishing the guidelines and tries to bypass relevant commentary to the guidelines in reaching toward lenity.

The legislature directed that the “primary consideration” of the Guidelines Commission “shall be public safety.” MinmStat. § 244.09, subd. 5 (2006) (emphasis added). Just as important is what the commission said about the exact circumstance this case presents. With regard to the application of section II.B.2.C, the commission said:

the potential for a custody status point should remain for the entire period of the initial length of stay pronounced by the sentencing judge. An offender who is discharged early but subsequently is convicted of a new felony within the period of the initial length of stay should still receive the consequence of a custody status point.

Minn. Sent. Guidelines cmt. II.B.201.

As we said in McGee, we must consider these expressions of intent, not exclusively notions of lenity, when we are construing an ambiguous provision in the guidelines. 347 N.W.2d at 805-06. These expressions confirm for me that it was not plain error to give Maurstad the custody status point.

The result reached by the district court’s inclusion of the custody status point serves the legislature’:'? “primary consideration” of public safety. MinmStat. § 244.09, subd. 5. It is consistent with considerations of public safety for a felon with multiple convictions to be held accountable for his recidivist behavior through the use of a custody status point. See State v. McFee, 721 N.W.2d 607, 618 (Minn.2006) (“Using prior felonious behavior * * * to increase a recidivist’s sentence ⅜ * * promotes] public safety.” (internal quotations omitted)).

Not only does application of the custody status point serve the goal of public safety, but it is also what the commission plainly intended here as expressed in comment II.B.201. The majority attempts to dodge the effect of comment II.B.201. Specifically, the majority uses its concept of lenity to construe the sentencing court’s order as a decision to place Maurstad on probation for an “indeterminate” period of time. Because the probationary period was “indeterminate,” the majority concludes that the discharge in November 1999 was not an “early discharge.” Thus, the commentary in section II.B.201 is apparently not relevant to the majority. But when the record is construed in connection with the relevant statute, the commentary cannot be so easily dismissed.

The relevant statute, Minn.Stat. § 609.135, subd. 2(a) (2006), provides that for most felony convictions “the stay shall be for not more than four years or the maximum period for which the sentence of imprisonment might have been imposed, whichever is longer.” By operation of this same statute, Maurstad would have been discharged automatically six months after the expiration of the stay period pronounced by the court in February 1996, “unless the stay ha[d] been revoked or extended * ⅜ * or the defendant ha[d] already been discharged.” Minn.Stat. § 609.135, subd. 2(f). The agency supervising Maurstad asked the court, in October 1999, to discharge Maurstad. This request was necessary because without it Maurstad’s probation would have continued by operation of law. Thus, Maurstad was discharged early from probation.

The majority acknowledges that the question of whether Maurstad is “an offender who has been discharged early from probation and still within the initial length of a probationary term * * * presents a close call.” The answer to this question, however, is the foundation upon which the majority rests its conclusion that the district court erred here. The majority’s concession that the dispositive question presents a “close call,” by definition, means that the district court did not commit plain error. See State v. Strommen, 648 N.W.2d 681, 688 (Minn.2002) (“An error is ‘plain’ if it was ‘clear’ or ‘obvious.’ ”).

I would hold that the district court did not commit plain error and therefore reverse the court of appeals, and uphold the sentence as imposed.

ANDERSON, Barry G., Justice (dissenting).

I join in the dissent of Justice Gildea.

      . Under the Hernandez method of sentencing, the defendant's criminal history score includes points for prior convictions as well as a point(s) for all but the last of the current felony offenses for which the court is imposing concurrent sentences. State v. Hernandez, 311 N.W.2d 478, 480-81 (Minn.1981).

      . Under Minnesota Sentencing Guidelines II. B.2.c, an offender receives a custody status point if he offends "within the period of the initial length of stay pronounced by the sentencing judge for a prior felony, gross misdemeanor or an extended jurisdiction juvenile conviction.”

      . Maurstad also argued to the court of appeals that the district court violated his constitutional right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), by assigning him a custody status point on facts found by the court. The court of appeals rejected this argument on the basis of its previous decision in State v. Brooks, 690 N.W.2d 160, 163-64 (Minn.App.2004), rev. denied (Minn. Dec. 13, 2005). State v. Maurstad, 706 N.W.2d 545, 551 (Minn.App.2005).

