State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0311

State of Minnesota,
Respondent,

vs.

Donald Allen Ellis,
Appellant.

Filed December 26, 2017
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-10-28303

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney , Jean Burdorf, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Beau D. McGraw, McGraw Law Firm, P.A., Lake Elmo, Minnesota (for appellant)

Considered and decided by Larkin, Pr esiding Judge; Hooten, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Donald Allen Ellis appeals from the district court’s order denying, in part,
his motion for corrected sentence under Minn. R. Crim. P. 27.03, subd. 9. In sentencing
Ellis for felony identi ty theft, the district court had initially imposed a double upward

2
departure based on two aggravating factors, both of which were found by a jury: (1) Ellis
was a career offender and (2) he committed the offense as part of a group of three or more
participants. Ellis moved to correct his se ntence after it became clear that, under an
intervening Minnesota Supreme Court decision, he did not qualify as a career offender.
The district court decided that the second a ggravating factor alone justified the double
upward departure and reaffirmed the sentence.
Ellis argues that the jury’s factual finding on the second aggravating factor and the
district court’s sentencing decision were bo th “tainted” by the erroneous admission of
evidence of prior convictions to prove his caree r-offender status. He also argues that his
double upward departure is no longer justified in the absence of the career-offender factor.
Because admitting the prior convictions was not reversible plain error and the district
court’s affirmation of the upward departure based on the aggravating factor of committing
the offense as part of a group of three or more participants was not an abuse of discretion,
we affirm.
FACTS
In 2012, following a ten-day jury trial, Ellis was convicted of two counts of aiding
and abetting felony identity theft in violati on of Minn. Stat. § 609.527, subd. 2 (2008).
These convictions span separate time periods between October 2009 and February 2010.

3
A Blakely trial1 was held subsequent to Ellis’s convictions to determine whether any
aggravating sentencing factors existed that could support an upward departure. The state
argued that two factors existed. First, the state argued that Ellis was a career offender under
Minn. Stat. § 609.1095, subd. 4 (2008); the state introduced evidence of his past
convictions to support that factor. See Minn. Sent. Guidelin es II.D.2.b(9) (2008)
(identifying career-offender status as an aggravating factor). Second, the state argued that
Ellis had committed the crimes as part of a group of three or more persons who all actively
participated; the state relied on trial testimony to establish that factor. See id. at
II.D.2.b(10). The Blakely jury found beyond a reasonable doubt that Ellis (1) was a career
offender and (2) acted as part of a group of three or more participants in both offenses.
The district court sentenced Ellis to a to tal of 336 months in prison for the two
convictions. For count one, the court increased Ellis’s presumptive sentence of 95 to 132
months’ imprisonment to the statutory maximum of 240 months (20 years), reasoning that
the sentence was supported by th e jury’s findings on both aggravating factors. For count
two, the district court imposed a permissi ve consecutive sentence of 96 months, which
represented a double upward departure from the presumptive 48-month sentence. For this
count, the district court relied exclusively on the finding that Ellis was a career offender,
rejecting the jury’s finding that Ellis was an active participant in a group effort for the time
period of that conviction.

1 Following the guilt phase, a Blakely trial is held for the jury to determine whether the
state has proved beyond a reasonable doubt th e existence of any aggravating factors. See
Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537-38 (2004).

4
Following Ellis’s unsuccessful appeal of hi s convictions and sentences to this court,2
in 2015, the Minnesota Supreme Court held that a felony conviction sentenced as a stay of
imposition and ultimately reduced to a misdemeanor by operation of law does not qualify
as a prior felony conviction for purposes of Minnesota’s career-offender statute. State v.
Franklin, 861 N.W.2d 67, 70 (Minn. 2015). Ellis filed a motion for sentence correction
under Minn. R. Crim. P. 27.03, subd. 9, arguing that, under Franklin, one of his prior
convictions did not qualify as a prior felony conviction and, without it, he was not a career
offender.
The district court granted a limited evidentiary hearing to determine if Franklin
impacted Ellis’s sentence. The court determined that, in the wake of Franklin, Ellis’s 1976
forgery conviction was deemed a misdemeanor pursuant to Minn. Stat. § 609.13, subd. 1(2)
(2008), thereby reducing his total felony convi ctions to four, one below the requisite
number to qualify as a career criminal. Because Ellis’s co unt-two sentencing departure
had been based exclusively on his status as a career offende r, the district court granted
Ellis’s motion for resentencing on count two. At a later re sentencing hearing, the district
court sentenced Ellis to the presumptive 48 months for count two.
Ellis argued that Franklin required the court to also vacate his sentence on count
one because the inaccurate information the ju dge and jury heard regarding his offender
status “call[ed] into question th e entire sentence that [Ellis] re ceived in this case.” The
district court disagreed, concluding that th e upward departure on count one was still

2 State v. Ellis, Nos. A12-2345, A13-0143, 2014 WL 1875489 (Minn. App. May 12, 2014),
review denied (Minn. Aug. 5, 2014).

