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This opinion will be unpublished and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
A17-1239

State of Minnesota,
Respondent,

vs.

Ronald Renaldo Ulmer-Kelly,
Appellant.

Filed May 21, 2018
Affirmed
Schellhas, Judge

Hennepin County District Court
File No. 27-CR-16-26805

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

Susan L. Segal, Minneapolis City Attorney, Sarah Becke r, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Timothy Matuszak, Trice W. Okrzynski, Minneapolis, Minnesota (for appellant)

Considered and decided by Reilly, Pres iding Judge; Halbrooks, Judge; and
Schellhas, Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his conviction of second-degree drivi ng while impaired,
refusal to submit to a chemical test. We affirm.

2
FACTS
Early in the morning on October 8, 2016, a police officer responded to a dispatch
call reporting a “slumper.” The officer found appellant Ronald Ulmer-Kelly passed out in
the driver seat of his car w ith the car in drive. After Ul mer-Kelly admitted to consuming
alcohol earlier that night and “performed poorly” on a field sobriety test, the officer arrested
him. The officer read Ulmer-Kelly the im plied-consent advisory and attempted to
administer a breath test. Following Ulmer-Kelly’s noncompliance in taking the breath test,
the officer registered his failure to cooperate as a refusal to take the test.
Relevant to this appeal, respondent St ate of Minnesota charged Ulmer-Kelly with
one count of second-degree driving while impaired (DWI), refusal to submit to a chemical
test (DWI-test refusal) under Minn. Stat. § 16 9A.25, subd. 1(b) (2016), and one count of
third-degree DWI under Minn. Stat. § 169A.20, subd. 1(1) (2016). 1 Ulmer-Kelly pleaded
guilty to both counts.2
At his sentencing hearing, Ulmer-Kelly moved to dismiss the third-degree DWI
charge. The court denied Ulmer-Kelly’s motion, adjudicated him guilty on all counts, and
sentenced him for the third-degree DWI conviction.
This appeal follows.

1 Both of these statutes require the presence of an aggravating factor. An aggravating factor
includes “a qualified prior impaired driving incident within . . . ten years,” which includes
a prior DWI violation. Minn. Stat. § 169A.03, subds. 3(1), 20(1) (2016). The “aggravating
factor” here is a prior DWI conviction from October 28, 2007.
2 Ulmer-Kelly also pleaded gu ilty to possession of drug paraphernalia and possession of
marijuana, but these charges are not the subject of this appeal.

3
D E C I S I O N
Ulmer-Kelly argues that the district cour t erred by convicting him of both second-
degree DWI-test refusal and third-degree DWI because multiple convictions and sentences
under different subdivisions of the same criminal statute that arise from a single behavioral
incident are barred under Minn. Stat. §§ 609.04, .035 (2016).
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offens e, but not both.” Minn. Stat. § 609.04, subd. 1. Minn. Stat.
§ 609.04 “bars multiple convictions under different sections of a crimin al statute for acts
committed during a single behavioral incident.” State v. Henderson, 890 N.W.2d 739, 745
(Minn. App. 2017) (quotation omitted), aff’d 907 N.W.2d 623 (Minn. 2018).
This court decided a case involving identical DWI convictions in State v. St. John,
847 N.W.2d 704 (Minn. App. 2014). In St. John, the appellant pleaded guilty to second-
degree DWI-test refusal and third-degree DWI. 847 N.W.2d at 706. The district court
determined that the third-degree DWI offense was a lesser-included offense of the second-
degree DWI-test-refusal offense and adjudica ted the appellant guilty and sentenced her
only for the second-degree DWI-test-refusal co nviction and dismissed the third-degree
DWI charge. Id.
On appeal, we concluded that the thir d-degree DWI offense was not a lesser-
included offense of the second-degree DWI-test-refusal offense and that the district court
therefore was not prohibited from convicting the appellant of the third-degree DWI offense
after convicting her of the second-degree DWI-test-refusal offense. Id. at 708.

4
Here, the district court cited to St. John and concluded that neither the second-degree
DWI-test-refusal offense nor the third-degree DWI offense is a lesser-included offense of
the other. The court therefore adjudicated Ulmer-Kelly guilty of both second-degree DWI-
test-refusal and third-degree DWI. We conclude that the court did not err in convicting
Ulmer-Kelly of both offenses. We also conclude that the court properly sentenced Ulmer-
Kelly only for his conviction of third-degree DWI. See id. at 709 (concluding “that third-
degree driving under the influence is a more serious offense than second-degree test
refusal”); see also State v. Fichtner , 867 N.W.2d 242, 252 (M inn. App. 2015) (citing St.
John for proposition that third-degree driving under the influence is more serious offense
than second-degree test refusal), review denied (Minn. Sept. 29, 2015) .
Affirmed.