      . We recognize that Osborne’s discussion of waiver and forfeiture arose in a legal context substantively different from the context we confront in this case. For example, unlike the case before us today, Osborne centers on a constitutional issue — that is, whether a defendant can forfeit his Sixth Amendment right under Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, to have a jury find the facts necessary to support an upward sentencing departure. Osborne, 715 N.W.2d at 440-41. Further, as the dissent correctly notes, Osborne concerns the actions a defendant must take under our rules of criminal procedure in order to waive the right to a jury trial, whereas this case concerns the actions a defendant must take under those rules in order to preserve a criminal history score error for appeal.
      Mindful of the differences between Osborne and this case, we do not "rely” on Osborne— as the dissent asserts — to support our conclusion on forfeiture. Rather, we cite Osborne for its exploration of the relationship between forfeiture and waiver. We stated in Osborne that we have never accepted forfeiture or "waiver by silence” as a substitute for affirmative waiver — that is, an express waiver that is “knowing, voluntary, and intelligent” — in cases when we require an affirmative waiver because of the nature of the right at stake. Id. at 443. Drawing on the discussion in Osborne, we conclude that just as it would be logically untenable to allow a defendant to waive by silence a right that he must waive by affirmative act, it would be logically untenable to allow a defendant to waive by silence an alleged error that he cannot waive by affirmative act.

      . Contrary to the dissent's apparent contention, a sentencing error does not ipso facto result in “a sentence not authorized by law” as contemplated in Minn. R.Crim. P. 27.03, subd. 9. Accordingly, our conclusion that a defendant may not forfeit review of his criminal history score does not, as the dissent asserts, create a broad exception to Minn. R.Crim. P. 31.02 for sentencing errors.

      . The Sentencing Guidelines Commission added II.B.2.C to the guidelines’ custody status provisions in 2001. Before this amendment took effect, an offender received a custody status point only if his offense occurred while the offender was “on probation, parole, supervised release, conditional release, or confined” in a penal institution, or while the offender was released pending sentencing. Minn. Sent. Guidelines Comm’n, Report to the Legislature 10 (2002). The comment associated with amended section II.B.2.C states, “The Commission believes that the potential for a custody status point should remain for the entire period of the initial length of stay pronounced by the sentencing judge.” Minn. Sent. Guidelines cmt. II.B.201 (emphasis added).

      . The dissent quotes State v. McGee, 347 N.W.2d 802, 805-06 (Minn.1984) for the proposition that when the sentencing guidelines are ambiguous, we should resolve the ambiguity by looking to "commission policy and official commission interpretation” in addition to the rule of lenity. We agree with the foregoing statement but dispute the dissent's contention that our application of Minn. Sent. Guidelines II.B.2.C to the facts of this case contravenes commission policy and official commission interpretation. It is also important to note that in McGee — a case involving a disputed guidelines provision — we ultimately resolved the provision's ambiguity in the de-fendanl's favor after applying the following principles:
      We start with the proposition that the [defendant's] argument is not necessarily inconsistent with the language of the [guidelines provision] and [related] comment. * * * In any event, even if the provision is ambiguous, defendant's interpretation should be accepted on the principles (a) that ambiguities should be resolved against the state and in the defendant’s favor and (b) that commission policy and official commission interpretation should be looked to in resolving ambiguities of this sort.

        Id. at 805-06 (emphasis added).

      . We note that in Maurstad's case, the indeterminate nature of the probationary term he received for the Pennington County conviction was clearly identifiable from the court order discharging him from probation for that conviction. Specifically, the commissioner's recommendation on the order stated that Maurstad had been “placed on probation to the Commissioner of Corrections for a period of 0-10 years.”

      . Apparently, Maurstad’s attorney was unaware of Maurstad’s 1996 conviction and 1999 discharge. Maurstad, however, was certainly aware of these events. He pleaded guilty to the crimes in 1996 and his supervising probation agency specifically moved the court for an order relieving Maurstad of the obligation of supervised probation in October 1999. Maurstad’s case is thus different from the situation we confronted in State v. Osborne where we concluded that application of the plain error doctrine was not appropriate. 715 N.W.2d 436, 445-46 (Minn.2006). In Osborne we found that the defendant was not aware of the issue that was the subject of appellate review. Id. at 443-44. Moreover, in Osborne, the applicable criminal rule specifically required that the defendant affirmatively act to waive the right at issue in that case — the right to a jury trial — either in writing or orally on the record. Id. at 442-43; see also Minn. R.Crim. P. 26.01, subd. 1(2). By contrast, in this case, the rule requires that the defendant take affirmative action to preserve the right. See Minn. R.Crim. P. 27.03, subd. 1. Thus, I find the majority’s reliance on Osborne misplaced.

      . This provision, which was not effective until 2001, applies to the crimes Maurstad committed in 2003. See Minn. Sent. Guidelines III.F ("Modifications to the Minnesota Sen-terming Guidelines and associated commentary will be applied to offenders whose date of offense is on or after the specified modification effective date.”).