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justified on the basis of the remaining three-o r-more-participants aggravating factor. At
the later resentencing hearing on count two, Ellis renewed his argument about his count-
one sentence. The court again rejected it, explaining:
With regard to the argument th at the jury was corrupted by
hearing the phrase “career offender” and seeing the prior
convictions, I am finding that the other upward departure basis
was so different as to not be affected by . . . your criminal
history, and so I’m standing by my written order that count one
is not affected by the Franklin decision that . . . is forcing
resentencing on count two.

Accordingly, the district court denied Ellis’s request for a new Blakely trial and affirmed
his 20-year sentence on count one.
Ellis appeals.
D E C I S I O N
I. The district court did not err in reaffirming Ellis’s count-one sentence.

Ellis makes two arguments regarding his enhanced sentence on count one. First, he
argues that admission of evidence of his prior convictions was plain error and so tainted
the sentencing jury that he is entitled to a new Blakely trial. Second, he argues that, even
if the Blakely jury was not affected by the prior-conviction evidence, the sentencing court
was, and his enhanced sentence was an abuse of discretion. We address each argument in
turn.
A. Admission of prior convictions at the Blakely trial was not reversible
plain error.

Ellis argues that “[t]he sent encing jury was presented w ith so much evidence of
purported prior bad acts that it cannot reasona bly be expected to render an accurate

6
decision” and that, because of this, he is entitled to a new Blakely trial “where the jury is
presented only with legally allowed evidence.”
The Minnesota Rules of Evidence apply to a Blakely trial. State v. Sanchez-Sanchez,
879 N.W.2d 324, 330 (Minn. 2016). When a defendant fails to object to the admission of
evidence, our review is under the plain-error standard. See Minn. R. Crim. P. 31.02; State
v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “The plain error standard requires that the
defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.” State
v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citing Griller, 583 N.W.2d at 740). “If
those three prongs are met, we may correct the error only if it se riously affect[s] the
fairness, integrity, or public repu tation of judicial proceedings.” Id. (quotation omitted).
When the ground for the objection at trial is not the same as that raised on appeal, we
review the claim for plain error. State v. Mosley, 853 N.W.2d 789, 797 n.2 (Minn. 2014).
Ellis did not object to the introduction of his five felony convictions at the Blakely
trial on evidentiary grounds. Instead, he objected to the prior-conviction evidence only on
the basis of the alleged untimeliness of the st ate’s disclosures. Because he raises a new
objection on appeal, we review the admission of the evidence for plain error.
Ellis contends his convictio ns were inadmissible unde r Minn. R. Evid. 404(b)
because the convictions constituted prior-bad-acts evidence used to show his propensity to
commit a crime, and under Minn. R. Evid. 6 09 because the convicti ons were not proper
impeachment evidence. But the state did not introduce Ellis’s co nvictions to show
propensity or to impeach his testimony. The state introduced the convictions to establish

7
his status as a career offender. The question is whether admission of the evidence for that
purpose was plain error.
“A plain error is an error that is clear or obvious at the time of appeal.” Sanchez-
Sanchez, 879 N.W.2d at 330 (quotations omitted). In Sanchez-Sanchez, the Minnesota
Supreme Court held that, although it was an e rror not to apply the ru les of evidence to a
Blakely sentencing trial, this error was not “clear or obvious” at the time of appeal because
the court just announced the rule. Id. at 331 (“Until today, we had never clearly required
district courts to apply the rules of evidence in a Blakely court trial. Consequently, we
cannot say that the district court’s unobjected-to failure to apply the rules of evidence in
this case constitutes a clear or obvious error.”). Consistent with Sanchez-Sanchez, we must
examine whether it was “clear or obvious” at the time of Ellis’s direct appeal that admission
of his prior convictions was error.
Ellis’s direct appeal was decided by this court on May 12, 2014. Fifteen days later,
this court, in a published d ecision, decided that a “prior felony conviction” under the
career-offender statute, Minn. St at. § 609.1095, subd. 4 (20 12), did not include a felony
conviction that was deemed to be a misdemeanor under Minn . Stat. § 609.13, subd. 1(2)
(2012). State v. Franklin, 847 N.W.2d 63, 67-68 (Minn. App. 2014), aff’d, 861 N.W.2d
67 (Minn. 2015). Prior to Franklin, in cases interpreting the effect of a deemed
misdemeanor in other statutory settings, the offense was considered a felony. See, e.g.,
State v. Clipper, 429 N.W.2d 698, 701 (Minn. App. 1988) (concluding that defendant could
receive a criminal-history point for a fel ony conviction for whic h imposition of sentence
was stayed, notwithstanding a statute that provided that felony conviction for burglary on