      . With respect to lenity, it seems to me that what the 1996 sentencing court did in this case comports with notions of lenity. Maur-stad received the benefit of a stay of imposition of sentence. The sentencing court, in the exercise of its discretion, then gave Maurstad the longest possible stay period within which to pay the $9,676 restitution he was ordered to pay to his victim. It is plainly more lenient to give a defendant up to 10 years to pay restitution than to shorten the time period during which the defendant must make his victim whole or face greater sanctions.

      . While this commentaiy may not be binding on this court, Asfaha v. State, 665 N.W.2d 523, 526 (Minn.2003), it helps determine the intent of the drafters, which is relevant if one were to conclude, as the majority does, that section II.B.2.C. is ambiguous. This commentary confirms that the drafters intended a custody status point to be given in Maurstad’s situation.


author: HARTEN, Judge.

text:
    Mark A. CHRISTIANSEN, individually and as trustee for the heirs of Ken J. Christiansen, Decedent, et al., Respondents, v. UNIVERSITY OF MINNESOTA BOARD OF REGENTS, et al., Defendants. Wesley W. Omer, Appellant.
    No. A06-1796.
    Court of Appeals of Minnesota.
    June 12, 2007.

      Gerald J. Brown, Attorney at Law, Duluth, MN, for respondents Mark A. Chris-tiansen, Lisa Harma, Sherry Christiansen.
    Jennifer L. Frisch, Minneapolis, MN, for defendant University of Minnesota Board of Regents.
    Robert C. Barnes, McCarthy & Barnes, PLC, Duluth, MN, for defendant Jeramy Katchuba.
    Gregory J. Holly, McGuigan & Holly, PLC, St. Paul, MN, for defendant Kevin J. McGuigan.
    Matthew R. Thibodeau, Jerome D. Fer-iancek, Jr., Thibodeau, Johnson & Ferian-cek, PLLP, Duluth, MN, for appellant.
    Considered and decided by STONEBURNER, Presiding Judge; KALITOWSKI, Judge; and HARTEN, Judge.
   OPINION

HARTEN, Judge.

Appellant, a social host who provided alcohol to a minor, moved to dismiss an action brought against him under Minn. Stat. § 340A.90 (2004) on the ground that Minn.Stat. § 573.02 (2004), prescribing a three-year limitation for wrongful death actions, precludes the action. The district court denied his motion on the ground that the six-year limitation prescribed by Minn. Stat. § 541.05 (2004) governs actions brought under Minn.Stat. § 340A.90. Under Minn. R. Civ.App. P. 103.03(1), appellant then moved the district court to certify as important and doubtful the question of whether claims under Minn.Stat. § 340A.90 are governed by the limitation prescribed by Minn.Stat. § 541.05. The district court granted the motion, and appellant presents the certified question to this court. We answer the certified question in the affirmative and affirm the district court denial of appellant’s motion to dismiss.

FACTS

On 13 April 2001, Ken Christiansen, then under 21 years of age, attended a party at a residence that appellant Wesley Omer controlled. Christiansen consumed alcohol, became intoxicated, and died after falling in a creek as he attempted to walk home. Four years later, on 9 April 2005, appellant was served with the complaint in an action brought by respondents, Chris-tiansen’s sisters and father, both individually and as trustee for his heirs, under Minn.Stat. § 340A.90 (2004), establishing liability of social hosts for injuries caused by the intoxication of minors.

ISSUE

Does the six-year limitation prescribed by Minn.Stat. § 541.05 (2004) govern actions brought under Minn.Stat. § 340A.90 (2004)?

ANALYSIS

Minn.Stat. § 340A.90 (2004) provides in relevant part that a parent or other person who suffers pecuniary loss or is injured in property or means of support by the intoxication of someone under 21 years of age has a right of action against a social host (a person over 21), who controlled the premises and permitted the consumption of the alcoholic beverages that caused the intoxication. Minn.Stat. § 340A.90 provides no time limitation for bringing an action.

Respondents argue, and the district court concluded, that the relevant limitation is in Minn.Stat. § 541.05, subd. 1(2), providing that actions “upon a liability created by statute” must be brought within six years. We agree. Minn.Stat. § 340A.90, under which this action was brought, was enacted in 2000 to create a liability for social hosts. Thus, the appropriate limitation period is the six years prescribed in Minn.Stat. § 541.05, subd. 1(2), for liabilities created by statute.