8
which imposition of sentence was stayed wo uld appear on defendant’s records as
misdemeanor). Thus, it was only after Ellis’s sentencing and direct appeal that Franklin
made clear that his 1976 conviction, which was deemed to be a misdemeanor by operation
of Minn. Stat. § 609.13, subd. 1(2), was not a felony conviction under the career-offender
statute and consequently that introduction of evidence of his prior convictions was
improper since he could no longer qualify as a career offender. See Franklin, 861 N.W.2d
at 70. Accordingly, Ellis has failed to establish the district court’s error in admitting the
evidence was plain.
Ellis also cannot establish that the error a ffected his substantial rights. Ellis bears
the burden of establishing that there is a reasonable likelihood that the absence of the error
would have had a significant effect on the Blakely jury’s finding regarding the aggravating
factor of three or more participants in the crime. See State v. Horst , 880 N.W.2d 24, 38
(Minn. 2016) (describing subs tantial-rights prong with resp ect to jury verdict). The
evidence regarding the three-o r-more-participants factor was presented at the guilt phase
of the trial. During that phase, the jury heard extensive evidence that Ellis was “the
ringleader of a prolific identity-theft ring th at used stolen credit cards and checks to
purchase high-dollar items” throughout the Twin Cities. Ellis, 2014 WL 1875489, at *1.
That evidence demonstrated how Ellis and his accomplices misappropriated their victims’
identities. The jury h eard from 30 police officers and in vestigators, 21 victims, and,
importantly, three of Ellis’s accomplices. The jury found Ellis guilty. Id.
At the Blakely trial, the jury learned of Ellis’s prior convictions for purposes of the
career-offender question. Ellis’s career-offender status was so factually distinct from the

9
evidence presented to prove that the crime invol ved three or more active participants that
it is highly unlikely that the jury confused these two issues or improperly used Ellis’s prior
convictions to help determine that the crime for which he wa s to be senten ced involved
three or more people. Moreover, the jury had already found Ellis guilty, which implies that
the jury believed the evidence regarding the ring of accomplices that he led. Therefore, we
conclude that the district court’s admission of the prior convictions at the Blakely trial did
not affect Ellis’s substantial rights.
Because the plain-error standard is not me t with respect to the district court’s
admission of Ellis’s prior felony convictions, Ellis is not entitled to a new Blakely trial.
B. The district court did not abuse it s discretion in reaffirming the count-
one enhanced sentence based solely on the three-or-more-participants
aggregating factor.

This court reviews a district court’s de parture from the senten cing guidelines for
abuse of discretion. State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015). A district court
abuses its discretion when its reasons for departure are “improper or inadequate.” Id. at
156 (quotation omitted). Ho wever, a district court may depart from presumptive
sentencing guidelines when the record contains “substantial and compelling
circumstances” for the departure. State v. Misquadace, 644 N.W.2d 65, 69 (Minn. 2002).
The sentencing guidelines provide “a nonexclusi ve list of factors wh ich may be used as
reasons for departure.” Minn. Sent. Guidelines II.D.2 (2008).
The district court sentenced Ellis to 20 years on count one, stating on the record that
the upward departure was justified because he was a career offender and because three or
more people actively participat ed in the offense. At the evidentiary hearing on Ellis’s

10
motion to correct sentence and again at the resentencing hearing on count two, the district
court decided that the aggravating factor of three or more people alone warranted the
imposition of a double upward departure on count one.
The Blakely jury found that Ellis committed his count-one offense as part of a group
of three or more persons who all actively participated in the crime. See id. at II.D.2.b(10).
Ellis first argues that this factor cannot support a departure because it duplicates an element
of the crime. See State v. Osborne, 715 N.W.2d 436, 446 (Minn. 2006) (“[E]lements of an
offense cannot be used as a ggravating factors to impose an upward sentencing departure
for that same offense.”). However, the crim e of aiding and abetting requires only two
persons and the departure is grounded in three or more persons participating. We held in
a case involving an upward departure for a c onspiracy conviction that the three-or-more-
participants aggravating factor does not duplicate an element of the offense of conspiracy
because only two people are required for a conspiracy. State v. Ayala-Leyva, 848 N.W.2d
546, 558 (Minn. App. 2014), review denied (Minn. Aug. 5, 2014). For the same reason,
the three-or-more-participants factor is not improper here.
Ellis next asserts that the court did not rely solely on the three-or-more-participants
factor, but instead impermissibly based its up ward departure on his prior convictions.
When a district court relies on a combination of proper and improper aggravating factors
in making a sentencing decision, “we must determine whether the district court would have
imposed the same sentence absent reliance upon the improper aggravating factor.” See
State v. Stanke, 764 N.W.2d 824, 828 (Minn. 2009) (citing State v. Rodriguez, 754 N.W.2d
672, 682 (Minn. 2008)). “In doing so, we cons ider the weight given to the invalid factor

11
and whether any remaining factors found by the court independently justify the departure.”
Id. We will affirm the sentence imposed by the district court only if we can conclude from
the record that the district court would have imposed the same sentence absent its reliance
on the improper aggravating factors. Id.
Here, we know what the district court would have done absent the improper factor.
At the evidentiary hearing and the resentenci ng hearing, the district court reconsidered
Ellis’s count-one sentence based on just the three-or-more-participants factor and
concluded that the sentence remained appropria te. Because the record indicates that the
district court would have imposed—and in fact effectively did reimpose—the same
sentence absent reliance upon the career-offender factor, we need not remand the case to
the district court for further determination. See id.
Ellis also argues that the fact that three or more persons participated in the crime
“does not present the substantial and compe lling circumstances necessary to support a
double upward departure.” An upward depart ure may be supported by the presence of a
single aggravating factor, incl uding the fact that a group of three or more persons
participated in the crime. See State v. Castillo-Alvarez, 820 N.W.2d 601, 623 (Minn. App.
2012), aff’d, 836 N.W.2d 527 (Minn. 2013) (upholding upward departure on three-or-
more-participants factor).
Here, the evidence, particularly the te stimony from Ellis’s various accomplices
throughout his trial, supports the jury’s finding that three or more persons participated in
the identity-theft ring. “If the reasons given for an upward departure are legally permissible
and factually supported in the record, the departure will be affirmed.” Hicks, 864 N.W.2d

12
at 156 (quotation omitted). Because the thre e-or-more-participants factor properly
supports the departure and the district court would have “imposed the same sentence absent
reliance upon the improper aggravating factors, ” we conclude the di strict court did not
abuse its discretion in affirmi ng Ellis’s count-one sentence. See State v. Mohamed , 779
N.W.2d 93, 100 (Minn. App. 2010) (quotation omitted), review denied (Minn. May 18,
2010).
II. Ellis’s pro se claims lack merit.

Ellis raises additional arguments in his pr o se supplemental brief. First, he argues
that (1) the detective gave “perjured” te stimony by telling the jury that Ellis’s 1976
conviction was a felony, which “polluted” the Blakely trial, and (2) the jury was left with
the “false impression” that Ellis had five prior convictions and was a career offender, which
violated his due process rights because he wa s sentenced without acc urate information.
These “pollution” and “false impression” arguments are redundant of Ellis’s “taint” claim,
which has been previously addressed and rejected.
Ellis also argues that the state wit hheld favorable info rmation on his 1976
conviction in violation of Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194 (1963). In
Brady, the United States Supreme Court held th at “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irre spective of the good faith or bad faith of the
prosecution.” Id. at 87, 83 S. Ct. at 1196-97. Three components are necessary for a “true
Brady violation.” Pederson v. State , 692 N.W.2d 452, 459 (M inn. 2005) (quotation
omitted). “First, the evid ence at issue must be favorable to the accused, either because it

13
is exculpatory or it is impeaching. Second, the evidence must have been suppressed by the
state, either willfully or inadvertently. Third, prejudice to the accused must have resulted.
All three components must be met in order for a Brady violation to be found.” Id. (citations
omitted).
Ellis asserts that the state failed to provide a Bureau of Criminal Apprehension
(BCA) report prior to his Blakely trial. Presumably the mi sdemeanor designation of his
1976 conviction on the BCA report is the favorable information withheld. For a violation
to have occurred, Ellis must have been prejudiced by the prosecution’s lack of disclosure.
Id. Ellis has shown no such prejudice.
Immediately prior to the Blakely trial, and even without having the BCA report,
Ellis’s attorney agreed that he had sufficient documentation of Ellis’s prior convictions to
effectively present his case to the jury. Furthermore, the st ate did not mislead the jury
when it presented evidence of this 1976 conviction at the Blakely trial. As the district court
noted in its original sentencing order, “the evidence presented to the jury clearly stated that
the [1976] sentence was a stay of imposition,” for which Ellis was sentenced to probation.
Finally, even without receiving the report, Ellis should have already known that his 1976
conviction was deemed a misdemeanor after he successfully completed probation; he was
specifically instructed during his original sentencing hear ing that this would be the
disposition.
In sum, the record indicates that Ellis and his attorney understood the nature of his
1976 conviction and had the information necessary to effectively present his defense and

14
cross-examine the detective. Because Ellis was not prejudice d by the state’s failure to
provide him with a copy of the BCA report, his Brady violation argument lacks merit.
Affirmed.