While this is a case of first impression, we are guided by this court’s opinion in Wollan v. Jahnz, 656 N.W.2d 416 (Minn. App.2003), concerning a similar issue. The Wollan plaintiff was injured in a snowmobile accident caused by an intoxicated person under age 21. Id. at 417. Four years later, she sought to bring an action under Minn.Stat. § 340A.801, subd. 6 (2002) against the bar that employed the intoxicated person and provided liquor to him. Id. Minn.Stat. § 340A.801, subd. 6, provides that “[njothing in this chapter [governing actions against those who sell alcohol illegally] precludes common law tort claims against any person 21 years old or older who knowingly provides or furnishes alcoholic beverages to a person under the age of 21 years.” The bar argued, and the district court agreed, that the action was barred by Minn.Stat. § 541.07(1) (2002), providing a two-year limitation for an action for a “tort resulting in personal injury.” Id.

On appeal, this court reversed, concluding that Minn.Stat. § 541.07(1) did not apply because providing alcoholic beverages to a minor is not a tort at common law. Id. at 418. This court agreed with the plaintiff that the correct limitation is the six years provided by Minn.Stat. § 541.05, subd. 1(5) (2002), for an action “for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated.” Id. at 419.

Appellant argues that, because the instant case involves damages resulting from a death, the relevant limitation is set out in Minn.Stat. § 573.02 (2004), Action for Death by Wrongful Act, providing that, in situations other than professional negligence or murder, an action “may be commenced within three years after the date of death.” But, just as the claim in Wollan was not a tort claim, the claim here is not a wrongful death claim. A wrongful death action may be brought only by a trustee appointed by the court at the request of the decedent’s surviving spouse or next of kin. Minn.Stat. § 573.02, subd. 1, subd. 3 (2006). The claim that gave rise to this appeal was brought by the decedent’s father and sisters, in their own names, as persons “injured ... by the intoxication of another person under 21 years of age.” Minn.Stat. § 340A.90, subd. 1(a).

Appellant attempts to read into Minn.Stat. § 340A.90 the distinction between the three-year limitation for wrongful death actions prescribed by Minn.Stat. § 573.02 and the six-year limitation for actions for other injuries prescribed by Minn.Stat. § 541.05. But Minn.Stat. § 340A.90 furnishes no basis for this reading: it provides a cause of action for those injured by the intoxication of a minor without reference to whether the intoxicated minor died, was injured, or caused injury to others. Had the legislature wished to include one or more limitation periods in Minn.Stat. § 340A.90, it could have done so. But this court cannot add to a statute what the legislature has either purposely omitted or inadvertently overlooked. Ullom v. Indep. Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn.App.1994).

Finally, appellant invokes Minn.Stat. § 645.26, subd. 1 (2006), stating that, in statutory construction, the specific super-cedes the general, to argue that Minn.Stat. § 573.02 applies because it pertains specifically to liability for wrongful death, while Minn.Stat. § 541.05, subd. 1(2), pertains to any liability created by statute. This argument fails; the statutes cannot be compared on this basis. Minn.Stat. § 573.02 highlights the specific nature of the victim’s injury (wrongful death) while Minn. Stat. § 541.05, subd. 1(2), emphasizes a statutory liability that can vary with any qualifying statute.

DECISION

Because appellant’s liability in this action was created by Minn.Stat. § 340A.90 (2004), the appropriate limitation period is the six years that Minn.Stat. § 541.05, subd. 1(2) specifies for liabilities created by statute.

Certified question answered in the affirmative; affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . Because the question did not conform to Minn. R. Civ.App. P. 128.02, subd. 1(b) and contained a clerical error, we have reframed it. See State v. Larivee, 656 N.W.2d 226, 228 (Minn.2003) (“When the district court fails to properly frame the issues, the appellate court has the authority to clarify the question certified.”).

      . The three other individuals whom respondents named as defendants take no part in this appeal. Respondents also brought a wrongful death action against the University of Minnesota. That action has been dismissed and the dismissal is not challenged on this appeal.

      . Wollan was brought under Minn.Stat. § 340A.801, subd. 6 (2002), against a seller of alcohol who had provided alcohol to a person under 21; it holds that "the six-year limitations period under Minn.Stat. § 541.05, subd. 1(5) [for 'any other injury ... not arising out of contract and not hereinafter enumerated'] is the proper measure” for such damages. Id. at 420. The instant action was brought under against a social host, not a seller of alcohol, whose liability was established by Minn.Stat. § 340A.90; here, therefore, we adopt the six-year limitations period under Minn.Stat. § 541.05, subd. 1(2), for actions “upon a liability created by statute.” We see this as a difference without a distinction: both Wollan and this case hold that six years is the appropriate time limit for an action to recover for injuries caused by providing alcohol to a person under 21.